Citation Nr: 21063144 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-28 430 DATE: October 13, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), including as due to Persian Gulf War illness, is denied. Entitlement to service connection for tension headaches, including as due to Persian Gulf War illness, is denied. REMANDED Entitlement to service connection for fibromyalgia, including as due to Persian Gulf War illness, is remanded. Entitlement to service connection for irritable bowel syndrome, including as due to Persian Gulf War illness, is remanded. Entitlement to service connection for chronic fatigue syndrome, including as due to Persian Gulf War illness, is remanded. FINDINGS OF FACT 1. The Veteran's GERD is not etiologically attributable to service, was not incurred in service, or was incurred within one year of discharge, and are not alternatively not attributable to Persian Gulf War service. 2. The Veteran's tension headaches are not etiologically attributable to service, were not incurred in service, or was incurred within one year of discharge, and are not alternatively not attributable to Persian Gulf War service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for GERD, including as due to Persian Gulf War illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3107. 2. The criteria for entitlement to service connection for tension headaches, including as due to Persian Gulf War illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1987 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of separate rating decisions issued in June 2015 and March 2016, each promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. To the extent that subsequent filings reference the March 1, 2016 rating decision as the one on appeal, the Board concludes that instead of a new claim for benefits received on October 29, 2015, this is actually new and material evidence within one year of the previous, non-final rating decision. 38 C.F.R. § 3.156(b). The Veteran's claims on appeal were previously before the Board on February 25, 2019. The claims were all remanded so that the Veteran could be afforded adequate VA examinations on all of the issues listed on the title page, investigating entitlement to service connection on a direct basis or on a presumptive basis due to qualifying Persian Gulf War service. See Board Remand ( Feb. 25, 2019 ). Examinations were undertaken in January 2020, updated treatment records have been associated with the record and the Veteran issued a Supplemental Statement of the Case (SSOC) on June 3, 2020. The Board has concluded that there has been substantial compliance with the issues decided herein. See Stegall v. West, 11 Vet. App. 268, 271. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, the Veteran has not been diagnosed with any disease listed under 38 C.F.R. §§ 3.307, 3.309; therefore, this provision is not for application. Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). There is no competent or credible evidence that any of the claimed disorders are secondary to any already service-connected disorder, and the Veteran has never articulated such an argument or belief. The law provides compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and 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). The United States Congress has defined the Persian Gulf War as beginning on August 2, 1990, the date that Iraq invaded the country of Kuwait, through a date to be prescribed by Presidential proclamation of law. 38 C.F.R. § 3.2(i). Service connection may be granted on a presumptive basis for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1); see also 86 Fed. Reg. 51,000 (September 24, 2021) (extending the date by which a disability must manifest to a degree of 10 percent or more for purposes of 38 C.F.R. § 3.317, from December 31, 2021, to December 31, 2026). Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of presumptive service connection for Persian Gulf veterans under 38 C.F.R. § 3.317, a "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). For purposes of 38 C.F.R. § 3.317, the term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and that has features such as fatigue, pain, and/or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not to be considered medically unexplained. Id. The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Additionally, disabilities that have existed for six months or more, as well as disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4) (providing that 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). Under 38 C.F.R. § 3.317, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least six months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least three months prior to diagnosis. 38 C.F.R. § 3.317(a)(2)(i)(B)(3). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for GERD, including as due to Persian Gulf War illness, is denied. 2. Entitlement to service connection for tension headaches, including as due to Persian Gulf War illness, is denied. The Veteran contends that he suffers from GERD and tension headaches are a result of his service. In a January 2020 VA examination, the Veteran reported in the that he began to notice symptoms in 1992 consisting of basic cramping in the mid to upper stomach and acid reflux shortly thereafter. He also reported that his headaches began about 10 years ago in the May 2015 and January 2020 VA examinations. Service treatment records are negative for complaints, treatments or diagnoses related to GERD and/or tension headaches. Post-service treatment records reflect a diagnosis of GERD and chronic headaches in May 2015. See VA Treatment Record ( May 28, 2015 ). The Board has first considered whether service connection is warranted on a presumptive basis. However, the available evidence fails to show that the Veteran manifested a hiatal hernia and/or headaches to a compensable degree within the one year following his release from active duty. The earliest diagnosis of GERD and tension headaches was in May 2015, about 15 years after service. Significantly, the Veteran reported that he had been experiencing headaches for about 10 years in the May 2015 VA examination and that his headaches started about 10 years ago in the January 2020 VA examination. Therefore, presumptive service connection for a hiatal hernia and/or headaches is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, a January 2020 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's GERD and/or tension headaches were incurred in or caused by the claimed in-service injury, event or illness as his service treatment records are silent with respect to complaints, evaluation, diagnosis or treatment of the claimed condition. The examiner further noted that the Veteran checked "no" to every symptom on the Report of Medical History, that his physical examination was entirely normal and that there was no medical problems identified by either the Veteran or the examining physician. The examiner further noted that GERD is a disease with a clear and specific etiology and diagnosis. The examiner noted that the risk factors for the development of GERD include a hiatal hernia, obesity, caffeine, alcohol, smoking and drugs (e.g, anticholinergics, nitrates, calcium channel blockers, tricyclic antidepressants, opioids, theophylline, diazepam, barbiturates). The examiner further opined that tension headaches is a disease with a clear and specific etiology and diagnosis and that it is caused by muscle tension in the head and neck. Therefore, the examiner opined that it was less likely than not that the Veteran's GERD and/or tension headaches are related to a specific exposure event during his service in Southwest Asia. The examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Furthermore, the medical examination reports contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, supra. Therefore, this medical opinion is of great probative value. There is no contrary opinion of record. The Board notes that the Veteran has contended that his GERD and/or tension headaches were the result of his service, either on a direct basis or from Persian Gulf War exposures. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's GERD and/or tension headaches and any instance or event of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current symptoms, the Board accords his statements regarding the etiology of his GERD and/or tension headaches little probative value because he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issued. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran are non-probative evidence. Therefore, the preponderance of evidence is against a finding that the Veteran's claimed GERD and/or tension headaches is related to service. For the reasons above, the benefit of the doubt rule does not apply, and the claims are denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia, including as due to Persian Gulf War illness, is remanded. 2. Entitlement to service connection for irritable bowel syndrome, including as due to Persian Gulf War illness, is remanded. 3. Entitlement to service connection for chronic fatigue syndrome, including as due to Persian Gulf War illness, is remanded. The Veteran contends that he suffers from fibromyalgia, irritable bowel syndrome and chronic fatigue syndrome as a result of his service, to include his service in the Persian Gulf. The Veteran reported various gastrointestinal symptoms such as diarrhea, constipation and abdominal cramping as well as joint pain and fatigue. A January 2020 VA examiner determined that the Veteran did not meet the criteria for a diagnosis of fibromyalgia because he had a widespread pain index of two and other disorders have not been ruled out to explain his pain. The examiner noted that the American College of Rheumatology preliminary diagnostic criteria for fibromyalgia includes a widespread pain index equal to or greater than seven, that symptoms have been present at a similar level for at least three months and that the patient does not have a disorder that would otherwise explain the pain. The examiner further explained that the widespread pain index is calculated based upon the number of areas in which the patient has had pain over the past week as well as the severity of that pain over the past week. A January 2020 VA examiner found that there was insufficient objective evidence to support the diagnosis of irritable bowel syndrome and that the Veteran's reported symptoms were not consistent with a diagnosis of irritable bowel syndrome. The January 2020 VA examiner further noted that, based on the currently available medical evidence, a physician cannot make the diagnosis nor say that the condition is undiagnosable and an extensive medical evaluation over a period of time would be required to determine if these symptoms are diagnosable or not. The January 2020 VA examiner also found that the Veteran did not meet the criteria for the diagnosis of chronic fatigue syndrome as he has other medical conditions which explain his fatigue. However, the January 2020 VA examiner did not address whether the Veteran's joint pain and fatigue symptoms were due to an undiagnosed illness and did not address whether the Veteran's symptoms were a medically unexplained multi-symptom illness (MUCMI). In addition, the January 2020 VA examiner found that it would take an extensive medical evaluation over a period of time would be required to determine if the Veteran's gastrointestinal symptoms are diagnosable or not. The examiner did not specify that the inability to provide an opinion was based upon the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Given the Veteran's service in Southwest Asia and the holding of Stewart v. Wilkie, 30 Vet. App. 383 (2018), the Board finds that an additional medical examination is necessary. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, provide the claims file, to include a copy of this remand, to an appropriate medical professional for an addendum opinion as to the claimed fibromyalgia, irritable bowel syndrome and chronic fatigue syndrome. The need for another in-person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should respond to the following questions: (A) For each of fibromyalgia, irritable bowel syndrome and/or chronic fatigue syndrome, is the disability pattern consistent with: (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology. (B) The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Examples include, but are not limited to, the following: chronic fatigue syndrome; fibromyalgia; and functional gastrointestinal disorders. (C) The response to this question should include a discussion of the pathophysiology and etiology of the Veteran's claimed disability and/or reported symptomology, namely fibromyalgia, irritable bowel syndrome and chronic fatigue syndrome. Pathophysiology is defined as the physiology of abnormal states; specifically, the functional changes that accompany a particular syndrome or disease. Consideration of pathophysiology and etiology is a veteran-specific inquiry, as opposed to an inquiry regarding the general knowledge of the medical community. (D) If the Veteran's disability pattern is consistent with either (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that said disability incurred in, or is otherwise related to service, to include environmental hazards or exposures from Southwest Asia. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.