Citation Nr: 21062402 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 20-29 634 DATE: October 7, 2021 ORDER Entitlement to service connection for disability manifested by diarrhea, due to an undiagnosed illness is granted. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's diarrhea has not been attributed to a known clinical diagnosis and manifested during active duty in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The evidence is at least evenly balanced as to whether the Veteran's GERD disability is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for disability manifested by diarrhea, due to an undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2005 to August 2014. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for diarrhea and GERD. The Veteran disagreed with the RO's determination, and a Statement of the Case (SOC) was issued in August 2020 addressing the matter. The Veteran timely appealed. In September 2021, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge (VLJ). Although a transcript of that hearing has not yet been made, one is not necessary in this case as the benefits sought are being granted in full. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 U.S.C. § 1117 (a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. That period was most recently extended to December 31, 2026. See Interim Final Rule, Extension of the Presumptive Period for Compensation for Persian Gulf War Veterans, 86 Fed. Reg. 51000 (Sept. 14, 2021). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 C.F.R. § 3.317 (a)(ii). The Board notes that Congress revised 38 U.S.C. § 1117, effective March 1, 2002. In the revised statute, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness; (b) a medically unexplained chronic multi-symptom illness (including, but not limited to, chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317 (a)(2). For purposes of Gulf War undiagnosed illness claims, disabilities that have existed for six months or more, and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period, will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(2)(5). To determine whether the qualifying chronic disability is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); Stankevich v. Nicholson, 19 Vet. App. 470 (2006). In the case of claims based on undiagnosed illness or a medically unexplained chronic multi-symptom illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). 1. Disability manifested by diarrhea, due to an undiagnosed illness The Veteran's service treatment records (STRs) reflect complaints and treatment for diarrhea in April 2007, August 2008, March 2010, and December 2013. A June 2019 VA clinical record shows the Veteran exhibited symptoms of diarrhea. At his August 2020 VA examination, he credibly reported that his diarrhea began while deployed in 2009 and worsened in 2012. He noted that he uses the bathroom around five times a day with diarrhea in most. At his September 2021 Board hearing, the Veteran testified that he has experienced diarrhea daily since serving in Southwest Asia. The Veteran's STRs show the Veteran was deployed in Qatar from January 5, 2009 to July 12, 2009. His DD Form 214 shows he received the Global War on Terrorism Expeditionary Medal. This is sufficient evidence of record to conclude that the Veteran qualifies as a Persian Gulf veteran within the meaning of the applicable statute and regulation. For the following reasons, service connection for disability manifested by diarrhea due to undiagnosed illness is warranted. In this case, the Veteran qualifies as a Persian Gulf veteran and currently experiences gastrointestinal signs or systems of diarrhea, which is specifically listed as a sign or symptom of undiagnosed illness. 38 C.F.R. § 3.317 (b)(1). Moreover, the Veteran has consistently indicated that such diarrhea has persisted since service, and therefore, has persisted more than six months. See Gutierrez, 19 Vet. App. at 8-9 (lay persons are competent to report objective signs of illness). In addition, the evidence of record shows that the Veteran's diarrhea has not been attributed to a known clinical diagnosis. In an October 2018 VA medical opinion, the clinician opined that there is no current medical evidence supporting a causal relationship and/or direct relationship between the Veteran's claimed condition of diarrhea and the Veteran's environmental exposure event in Southwest Asia. The clinician noted that there is no medical evidence of a current diagnosis of any gastrointestinal condition. The August 2020 VA examiner acknowledged that there is no diagnosis of functional diarrhea. The examiner noted there is no objective medical evidence of any gastrointestinal condition outside the Veteran's reported symptoms. The examiner, however, indicated the Veteran's has symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. In this case, both the October 2018 and August 2020 VA clinicians opined that there is no current medical evidence supporting a causal relationship and/or direct relationship between the Veteran's claimed condition of diarrhea and the Veteran's environmental exposure event in Southwest Asia. Significantly, however, claims based on a qualifying chronic disability under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not require a nexus linking the condition to service; rather, they are presumptively service connected when the requirements of the statute and the regulation are met. Gutierrez v. Principi, 19 Vet. App. 1, 8 (2004). For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's disability manifested by diarrhea is due to an undiagnosed illness. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Thus, entitlement to service connection for disability manifested by diarrhea due to an undiagnosed illness is warranted. 38 U.S.C. § 5107 (b);38 C.F.R. § 3.102. 2. GERD In this case, the Veteran has met the current disability requirement. Specifically, an August 2020 VA examination report shows a diagnosis of GERD. Thus, the first element for service connection has been met. The evidence of record indicates that the in-service injury requirement has been met. The Veteran's STRs shows treatment and diagnosis of esophageal reflux in November 2008. At the Veteran's June 2014 separation examination, a diagnosis of GERD was noted. At the Veteran's September 2021 Board hearing, he testified that he experienced GERD symptoms in service, and his symptoms have continued since service. Based on the evidence contained in the Veteran's STRs and his competent and credible statements, the Board finds that the second element of service connection has been met. In an October 2018 VA medical opinion, the clinician noted that there is no medical evidence of a current diagnosis of any gastrointestinal condition. The examiner opined that there is no current medical evidence supporting a causal relationship and/or direct relationship between the Veteran's claimed condition of GERD and the Veteran's environmental exposure event in Southwest Asia. In an August 2020 VA examination report, the examiner indicated the Veteran's GERD is a disease with a clear and specific etiology and diagnosis. The examiner opined that there is no current medical evidence supporting a causal relationship and/or direct relationship between the Veteran's claimed condition of GERD and the Veteran's environmental exposure event in Southwest Asia. The examiner explained that the Veteran has a history of obesity and tobacco use of which is the likely cause of his symptoms. Also, he was noted to eat late at night which would precipitate heartburn symptoms. The examiner further explained that per the NCBI, obesity was associated with an increased risk for GERD as well as tobacco use. The examiner concluded that the Veteran's GERD is due to obesity and lifestyle. In this case, the Board finds the October 2018 and August 2020 VA opinions that the Veteran's GERD is not related to service of little probative value, as they failed to address the Veteran's GERD on a direct basis. As noted above, the Veteran's STRs shows treatment and diagnosis of esophageal reflux in November 2008. Additionally, at the Veteran's June 2014 separation examination, a clinician noted a diagnosis of GERD. Moreover, the examiners failed to consider the Veteran's competent and credible statements of GERD symptoms in service and the continuation of symptoms since separation. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence). At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The current diagnosis, STRs, the Veteran's competent and credible lay statements of GERD symptoms in and since service, are sufficient to establish that the Veteran's GERD disability is related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's GERD had its onset during service. Thus, resolving reasonable doubt in the Veteran's favor, service connection is warranted for GERD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.