Citation Nr: 21063233 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-15 316A DATE: October 13, 2021 ORDER Entitlement to service connection for a gastrointestinal disability (claimed as a stomach condition) is granted. Entitlement to service connection for dizziness (claimed as vertigo) is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's current gastrointestinal disability had its onset during his active military service. 2. The evidence is in equipoise as to whether the Veteran's current dizziness is etiologically related to his service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for dizziness are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1999 to January 2000, December 2003 to December 2004, and from March 2008 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated March 2015 and February 2016 of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in decisions dated April 2019 and April 2021, the Board remanded the matter for additional development. In November 2018, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. In letters dated August 2020 and March 2021, the Veteran was notified that the VLJ before whom he testified was no longer employed at the Board. The Veteran was given the opportunity to request a new hearing. To date, no response has been received from the Veteran. Accordingly, the Board will proceed with adjudicating this matter. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). Service connection may be granted on a presumptive basis for a Persian Gulf 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 31, 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, 8-9 (2004). Laypersons are competent to report objective signs of illness. The term "Persian Gulf 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). In this case, the Veteran's military personnel records show that he served in the Southwest Asia Theater of operations during the Persian Gulf War; therefore, the Veteran is a "Persian Gulf veteran" as defined by 38 C.F.R. § 3.317. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases)) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary 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). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a gastrointestinal disability The Veteran asserts that he currently has a gastrointestinal disability that is related to, or caused by, his active service, to include as due to exposure to environmental hazards during his service in the Southwest Asia Theater of operations during the Persian Gulf War. As an initial matter, and after resolution of all reasonable doubt in his favor, the Board finds that the Veteran has a current gastrointestinal disability. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit Court held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment of earning capacity. In Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020), the United States Court of Appeals for Veterans Claims (Court) confirmed that a disability, as defined in Saunders, "applies broadly to include more than just pain." During the November 2018 Board hearing, the Veteran testified that he experiences symptoms of stomach cramping and diarrhea after eating and that sometimes he goes days without eating because he wants to avoid the pain and having to run to the restroom. See also September 2019 VA examination report. In a March 2011 lay statement, the Veteran's spouse wrote, "He can't hold food down. It seems he[']s in the bathroom every[]time he eats something." Additionally, in a May 2014 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that his stomach condition prevented him from securing or following any substantially gainful occupation. The Board acknowledges that during his most recent VA examination in May 2021, the Veteran only endorsed continuing problems with gastroesophageal reflux disease (GERD), rather than any stomach or intestinal symptoms. Nonetheless, the Board finds that the evidence is at least in equipoise as to whether the Veteran has current gastrointestinal symptoms that result in at least some degree of functional impairment of earning capacity, and accordingly, are considered a disability under Saunders. Thus, a current gastrointestinal disability is established. The Board acknowledges that, when asked whether the Veteran's claimed gastrointestinal disability was: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; (3) a diagnosable chronic multi-symptom illness with a partially explained etiology; or (4) a disease with a clear and specific etiology, the May 2021 VA examiner opined that the "four standard Gulf War disability patterns are not applicable for this case. There is no evidence of persistent/recurrent symptoms or concern of a diagnosis for the claimed condition of Stomach." However, as discussed above, the Board has determined that the Veteran has a current disability under Saunders. Notably, even without satisfying the criteria for presumptive service connection under 38 C.F.R. § 3.317, the Veteran may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current gastrointestinal disability had its onset during his active service and has continued ever since. In a March 2007 Post-Deployment Health Reassessment regarding the Veteran's deployment to Iraq from January 2004 to December 2004, the Veteran reported that his health was somewhat worse compared to before he deployed and that he had current symptoms of diarrhea, vomiting, or frequent indigestion that he felt was related to his deployment. In a March 2008 treatment record, the Veteran endorsed bloating and watery diarrhea, and in a January 2009 Periodic Health Assessment, the Veteran reported a history of recurrent diarrhea since his deployment to Iraq. In an October 2013 VA Persian Gulf Examination report, the Veteran reported symptoms of constipation, diarrhea, indigestion, and stomach pains since 2005. The Veteran reported that his gastrointestinal symptoms onset in 2004 during VA examinations dated September 2019 and May 2021, in a June 2015 Statement in Support of Claim, and during the November 2018 Board hearing. The Veteran is competent to report these observable gastrointestinal symptoms and the Board has no reason to doubt his credibility. Therefore, the Board affords great probative value to the Veteran's lay statements that his gastrointestinal symptoms onset during his active service in 2004 and have continued ever since. While the May 2021 VA examiner provided a negative nexus opinion as to direct service connection, the Board notes that this opinion was based entirely on the examiner's finding that there "is no evidence of persistent/recurrent symptoms or concern of a diagnosis for the claimed condition of Stomach." The Board finds this opinion to be inadequate given the prior determination that the Veteran has a current disability per Saunders. For these reasons, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for a gastrointestinal disability is warranted. The appeal is therefore granted. 1. Entitlement to service connection for dizziness The Veteran also asserts he is entitled to service connection for dizziness, to include as secondary to his service-connected tinnitus. As an initial matter, and after resolution of all reasonable doubt in his favor, the Board finds that the Veteran has a current disability manifested by dizziness. As discussed previously, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit Court held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment of earning capacity. In Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020), the Court confirmed that a disability, as defined in Saunders, "applies broadly to include more than just pain." In the May 2021 VA examination report, the Veteran endorsed intermittent dizziness and the VA examiner determined that the Veteran experiences episodes of vertigo 1 to 4 times per month lasting less than 1 hour per episode. While the examiner did not diagnose any ear or peripheral vestibular condition, the examiner opined that the Veteran's condition impacted his ability to work, noting that when the Veteran gets dizzy, he cannot sit and work at his computer due to the pain from the light. Furthermore, during the November 2018 Board hearing, the Veteran testified that he has symptoms of dizziness and lightheadedness that require him to stay seated for a while before standing up. At the January 2016 VA examination, the Veteran reported episodic dizziness that occurs on average twice daily with occasional nausea. With resolution of all reasonable doubt in the Veteran's favor, this evidence demonstrates that the Veteran's dizziness symptoms result in at least some degree of functional impairment of earning capacity, and accordingly, are considered a disability under Saunders. Thus, a current disability is established. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's dizziness is etiologically related to his service-connected tinnitus. In the rationale for the medical opinion as to secondary aggravation, the May 2021 VA examiner wrote, "People who experience ringing in their ears often also report having symptoms of dizziness. However, dizzy spells are most commonly caused by medications, migraines or alcohol. However, sometimes an undiagnosed issue with your inner ear can cause dizziness. Dizziness/vertigo or tinnitus can be symptoms of other diseases, therefore it is [at] least as likely as not that the veteran[']s dizziness is due to tinnitus." While this medical opinion is not in the expected place, the Board finds it to be otherwise adequate, as the VA examiner considered the etiology of the Veteran's dizziness symptoms despite his lack of a formal diagnosis, applied the correct evidentiary standard, and supported the opinion with an adequate rationale. The Board acknowledges that the May 2021 also provided a negative nexus opinion as to secondary causation, reasoning, "Unable to confirm a current chronic diagnosis with current available records and/or today's exam. Therefore[,] no nexus or plausible secondary relationship is established." The Board finds this opinion to be inadequate given its prior determination that the Veteran has a current disability per Saunders. For these reasons, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for dizziness is warranted on a secondary basis. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.