Citation Nr: 21063686 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-39 212 DATE: October 15, 2021 ORDER Entitlement to service connection for ulcerative colitis is denied. Entitlement to service connection for myocardial infarction is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's ulcerative colitis manifested in service or is otherwise etiologically related to service, to include as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. 2. The preponderance of the evidence is against a finding that the Veteran's myocardial infarction manifested in service or is otherwise etiologically related to service, to include as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. CONCLUSIONS OF LAW 1. The criteria for service connection for ulcerative colitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for myocardial infarction are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from October 1988 to November 1989, from January 1991 to November 1991, from October 1994 to March 1995 and from April 1995 to August 1995, with service in Southwest Asia. In April 2019, the Board of Veterans' Appeals (Board) remanded the Veteran's claims of service connection for ulcerative colitis, myocardial infarction, and insomnia. Regarding the claim of service connection for insomnia, a May 2020 rating decision granted service connection for posttraumatic stress disorder, claimed as insomnia. As this is a full grant of the benefit sought, this matter is no longer before the Board. Regarding the claims of service connection for ulcerative colitis and myocardial infarction, the April 2020 remand instructed the Agency of Original Jurisdiction (AOJ) to provide the Veteran with a VA Gulf War Examination to determine if these conditions are related to service in Southwest Asia. The Board notes that the Veteran was provided with a VA heart condition examination, and a VA intestinal condition examination. Although these examinations are not specifically Gulf War Examinations, they provided all necessary medical findings and opinions necessary for the Board to adjudicate these claims. Therefore, these matters are appropriately back before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance, rather than absolute compliance, with remand orders). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). 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. That is, if not manifest in service, the claimed chronic disability must have been manifest to a degree of 10 percent or more by December 31, 2016. 38 C.F.R. § 3.317(a)(1)(i). See also 77 Fed. Reg. 63,225- 63,227 (October 16, 2012) (final rule). Effective March 1, 2002 and again October 7, 2010, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C. §§ 1117, 1118. Per these changes, the term 'qualifying chronic disability' was revised to mean a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). If probative evidence exists that the Veteran's disability pattern is either (1) an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, including but not limited to, chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases), then service connection must be granted for a Gulf War illness. See 38 C.F.R. § 3.317(a)(2)(i) and (ii). For purposes of this presumption, 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 has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Regulations clarify that there must be "objective indications of a qualifying chronic disability," which include 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)(1) and (3). A disability is considered "chronic" if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period. 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)(4). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). That is, under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, the symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of "direct service connection," VA cannot impose a medical nexus requirement. Further, lay persons are competent to report objective signs of illness such as joint pain or fatigue. Id. at 9-10. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (1998), 63 Fed. Reg. 56703 (1998). 1. Entitlement to service connection for ulcerative colitis 2. Entitlement to service connection for myocardial infarction The Veteran asserts that his ulcerative colitis and myocardial infarction are related to his service in the Persian Gulf. His DD-214 confirms his service in the Southwest Asia theatre of operations from January 1991 until November 1991. The Veteran's service treatment records (STRs) do not note any complaints or findings of a heart condition during service. In April 1989, the Veteran reported vomiting and upset stomach, and was given a "rule-out" diagnosis of influenza. There are not other complaints or findings of an intestinal condition during service. The Veteran was afforded a Gulf War General Medical Examination as well as an intestinal condition examination in July 2017. The examiner opined that ulcerative colitis is not an undiagnosed illness or a medically unexplained chronic multi-symptom illness. In a July 2017 addendum opinion, the VA examiner concluded that the Veteran's gastrointestinal problems was less likely than not incurred in or caused by service because he had a specific diagnosis of ulcerative colitis, and as such, he did not have an undiagnosed illness or a multi-symptom illness. In April 2019, the Board remanded these matters to afford the Veteran new VA Gulf War General Medical Examinations to determine whether his claimed conditions are attributable to an undiagnosed illness ora medically unexplained chronic multi-symptom illness, or otherwise related to his period of service. Pursuant to the Board remand, the Veteran was provided with a VA heart condition examination in November 2019. The VA medical examiner reviewed the Veteran's medical history contained in his e-folder and conducted an in-person examination of the Veteran. The examiner noted diagnoses of myocardial infarction and coronary artery disease. The VA examiner explained that the Veteran has a disability pattern related to myocardial infarction. The VA examiner further explained that the Veteran's disability pattern is a disease with a clear and specific etiology and diagnosis. According to medical literature, a heart attack occurs when the flow of blood to the heart is blocked. The blockage is most often a buildup of fat, cholesterol and other substances, which form a plaque in the arteries that feed the heart (coronary arteries). The plaque eventually breaks away and forms a clot. The interrupted blood flow can damage or destroy part of the heart muscle. A heart attack occurs when one or more of the coronary arteries become blocked. Over time, a coronary artery can narrow from the buildup of various substances, including cholesterol (atherosclerosis). This condition, known as coronary artery disease, causes most heart attacks. Therefore, the claimed myocardial infarction is less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Also pursuant to the Board remand, the Veteran was provided with a VA intestinal condition examination in November 2019. The VA medical examiner reviewed the Veteran's medical history contained in his e-folder and conducted an in-person examination of the Veteran. The examiner noted a diagnosis of ulcerative colitis. The VA examiner explained that the Veteran has a disability pattern related to ulcerative colitis. The VA examiner further explained that the Veteran's disability pattern is a diagnosable chronic multi-symptom illness with a partially explained etiology. According to medical literature, ulcerative colitis is an inflammatory bowel disease (IBD) that causes long-lasting inflammation and ulcers (sores) in the digestive tract. Ulcerative colitis affects the innermost lining of the large intestine (colon) and rectum. Symptoms usually develop over time, rather than suddenly. The exact cause of ulcerative colitis remains unknown. Previously, diet and stress were suspected, but now doctors know that these factors may aggravate but do not cause ulcerative colitis. One possible cause is an immune system malfunction. When the immune system tries to fight off an invading virus or bacterium, an abnormal immune response causes the immune system to attack the cells in the digestive tract as well. Heredity also seems to play a role in that ulcerative colitis is more common in people who have family members with the disease. However, most people with ulcerative colitis do not have this family history. Therefore, the claimed ulcerative colitis is less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Board acknowledges the lay statements made by the Veteran indicating that his ulcerative colitis and myocardial infarction are related to service. The Veteran is competent to provide testimony concerning factual matters of which they have first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examiner who conducted the November 2019 VA heart condition and intestinal condition examinations reviewed the record and examined the Veteran. The examiners' opinions were based on the specific facts of this case as presented in the record and by the Veteran at an in-person examination. The examiner reviewed the record and provided appropriate rationales are factually accurate, fully articulated, and soundly reasoned, with citations to medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the November 2019 VA examiner's opinions as the most probative evidence as whether it is less likely than not that the Veteran's ulcerative colitis and myocardial infarction related to service, to include as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. In sum, the competent evidence of record weighs against the Veteran's assertion that his ulcerative colitis and myocardial infarction are related to in-service or are a product of an undiagnosed illness or medically unexplained multi-symptom illness incurred during service in Southwest Asia. The medical evidence of record does not note a confirmed diagnosis of myocardial infarction until 2015, and a confirmed diagnosis of ulcerative colitis until 2005. The VA examiner found that each of these diseases had a clear and specific etiology and diagnosis. The examiner found no medical evidence to support that the Veteran's ulcerative colitis and myocardial infarction were incurred in service or are related to a Southwest Asia illness. Although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED