Citation Nr: 21063952 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-50 419 DATE: October 18, 2021 ORDER Entitlement to service connection for irritable bowel syndrome is granted. Entitlement to service connection for pylephlebitis (claimed as deep vein thrombosis) is granted. REMANDED Entitlement to service connection for sleep disturbances (diagnosed as other specified depressive disorder and possible OSA) is remanded. FINDINGS OF FACT 1. The Veteran had active service in Southwest Asia theatre of operations during the Persian Gulf War. 2. The Veteran's diagnosed irritable bowel syndrome (IBS) manifested to a degree of at least 10 percent and chronically persisted for at least six months after a period of active-duty service in Southwest Asia during the Persian Gulf War. 3. The preponderance of the evidence shows the Veteran's diagnosed pylephlebitis is due to exposure to environmental hazards during service. CONCLUSIONS OF LAW 1. The criteria for service connection for irritable bowel syndrome (IBS) 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 pylephlebitis (claimed as deep vein thrombosis) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1988 to September 1992, to include service in Saudi Arabia. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the Veteran was granted service connection for hypertension in a November 2020 rating decision. Because this grant represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran testified before the undersigned Veterans Law Judge during a June 2021 videoconference hearing, and a transcript of this hearing is associated with the claims file. Service Connection Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). VA will pay compensation to a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that manifests either during active service in the Southwest Asia theatre of operations or manifests to a degree of 10 percent or more no later than December 31, 2026. 38 C.F.R. § 3.317(a). A "qualifying chronic disability" is defined as: (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; or (3) functional gastrointestinal disorder (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a). Objective indications of a chronic disability 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. 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. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a)(2-5). 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) headaches; (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). 1. Entitlement to service connection for irritable bowel syndrome (IBS) is granted. The Veteran contends that his functional gastrointestinal issues are due to his service in Southwest Asia during the Persian Gulf War. Irritable bowel syndrome is rated as irritable colon syndrome. A zero percent disability rating is warranted for mild symptomatology with disturbances of bowel function and occasional episodes of abdominal cramping. A 10 percent disability rating is warranted for moderate symptomatology with frequent episodes of bowel disturbance and abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Compensation shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The Veteran's service personnel records indicate he served in Southwest Asia during the Persian Gulf War, and thus he is eligible for consideration of presumptive service connection under 38 C.F.R. § 3.317(a). The Veteran's service treatment records, to include entrance and separation examinations, are silent with respect to any gastrointestinal-related symptoms or issues. The Veteran was afforded a Gulf War General Medical Examination and a Stomach and Duodenal VA examination in September 2015. In the Gulf War examination, the examiner noted that the Veteran reported experiencing unexplained nausea and other gastrointestinal issues. The examiner noted that they went into more detail in a separate Stomach and Duodenal examination. In the Stomach and Duodenal examination, the Veteran reported that he used to have daily nausea between 2013 and 2014, although it had gotten better over the past several months to occurring once every two to three weeks. He explained that his nausea always occurred in the morning and was not associated with any oral intake. The Veteran also reported experiencing heartburn symptoms that lasted a few minutes approximately every three months. He further stated he never tried any over the counter medications for his nausea or heartburn. Additionally, the Veteran reported having one to two brown, formed bowel movements a day and denied any diarrhea, mucus, blood, or melena. He stated he never saw a doctor for his nausea, nor has he ever been on medications or had an endoscopic evaluation for his nausea. He also did not experience any weight loss. The examiner noted the Veteran's abdominal exam was completely benign, showing a soft, nontender, nondistended stomach with low-pitched bowel sounds in all four quadrants and no rebounding or guarding. As such, the examiner opined that there was no objective evidence to support a diagnosis of unexplained nausea or functional gastrointestinal disorder. While the Veteran reported having had daily nausea for approximately two years, the medical record did not substantiate these claims. The Veteran states he only receives medical treatment through the VA, and his VA treatment records do not note complaints of nausea during his numerous visits between January 2011 and the date of the exam. The examiner explained that they searched for notations of nausea from January 2011 in case the Veteran was off on his estimate that his daily nausea started sometime in 2012. However, aside from the examination, the only time the examiner found a complaint of nausea in the record was related to a blood draw during an appointment which the examiner determined to be an isolated incident. The Veteran also submitted a September 2021 private opinion by T.J., a nurse practitioner. In this opinion, T.J. noted the Veteran reported serving in Southwest Asia during the Persian Gulf War, where he repaired battalion vehicles. He also reported having guard duty and burning waste, including human feces, as part of his normal work duties. Additionally, the Veteran explained that there were many oil well fires near his locations, and he also experienced wet oil rain. T.J. explained that the Veteran's duties, and the environment in Southwest Asia, would have exposed him to complex inhalational mixtures such as desert dust, fumes from burning trash and feces, combat dust, vehicular diesel exhaust, smoke from oil well fires, and contact exposure from the wet oil rain. Further, the Veteran reported being around burning waste for hours at a time when he was responsible for disposing of waste, increasing his exposure to these toxins. T.J. noted the Veteran had no reports of gastrointestinal symptoms or diagnoses prior to his service. He did, however, report having persistent gastrointestinal distress beginning in 1990 while he was in Southwest Asia, after he was exposed to the oil well fires and wet oil rain. His symptoms would appear after eating both MREs and hot meals and consisted of persistent abdominal pain, cramping, and rumbling noises, both with and without nausea and vomiting. The frequency and severity of his symptoms became progressively worse over the years, resulting in daily abdominal pain regardless of dietary intake. He also experiences flares in his symptoms, with sudden onset of loose stools, intermittent bloating, and rumbling approximately one to two times per week. He also reports experiencing episodic nausea, as well as constant episodes of bowel disturbance with abdominal pain. After reviewing the Veteran's history and reported symptoms, T.J. opined that the Veteran has a functional bowel disorder, most likely irritable bowel syndrome (IBS), which is a functional gastrointestinal disorder. T.J. notes that IBS is characterized by abdominal pain, altered bowel habits, cramping, bloating, gas, and diarrhea, constipation, or both. IBS symptoms are typically chronic, and the Veteran has described experiencing a variety of these symptoms since his time in Southwest Asia. Therefore, T.J. opined that the Veteran's IBS was at least as likely as not caused by his exposure to multiple types of toxins while serving in Southwest Asia. During the June 2021 hearing, the Veteran testified that he had gastrointestinal issues while deployed to Southwest Asia. He would sometimes vomit after eating, enough that other servicemembers noticed, but he did not talk about it or seek treatment. He often thought it was just down to something he ate. He also described experiencing abdominal cramping while deployed, although again he did not go to sick call because he saw no point in reporting cramps. Additionally, he described experiencing unexplained diarrhea, which he still experiences. Furthermore, he described experiencing about a month of intestinal pain due to a blockage, and he ended up being hospitalized. However, he could not recall the medical details of what occurred. The Veteran also explained that he did not seek medical treatment prior to his hospitalization because he had no health insurance and did not realize he qualified for healthcare through the VA. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After reviewing the evidence of record, the Board finds that the evidence is in relative equipoise regarding whether the Veteran's functional gastrointestinal disorder, which has been diagnosed as IBS, is related to his service. Although the September 2015 examiner did not note any reports of gastrointestinal issues, to include nausea, prior to 2012, the Veteran has provided competent testimony with respect to the symptoms he experienced during and after service. As a layperson, the Veteran is competent to report symptoms he experienced since service, even though he is not competent to provide a diagnosis or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 4.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Board finds the Veteran's description of his symptoms to be competent and credible. Additionally, while the September 2015 examiner noted the Veteran did not report feeling nauseous during any of his many appointments prior to his examination, this may in part be due to the Veteran reporting only how he is feeling exactly at that moment during his examination, or he may have written his symptoms off as related to what he ate or found them to be of little importance, an attitude alluded to in his hearing testimony. While the Veteran provided more in-depth statements concerning his symptoms after his September 2015 examination, these statements must still be taken into consideration when determining the etiology of the Veteran's gastrointestinal disorder. As such, the Board finds the September 2015 examination to be inadequate. Furthermore, the Board finds T.J.'s medical opinion to be highly probative. In this opinion, T.J. addressed the Veteran's lay statements concerning his history of gastrointestinal issues, including his description of in-service nausea, vomiting, cramping, and diarrhea. T.J. then provided a diagnosis of IBS based on the Veteran's reported history as well as his current symptoms. In addition to having established service in Southwest Asia during the Persian Gulf War, the Veteran has a present diagnosis of IBS. Thus, the Veteran has a present diagnosis of a condition eligible for presumptive service connection under 38 C.F.R. § 3.317(a). The Board finds that the Veteran's IBS has manifested to a degree of 10 percent or more since discharge from active duty. In the September 2021 private medical opinion, T.J. found that the Veteran's IBS manifested as daily abdominal cramping, loose bowel movements, intermittent bloating, and rumbling one to two times per week. The Veteran also reported episodic nausea throughout the day, along with vomiting, and reported currently experiencing constant episodes of bowel disturbances with abdominal distress. The Board finds that the Veteran's IBS symptoms approximate moderate symptomatology with frequent episodes of bowel disturbance and abdominal distress. Therefore, the Veteran's IBS has manifested to a degree of at least ten percent. 38 C.F.R. § 4.114, Diagnostic Code 7319. Accordingly, there is a presumption of a nexus between the Veteran's current IBS and his Gulf War service. After resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's IBS is presumptively connected to his service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is granted. 2. Entitlement to service connection for pylephlebitis (claimed as deep vein thrombosis) is granted. The Veteran also contends that his pylephlebitis is due to his exposure to environmental hazards, to include burning waste and oil well fires, when he was in Southwest Asia during the Persian Gulf War. The Veteran was afforded a VA Gulf War General Medical examination and a VA Infectious Diseases examination in September 2015. In the Gulf War examination, the examiner noted the Veteran had a previous diagnosis of pylephlebitis, also known as septic pylephlebitis, and that a separate infectious disease examination would be conducted. In the September 2015 Infectious Diseases examination, the examiner noted the Veteran had a diagnosis of liver and spleen abscesses in May 2011. Additionally, he had extensive portal vein thrombosis that was thought to be pylephlebitis at the same time as his liver and spleen abscesses. The treating physicians noted the Veteran had evidence of systemic inflammatory response syndrome. After additional testing, the treating physicians concluded abscesses were due to an infectious disease, with the likely source being diverticulitis. CT scans showed that the Veteran had some stranding abutting a region of diverticulosis, consistent with diverticulitis. All conditions were noted as having resolved without any residuals. The examiner opined that the Veteran's liver and spleen abscesses and pylephlebitis were less likely than not related to his service, including his time in Southwest Asia, because these issues were more likely an infection related to underlying diverticulitis and not to exposure to environmental hazards. Additionally, the examiner opined that the Veteran's diverticulitis and related symptoms likely caused his liver and spleen abscesses and pylephlebitis due to having untreated diverticulitis for three weeks. The Veteran also submitted a September 2021 private opinion from T.J., a nurse practitioner. In this opinion, T.J. noted the Veteran was admitted to the hospital in 2011 for abdominal pain and persistent, severe diarrhea. Testing revealed multiple abscesses in his liver and spleen, as well as a portal vein thrombosis and the development of pylephlebitis. Additionally, after undergoing thorough workups and testing during his hospital stay, there was no clear etiology found for his condition, although his treating physicians believed it might be due to pre-existing underlying acute and chronic inflammation and infection. His conditions eventually resolved completely. T.J. explains that pylephlebitis is a complication of an intra-abdominal or pelvic infection of any etiology, with diverticulitis being one of the most common causes, although other causes have been associated with the condition, including inflammatory bowel disease, gastroenteritis, peptic ulcer disease, and liver abscess. Additionally, T.J. explained that multiple organisms have been identified in the presence of pylephlebitis, including normal bowel flora. T.J. further explained that in the Veteran's case, there was no clear etiology found for his pylephlebitis. Therefore, it could have been due to persistent exposure to bowel flora like E. coli during his time in the Persian Gulf that caused long-term inflammation at the cellular level. Additionally, E. coli is possibly associated with long-term effects on the immune and immune regulatory systems. Thus, T.J. opined that these factors could potentially explain the inflammation contributing to the Veteran's acute infectious episode and found it to be at least as likely as not that the Veteran's pylephlebitis was due to exposure to environmental hazards during his time in Southwest Asia. The Board finds that the evidence of record is in relative equipoise regarding whether the Veteran's pylephlebitis is due to or otherwise related to his service. When weighing the September 2015 VA examination and the September 2021 private opinion, the Board finds them to have relatively equal probative weight. In the September 2021 opinion, T.J. provides a well-reasoned rationale for why the Veteran's exposure to environmental hazards, primarily burning feces, would at least as likely as not be the cause of his pylephlebitis. Specifically, T.J. explains how normal flora in feces, such as E. coli, have been known to be present in cases of pylephlebitis. Additionally, exposure to E. coli has been shown to cause long-term inflammation at the cellular level and has been found to have endotoxin activity that is possibly associated with long-term effects on the immune and immune regulation systems. T.J. opines that this is another explanation for the Veteran's inflamed bowels and his pylephlebitis, and therefore the Veteran's pylephlebitis is at least as likely as not due to his exposure to burning feces during service. explanation. Therefore, the Board finds T.J.'s rationale to be of equal probative weight to the September 2015 examiner's opinion. Accordingly, the Board finds that the evidence is in relative equipoise regarding service connection for pylephlebitis, and therefore resolves the issue in favor of the Veteran. Thus, service connection for pylephlebitis is warranted. The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for sleep disturbances (diagnosed as other specified depressive disorder and possible OSA) is remanded. The Veteran contends that his sleep disturbances are related to his time in Southwest Asia during the Persian Gulf War. During his June 2021 hearing testimony, the Veteran described how he had difficulty sleeping when he returned from his deployment in Southwest Asia, including difficulty sleeping in a bed, instead only being able to sleep on the sofa or the floor. He continues to have difficulty sleeping, and while he can now sleep in a bed, he explains that he has to have noise to be able to sleep. Additionally, the Veteran described how he felt he could not breathe deeply, saying he does not feel like he can fill his lungs when breathing. He also states that even though he has been evaluated for sleep apnea and prescribed concentrated oxygen to help with his sleep, he does not feel like it is helping. The Veteran was afforded a VA Mental Health examination in August 2015, during which the examiner opined that the Veteran's sleep disturbances were "subsumed under the depressive disorder" that onset in 2004, which was after he separated from service. Because of this, the examiner opined that the Veteran's sleep disturbances were not due to exposure to environmental hazards in Southwest Asia. However, the examiner also noted the Veteran reported not being able to sleep in a bed when he returned from his deployment, preferring to sleep on the floor. He also reported being diagnosed with obstructive sleep apnea (OSA). While examiner addressed the Veteran's complaints of sleep disturbances from 2004 forward, relating them to his depressive mood disorder, the examiner failed to address the Veteran's report of sleep issues upon his return from Southwest Asia. Additionally, the examiner failed to address whether the Veteran's OSA was related to his service. As such, the Board finds this examination to be inadequate. The Veteran also submitted a September 2021 private opinion from nurse practitioner T.J., who noted the Veteran reported experiencing sleep disturbances after returning from Southwest Asia, and he was also diagnosed with OSA. The Veteran reported having difficulty sleeping in a bed and sleeping through the night, having bizarre dreams, and feeling as if he was trapped and unable to control his body. These symptoms persist to the present and include difficulty falling asleep, constant snoring, bizarre dreams, frequent periods of waking in the night, difficulty staying asleep, constant feeling of unrest, and persistent daytime hypersomnolence. Additionally, the Veteran reported feeling hypervigilant tendencies and recurrent, vivid dreams. With respect to the Veteran's diagnosis of OSA, T.J. stated that OSA has been shown to affect more Gulf War veterans than veterans of other eras. Sleep disturbances and disorders in general also appear to be more common amongst Gulf War veterans. T.J. noted that the Veteran's VA treatment records show a history of obesity, although he was not currently obese, and stated there was no real indication of what caused the Veteran's OSA. As such, T.J. opined that the Veteran's OSA was related to his time in Southwest Asia, stating it should qualify for presumptive service connection. However, although T.J. provided a positive opinion for the Veteran's OSA being related to his time in Southwest Asia, this opinion hinges primarily on the fact that many veterans of the Gulf War have reported OSA. The Board finds this rationale to be conclusory, and therefore insufficient for service connection. Additionally, T.J. opined that the Veteran's OSA is of an unexplained origin because while he has previously been obese, and obesity is a risk factor for OSA, he is not currently obese, and thus the cause of his OSA cannot be explained. This rationale is insufficient because the Veteran was noted as being obese at the time he was diagnosed with sleep apnea. Thus, the Board finds this opinion to be inadequate. Accordingly, because there is no adequate opinion of record addressing the Veteran's sleep disturbances, to include OSA, the Board finds that a new examination is necessary, and thus a remand is warranted. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a qualified examiner to determine the nature and etiology of the Veteran's sleep disturbances, to include his OSA. The examiner must provide a clear diagnosis for each sleep disorder found to be present. For each such disability, the examiner must provide a thorough opinion as to each of the following: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep disorder began in or is otherwise related to his service, to include exposure to environmental hazards during his deployment to Southwest Asia. (b.) Whether it is at least as likely as not that the Veteran's OSA, or any other sleep disorder found to be present, qualifies as a "medically unexplained chronic multi-symptom illness" (MUCMI), meaning either the etiology or the pathophysiology of the illness is inconclusive and is therefore eligible for the Persian Gulf War presumption for service connection under the relevant VA regulation. (c.) If the examiner determines the Veteran's sleep disorder is related to his depressive mood disorder or other psychiatric disorder, the examiner must provide a thoroughly reasoned opinion as to whether any diagnosed psychiatric disorders are due to or otherwise related to his service. A complete rationale must be provided for all opinions given. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.