Citation Nr: A21016355 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 200817-89336 DATE: October 5, 2021 ORDER Service connection for an esophageal disorder, to include gastroesophageal reflux disease (GERD) and eosinophilic esophagitis, is granted. Service connection for a functional gastrointestinal disorder of the bowels that manifests as abdominal pain and altered bowel habits is granted. REMANDED Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with one or more esophageal disorders and one or more functional gastrointestinal disorders of the bowels. 2. The Veteran had active service in the Southwest Asia Theater of Operations during the Persian Gulf War, and was exposed to various environmental hazards, to include burn pits. 3. The currently diagnosed esophageal disorders and functional gastrointestinal disorder of the bowels are related to the in-service environmental hazard exposure. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an esophageal disorder, to include GERD and eosinophilic esophagitis, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a functional gastrointestinal disorder of the bowels that manifests as abdominal pain and altered bowel habits have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 2004 to April 2005. The Veteran also had periods of duty with the Marine Corps Reserve. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), creates a new framework of review for veterans who disagree with VA's decision on their claim. In an August 2019 rating decision, the RO denied service connection for the issues on appeal. Subsequently, in an August 2020 VA Form 10182, the Veteran appealed the denials and requested the AMA Hearing Review lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). Under the AMA, when a claimant seeks appellate review through the Board of Veterans' Appeals (Board) hearing docket, the Board may consider the evidence of record at the time of the AOJ decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted within 90 days of the hearing. Pub. Law 115-55 (Aug. 23, 2017), 131 Stat. 1114 (to be codified at 38 U.S.C. § 7113(b)). The Veteran testified at a May 2021 AMA virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. 1. Service Connection for an Esophageal Disorder is Granted. 2. Service Connection for a Functional Gastrointestinal Disorder of the Bowels is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The currently diagnosed esophageal and bowel disabilities are not chronic diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, 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). 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). A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome (IBS)) 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). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). 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) headache; (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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for one or more esophageal and bowel disorders. Initially, the Board finds that the Veteran is currently diagnosed with one or more esophageal disorders and one or more functional gastrointestinal disorders of the bowels. During the course of this appeal VA received an August 2021 opinion letter from two of the Veteran's treating gastrointestinal physicians. Per the treatment letter, the Veteran's gastrointestinal symptoms and diagnoses included chronic abdominal pain, chronic idiopathic constipation, rectal pain, alternating constipation and diarrhea, a personal history of colon adenoma, chronic chest pain, GERD, eosinophilic esophagitis, and dysphagia. Such evidence supports that the Veteran is currently diagnosed with an esophageal disorder, to include GERD and eosinophilic esophagitis, and a functional gastrointestinal disorder of the bowels that manifests as abdominal pain and altered bowel habits. There is conflicting evidence of record as to whether the Veteran has a current diagnosis of irritable bowel syndrome (IBS). Per the above, IBS was not specifically mentioned in the August 2021 opinion letter, and a VA examiner in July 2019 did not find a current diagnosis of IBS; however, in an October 2018 intestinal disability benefits questionnaire (DBQ) completed by one of the private physicians that drafted the August 2021 opinion letter, the private physician did diagnosis IBS. Nevertheless, the Board need not determine whether the Veteran has a current diagnosis of IBS at this time because the Board has found that the Veteran has a current diagnosis of a functional gastrointestinal disorder of the bowels that manifests as abdominal pain and altered bowel habits. As the current functional gastrointestinal disorder includes all symptoms that would normally be attributable to a diagnosis of IBS, and grants service connection for said functional gastrointestinal disorder of the bowels, all the bowel disorder symptoms will be rated upon the instant matter returning to the AOJ for an initial disability rating. Next, the Board finds that the Veteran had active service in the Southwest Asia Theater of Operations during the Persian Gulf War, and was exposed to various environmental hazards, to include burn pits. Such a finding is supported by the Veteran's May 2021 credible testimony that responsibilities as a heavy engineer equipment operator brought the Veteran to the burn pits on a regular basis. Finally, having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the currently diagnosed esophageal disorders and functional gastrointestinal disorder of the bowels are related to the in-service environmental hazard exposure. As discussed above, during the course of this appeal VA received an August 2021 opinion letter from two of the Veteran's treating gastrointestinal physicians. Per the letter, these physicians have been treating the Veteran's gastrointestinal symptoms since December 2007. After reviewing the relevant evidence of record, and considering the history of treatment, the physicians opined that it was more likely than not that the gastrointestinal symptoms, to include the currently diagnosed esophageal disorders and functional gastrointestinal disorder of the bowels, were due to in-service hazardous environmental exposure. The two physicians explained that the opinion was based upon their clinical experience and the medical literature showing a link between service in the Southwest Asia Theater of Operations and the onset of gastrointestinal disability symptoms. To the extent the record contains some evidence to the contrary, the Board finds such evidence to be at least in equipoise with the opinions of the gastrointestinal physicians who treated the Veteran for about 14 years. In sum, the evidence of record reflects that the Veteran is currently diagnosed with one or more esophageal disorders and one or more functional gastrointestinal disorders of the bowels, and that during service the Veteran was exposed to burn pits while serving in the Southwest Asia Theater of Operations during the Persian Gulf War. Per a private opinion letter from two of the Veteran's treating gastrointestinal physicians, it is more likely than not that the in-service hazardous environmental exposure caused the currently diagnosed gastrointestinal disabilities of the esophageus and bowels. As such, resolving all reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection for an esophageal disorder, to include GERD and eosinophilic esophagitis, and a functional gastrointestinal disorder of the bowels that manifests as abdominal pain and altered bowel habits, have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. REASONS FOR REMAND 3. Service Connection for Asthma is Remanded. The issue of service connection for asthma is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. 38 C.F.R. § 20.802(a). In July 2019, the Veteran was provided with a VA respiratory examination. At that time, the VA examiner diagnosed the Veteran with exercise related asthma and rendered a negative nexus opinion. In rendering this opinion, the VA examiner noted that the Veteran was diagnosed with exercise related asthma in 2007, and found that there was no evidence to support the presence of asthma during service in the service treatment records. Review of the Veteran's Marine Corps Reserve medical records, however, show that the Veteran completed a post-deployment health reassessment in June 2006 on which he specifically indicated having difficulty breathing, which he attributed to service in the Southwest Asia Theater of Operations. As it is unclear whether the VA examiner was aware of this post deployment health reassessment, the Board finds the July 2019 respiratory opinion to be inadequate to insure that any opinion is based on a full and accurate history. Further, as noted above, at the time of the July 2019 VA respiratory examination the VA examiner diagnosed exercise-related asthma. At the May 2021 virtual Board hearing, the Veteran challenged this diagnosis, arguing that the asthma was not exercise induced in nature. While there is evidence of record supporting the diagnosis of exercise-related asthma, a September 2007 VA treatment record did report "questionable bronchial asthma." It is possible for an individual to be diagnosed with more than one type of asthma. As remand is necessary in the instant matter to obtain an adequate medical opinion, the Board will direct that a new VA respiratory examination be performed to help clarify the type of asthma for which the Veteran is diagnosed. The issue of service connection for asthma is REMANDED for the following action: Schedule a VA respiratory examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinions: (Continued on the next page) A) The examiner should identify all forms of asthma for which the Veteran is diagnosed, to include exercise related asthma and/or bronchial asthma. If the VA examiner finds that the Veteran is only diagnosed with exercise related asthma, he/she should address the evidence of record to the contrary, to include the September 2007 VA treatment record noting a questionable diagnosis of bronchial asthma. B) For each type of asthma diagnosed, the VA examiner should opine as to whether it is at least as likely as not (50 percent or higher degree of probability) that the asthma had its onset during a period of active service, including as due to hazardous environmental exposure while serving in the Southwest Asia Theater of Operations. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.