Citation Nr: 21001650 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-31 408A DATE: January 11, 2021 ORDER 1. New and material evidence having been received, the claim of entitlement to service connection for gastrointestinal disorder under 38 C.F.R. § 3.317 is reopened. Entitlement to service connection for gastrointestinal disorder, to include irritable bowel syndrome, is granted. FINDINGS OF FACT 1. In a final decision issued in January 2011, the RO denied the Veteran’s claim of entitlement to service connection for irritable bowel syndrome. 2. Evidence added to the record since the January 2011 prior final decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran’s claim. 3. The Veteran has a current diagnosis of irritable bowel syndrome, which is a qualifying chronic disability for purposes of 38 C.F.R. § 3.317, and manifested to a compensable degree prior to December 31, 2021. CONCLUSIONS OF LAW 1. The January 2011 rating decision which denied entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received in order to reopen a claim of entitlement to service connection for gastrointestinal disorder. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for gastrointestinal disorder as a qualifying chronic disability under 38 C.F.R. § 3.317 have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1972 to August 1992, to include service in the Southwest Asia Theatre. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously denied by the Board in an April 2018 Board decision. See April 2018 Board Decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), resulting in a July 2020 Joint Motion for Remand (JMR). The JMR specifically stated that the Board erred by failing to address whether the Veteran’s irritable bowel syndrome manifested to a compensable degree by December 31, 2021 under 38 C.F.R. § 3.317. The Court issued the JMR in order for the Board to consider and address if the new evidence received since the prior final decision in January 2011 raised a reasonable possibility that the Veteran’s irritable bowel syndrome manifested to a compensable degree. See July 2020 Court JMR. In accordance with the JMR, this matter is now back before the Board for final adjudication. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010) The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, a March 1998 rating decision, the RO denied the Veteran’s claim for service connection for gastrointestinal distress, with nausea, diarrhea, and constipation as there was no objected evidence of a chronic disability due to service. The decision was final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In September 2011, the Board notes VA medical treatment records were received. After review of these ten pages, the Board notes the evidence is not new and material as the only evidence for the claim within those medical records is a notation of a diagnosis of irritable bowel syndrome (IBS). This is not new as the Veteran’s diagnosis was noted within the prior medical records, to include the September 2010 VA examination. Then, in August 2010, the Veteran filed a new claim for service connection of IBS. In the January 2011 rating decision, the RO denied the Veteran’s claim for service connection for IBS because the evidence did not show that his IBS incurred in or was aggravated by his military service. The decision was final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In June 2012, the Veteran submitted a supplemental claim for IBS. After the new claim was received, VA provided the Veteran with a new VA examination for intestinal conditions in December 2012. In addition, the Veteran’s VA medical treatment records were received. The medical evidence added to the record included reports of abdominal cramping and diarrhea four to five times per day. See January 2016 VA Gastroenterology Consult. The Board notes the Veteran has verified service in Southwest Asia Theatre during the Persian Gulf War. Service connection also may be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2016. 38 C.F.R. § 3.317 (a) (1) (1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. The Board notes 38 C.F.R. § 3.317 states IBS is one of the illnesses covered under this presumption. As such, the Board finds the evidence submitted after the January 2011 prior final decision shows the Veteran’s IBS has amounted to a degree of at least ten percent disabling as required under 38 C.F.R. § 3.317 for presumptive service connection. Specifically, the VA medical treatment records note that the Veteran’s symptoms occur four to five times per day. See January 2016 VA Gastroenterology Consult. This meets the 10 percent rating under Diagnostic Code 7305 listing a ten percent as mild with recurring symptoms once or twice a year. See 38 C.F.R. § 4.114, Diagnostic Code 7305. As the credibility of this evidence is presumed for the purposes of reopening a claim of entitlement to service connection, the claim is granted to this extent only. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Notably, laypersons are competent to report objective signs of illness. A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2)-(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). The term Persian Gulf War veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). Service in Afghanistan is not considered Southwest Asia service for the purposes of presumptive service connection under 38 C.F.R. § 3.317(a). See Cox v. McDonald, 28 Vet. App. 318 (2016). Factual Background While the Veteran was in service, he sought treatment for some intestinal issues. The Veteran’s service treatment records (STRs) include complaints of blood in stool, renal cyst, abdominal cramping, stomach trouble, and pain in colon area. See January 1972 STR Health Record, January 1973 STR Sick Call Treatment, February 1977 STR Health Record, February 1977, STR Health Record, March 1983 STR Health Record, June 1983 STR Health Record, January 1990 STR USS Wasp Health Record, and October 1990 STR Health Record. In October 1997, the Veteran underwent a VA stomach examination. Here, the examiner noted that the Veteran’s gastrointestinal disturbances had apparently resolved as the Veteran no longer reported diarrhea and only constipation three to four times a month. See October 1997 VA Stomach Compensation and Pension Exam Report. During an August 2002 VA gastroenterology consult, the physician noted a history of colon polyps and several years of diarrhea which has worsened in the past year. It was noted that the Veteran experienced episodes of diarrhea three to four times per week. See August 2002 VA Gastroenterology Consult Note. The Veteran underwent another VA examination for intestinal conditions in September 2010. Here, the examiner noted the Veteran’s diagnosis of IBS since 2005 with an onset in 2004. The Veteran experienced diarrhea one to three times per day with occasional abdominal pain. It was noted that IBS was a diagnosis of exclusion. See September 2010 VA Intestines Compensation and Pensions Examination. The Veteran underwent another VA examination in December 2012. Here, the examiner noted the Veteran’s diagnosis of IBS with a date of diagnosis in 2004. During the examination, the Veteran claimed to have intermittent bloating and diarrhea with abdominal pain. Upon examination, the examiner noted there was evidence of bowel disturbances. See December 2012 VA Intestinal Conditions Disability Benefits Questionnaire (DBQ). The Veteran’s most recent VA examination was in January 2014. Here, the examiner noted the Veteran’s diagnosis of IBS. The Veteran’s symptoms included diarrhea but did not note the frequency of symptoms. See January 2014 VA Intestinal Conditions DBQ. In January 2016, the Veteran sought treatment with complaints of increased abdominal cramping and diarrhea occurring four to five times per day. See January 2016 VA Gastroenterology Consult. In March 2016, a colonoscopy was completed, and the physician diagnosed the Veteran with mild ulcerative colitis. See March 2016 VA Gastroenterology Procedure Note. Analysis First, the Board notes the Veteran is a Persian Gulf War Veteran as he served on active duty while in the United States Navy in the Southwest Asia Theater. Specifically, the Veteran served aboard the USS Blue Ridge. While aboard the USS Blue Ridge, he was docked in Dubai, United Arab Emirates. See January 1991 STR Health Record. Therefore, as a Southwest Asia theater Veteran, he is entitled to presumptive service connection under 38 C.F.R. § 3.317. The Veteran has a current diagnosis of IBS. See January 2014 VA Intestinal Conditions DBQ. IBS is specifically listed as a manifestation of a medically unexplained, chronic multisymptom illness under 38 C.F.R. § 3.317(b)(3). The evidence demonstrates that the Veteran’s IBS manifested to a compensable degree for at least six months. A compensable disability rating for IBS requires frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code (DC) 7319. In this case, the December 2012 and January 2014 VA examination reports note that the Veteran was diagnosed with IBS in 2004. In the Veteran’s service treatment records, there are complaints and treatment for abdominal cramping and pain, stomach pain, renal cyst, and colon pain. The Board finds that the symptoms described indicate frequent episodes of bowel disturbance with abdominal distress, thereby manifesting to a compensable degree. Specifically, the Veteran reports abdominal cramping and diarrhea occurring four to five times per day. See January 2016 VA Gastroenterology Consult. The Board finds this rises to the level of a compensable rating under DC 7305. As the Veteran is a “Persian Gulf Veteran” and IBS is considered a qualifying chronic disability under 38 C.F.R. § 3.317, the Board finds that the criteria for service connection for IBS are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the claim is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.