Citation Nr: 21066021
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 17-54 884
DATE: October 28, 2021

ORDER

Entitlement to service connection for irritable bowel syndrome (IBS), to include as due to herbicide exposure, is denied.

FINDING OF FACT

The Veteran's IBS was not shown in service and is not causally or etiologically related to service, to include as due to herbicide exposure. 

CONCLUSION OF LAW

The criteria for service connection for the Veteran's IBS have not been met. 38 U.S.C. §§ 1110, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the U.S. Army on active duty from September 1965 to March 1969. His awards include the Combat Infantryman Badge and the Vietnam Campaign Medal, among others. 

This claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Board denied the Veteran's claim in a February 2019 decision. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Memorandum decision, the Court vacated the February 2019 Board decision and returned the case to the Board for action consistent with its decision.

In October 2020, the Board remanded the claim so that a VA examination could be conducted which fully assessed this claim. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was afforded a VA examination in August 2021, which the Board finds adequate for adjudication purposes. 

Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. 

Service Connection

Generally, to establish service connection for a present disability, "the veteran must show (1) the existence of a present 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." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are associated with herbicide exposure does not include IBS. 38 C.F.R. § 3.309(e)

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Entitlement to service connection for IBS

The Veteran asserts that his irritable bowel syndrome (IBS) is related to his active service. Specifically, the Veteran contends that his IBS is related to his exposure to herbicides while deployed in the Republic of Vietnam.

In this case, after reviewing all evidence currently of record, the Board determines that service connection for IBS is not warranted because the evidence does not show that the Veteran's IBS is related to or had its onset during his service, nor is it related to his toxic herbicide exposure. 

First, while the Veteran served in the Republic of Vietnam and is therefore presumed to have been exposed to Agent Orange in service, IBS is not a disorder that may be presumed related to toxic herbicide agent exposure. Accordingly, Veteran's IBS symptoms may not be attributed to his acknowledged herbicide agent exposure on a presumptive basis.

Next, although his primary assertions have been addressed above, the Veteran is not precluded from establishing service connection for his IBS with proof of actual direct causation as due to active-duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis.

Specifically, the service treatment records do not reflect complaints of, treatment for, or a diagnosis of a gastrointestinal disorder, to include symptoms of IBS, in service. Significantly, the Veteran reported no stomach or gastrointestinal issues during his February 1969 separation examination. As such, the medical evidence does not support an in-service incurrence of IBS or related symptoms.

In fact, the first indication of IBS is not until an October 2016 VA treatment note, in which the Veteran reported abdominal pain, flatulence and stomach grumbling. Additionally, a July 2017 VA treatment note shows a diagnosis of IBS, which is more than 36 years after he left active duty. Notably, the Veteran has not asserted that his symptoms began in or continued since service. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements.

Finally, there is no medical nexus between the Veteran's active-duty service and current complaints. The Veteran was afforded a VA examination in August 2021. The examiner opined against service connection, stating that his IBS was less likely than not caused or aggravated by his service, to include as due to herbicide exposure. The physician explained that it was unlikely that IBS was related to service without evidence of progressive complaints since his separation of service in 1969.  Further, the examiner stated that there is no medical literature showing a link between herbicide exposure and IBS. This evidence weighs against the claim and there are no medical opinions to the contrary.

The Board has considered the Veteran's assertions relating his IBS to active service. However, the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In this case, however, the Veteran is not competent to testify regarding the etiology of his IBS. See Jandreau, 492 F.3d 1372 at 1377, n.4. The Veteran is competent to report his symptoms and their onset. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he has not been shown to possess the specialized knowledge and expertise necessary to render an opinion on a complex medical question such as the likely cause or etiology of IBS. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Because the Veteran is a lay witness, his opinions on medical matters such as the likely etiology of his diagnosed IBS is not considered competent and is therefore not probative in showing that the disability is related to his active service. Accordingly, service connection for IBS is denied. 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.  

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald