Citation Nr: 21066313 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-44 140 DATE: October 29, 2021 ORDER Entitlement to service connection for a gastrointestinal disability, to include as a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI), is denied. FINDING OF FACT The Veteran is not shown by the probative and competent evidence of record to have a gastrointestinal disability as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness, or directly related to service in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from September 1990 to May 1991. The Veteran had additional Reserve service. In March 2019, the Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing. A copy of the hearing transcript has been associated with the claims file. In July 2019, the Board remanded this matter for further development. The matter was again remanded in May 2021 for a new VA medical opinion. As the opinion has been provided, there has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a gastrointestinal disability, to include as a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) The Veteran contends that he suffers from a gastrointestinal (GI) disability related to his service in Southwest Asia. Legal Criteria 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. 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, 2026. 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). Lay Evidence The Veteran's military personnel records demonstrate that he had service in the Southwest Asia Theater of operations from November 1990 to April 1991 during the Persian Gulf War. In the Veteran's October 2011 application for compensation, he stated that his GI disability was caused by his hazardous chemical exposure and the pre-treatment medication he was prescribed while serving in the Persian Gulf War. In a March 2012 Statement in Support of Claim, the Veteran also stated that his unit would pass smoking vehicles and prisoner of war camps, and travel during sandstorms. At the March 2019 Travel Board hearing, the Veteran contended that his gastrointestinal disability was caused by the pre-treatment medications he was prescribed in preparation for service in the Persian Gulf War. The Veteran added that while serving in the Persian Gulf War, missiles were launched in his direction, triggering nuclear, biological, and chemical alarms. An April 1987 report of medical history from the Veteran's service treatment records indicates that the Veteran had no chest pain, indigestion, or intestinal problems. The Veteran's April 1991 separation examination had the same findings. In April 1991, the Veteran received a Southwest Asia Demobilization Evaluation. This evaluation indicates that the Veteran took chemical agent prophylaxis as part of his service in the Persian Gulf War. In October 2005, the Veteran received an esophagogastroduodenoscopy (EGD). The examining clinician provided a postoperative diagnosis of duodenitis and small hiatal hernia. Following an August 2007 sleep center consultation, the examining clinician noted that the Veteran's reflux was impacting his sleep. In a June 2009 chest pain assessment, the examining clinician noted that the Veteran has had a history of dyspepsia. During this assessment, the Veteran complained of chest tightness lasting several weeks. In an August 2009 private medical record, the examining clinician provided the Veteran with an assessment of gastroesophageal reflux disease (GERD). In an April 2012 progress note, the examining clinician noted that the Veteran was complaining of belching and indigestion, as well as pressure in his chest. In April 2012, the Veteran also met with a digestive health specialist. During this examination, the Veteran stated that he has been complaining of chest pain for years, and that his chest pain is aggravated by food intake and lying down. The examining clinician provided the Veteran with an assessment of chest pain, dysphagia, dyspepsia, and abdominal bloating. In June 2012, however, the Veteran received an esophagram, and the postoperative diagnosis was negative for dyspepsia. In a September 2012 consultation, the Veteran stated that he has chronic belching and that this has led to a significant reduction in his food consumption. Pursuant to the July 2019 remand, the Veteran was provided with a VA Gulf War Illness examination and a VA esophageal conditions examination in February 2020. The examiner concluded that the correct diagnosis for the Veteran's esophageal condition was gastroesophageal reflux disease (GERD). The examiner found that this condition was a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. Pursuant to the May 2021 remand, a VA medical examiner reviewed the Veteran's medical history in May 2021. The VA examiner reviewed the medical records contained in the Veteran's e-folder and concluded that the Veteran's GI condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained that the Veteran's GI conditions were diverticulitis, hiatal hernia, and GERD. These are conditions that have known etiologies. The diverticulitis is the inflammation of diverticulosis which are out pockets of the GI tract. The hiatal hernia and GERD are due to ineffective lower esophageal sphincter. These conditions were not noted to have occurred during his time in service. As for the Veteran's GERD, the Veteran was diagnosed with this condition on an upper GI series (UGI) in 1996, as noted on encounter in November 2000, several years after his time in service. The examiner was unable to find records that showed symptoms or diagnosis of this condition while in service. The examiner concluded that a nexus between a GI disability and service has not been established. In August 2021, the VA examiner provided an addendum opinion. The examiner found that the Veteran's GERD was not related to service in Southwest Asia, including environmental hazards such as smoke and sand, or medication taken in preparation for service in the Persian Gulf War. The examiner noted that GERD is caused by an ineffective lower esophageal sphincter. This condition is not related to smoke or sand exposure. Medications taken in preparation for service in the Persian Gulf War would include anti-malaria medicines that does not cause GERD. Analysis The evidence of record shows that the Veteran has a current GI condition, and that the Veteran had service in Southwest Asia, and took medication taken in preparation for service in Southwest Asia. However, the evidence does not establish a nexus between a current GI disability and the Veteran's service in Southwest Asia. The Board notes that GERD is not eligible for presumptive service connection as a medically unexplained chronic multi symptom illness under 38 C.F.R. § 3.317. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Nor is the Veteran eligible for service connection under 38 C.F.R. § 3.317 for an undiagnosed illness, as he has a distinct diagnosis of GERD. The Board acknowledges the lay statements made by the Veteran indicating that his GI disability is 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). To the extent that the Veteran contends that he experienced GI symptoms continuously since discharge from service, these statements are not credible, as they are inconsistent with the medical evidence of record which shows the condition was first diagnosed in 1996, multiple years after service. The VA examiner who provided the May 2021 and August 2021 medical opinions reviewed the record and provided opinions based on the specific facts of this case as presented in the record. The examiner reviewed the record and provided appropriate rationales that are factually accurate, fully articulated, and soundly reasoned. 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 VA examiner's opinions as the most probative evidence as to whether it is less likely than not that the Veteran's GI disability is related to service. In sum, the competent evidence of record weighs against the Veteran's assertion that his GI disability was incurred in service, to include as caused by exposure to environmental hazards, pre-treatment medication, or is a product of an undiagnosed illness or medically unexplained multi-symptom illness incurred during service in Southwest Asia. The VA examiners found no diagnosis of a GI condition until 1996. The examiners found no medical evidence to support that the Veteran's Gi disability was incurred in service or is 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 claim 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). JENNIFER HWA 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.