Citation Nr: A21016934 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 200622-93355 DATE: October 19, 2021 ORDER Entitlement to service connection for gastrointestinal disability, to include gastroparesis, as secondary to service-connected diabetes mellitus, Type II, is granted. FINDING OF FACT The most probative evidence of record is at least in equipoise that the Veteran's diagnosed gastrointestinal disability, to include gastroparesis, is at least as likely as not proximately due to his service-connected diabetes mellitus, Type II. CONCLUSION OF LAW The criteria for service connection for gastrointestinal disability, to include gastroparesis, as proximately due to to service-connected diabetes mellitus, Type II, are 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 has active service from December 1961 to December 1964, and March 1965 to March 1968. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA was implemented effective February 19, 2019 and automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). The Veteran's claim of service connection for diabetic gastroparesis was initially denied in June 2018. That decision became final. A December 2019 AMA rating decision was issued, denying the claim citing new and material evidence had not been received. The rating decision was issued after the February 19, 2019 implementation of AMA.The Veteran filed a December 2019 VA Form 10182, requesting the direct review lane. In February 2020, the Board noted the RO had considered the incorrect standard as to new evidence under AMA. The Board applied the correct standard under AMA, found new and relevant evidence had been received, and readjudication was warranted. The Board remanded the claim for additional development (02/20/2020 BVA Decision). An April 2020 rating decision was issued, again denying the claim. This rating decision was also issued after the February 19, 2019 implementation of AMA. This decision is drafted in accordance with AMA. By his June 2020 VA Form 10182, the Veteran elected the hearing lane (06/22/2020 VA Form 10182 Notice of Disagreement). The Veteran appeared before the undersigned Veterans' Law Judge at a February 2021 hearing. The Board's review of the record is limited to consideration of evidence during the appeal period, evidence submitted at the hearing, including testimony, and any evidence submitted within 90 days after the hearing. Here, the appeal period ended on May 4, 2020, the date of notification of the April 2020 rating decision on appeal (5/04/2020 Notification Letter). The Board may also consider any evidence submitted at the February 2021 Board hearing, including the Appellant's testimony and any evidence submitted within 90 days thereafter. The Board notes it is bound by favorable findings in the Rating Decision on appeal. See 38 C.F.R. § 20.801 (a). In this case, the favorable findings include that the claimed issue is secondary to a service-connected disability, and the Veteran is service-connected for diabetes mellitus, Type II. Also, the Veteran has been diagnosed with functional constipation, gastroparesis (a type of autonomic diabetic neuropathy) and constipation (04/29/2020 Rating Decision Narrative, pg. 3). With regard to the February 2020 remand, the Board finds there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board may proceed with appellate review. Service connection for a gastrointestinal disability, as secondary to service-connected diabetes mellitus type II. The Veteran has claimed he has a gastrointestinal disability that is secondary to his service-connected diabetes mellitus, Type II. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established 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 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). As previously noted, the Veteran's gastrointestinal diagnoses have been established as a favorable finding (See also 02/25/2021 CAPRI, pgs. 32 and 65). The diagnoses include functional constipation and gastroparesis. Treatment records also suggest the Veteran has been assessed with irritable bowel syndrome, constipation, gastroparesis syndrome, and gastroesophageal reflux disease. A physician recommendation from April 2018 notes the Veteran's treatment for bloating, probably related to his diabetes (04/23/2018 Medical Treatment Record - Non-Government Facility, pg. 4). Diagnoses with diarrhea, constipation, and gastroesophageal reflux disease are also of record (03/26/2020 Medical Treatment Record - Non-Government Facility, pgs. 2 and 3). The Veteran's diagnosis with and service connection for diabetes mellitus, Type II has also been identified as a favorable finding and is established by the record. (See also 07/02/2021 Rating Decision - Codesheet). The question for the Board is whether the Veteran's gastrointestinal disability, to include gastroparesis, is proximately due to or the result of his service-connected disability. Medical evidence in favor of the claim includes a February 2018 letter from the Veteran's treating physician. The physician treats the Veteran for diabetes and complications stemming from diabetes. The physician opined the Veteran most likely has diabetic gastroparesis causing significant digestive complications and bloating (04/23/2018 Medical Treatment Record - Non-Government Facility). A March 2021 letter from the Veteran's treating physician reiterated that the Veteran has suffered from gastroparesis for many years. The physician explained that diabetes is the most frequently recognized systemic disease associated with gastroparesis. The physician opined the Veteran's diabetes is the most likely reason for his autonomic neuropathic dysfunction leading to his gastroparesis. All other causes leading to his gastroparesis have been exhausted (03/05/2021 Medical Treatment Record - Non-Government Facility). The Board has considered negative nexus opinions of record. The Veteran was afforded June 2018 and December 2019 VA examinations for stomach and duodenal conditions. The June 2018 examiner discussed the results of the Veteran's gastric emptying study, that revealed a fast transit time with no delay in emptying noted. As a result of the study, the Veteran was diagnosed with functional constipation, and not gastroparesis (06/05/2018 C&P Exam and 12/06/2019 C&P Exam).). Finding the June 2018 and December 2019 opinions and the gastric emptying study are in contradiction with the favorable finding of the Veteran's diagnosis with gastroparesis, the negative nexus opinions are not assigned significant probative weight. The Veteran was also afforded an April 2020 VA examination for intestinal conditions. At that time, diagnoses of functional constipation, gastroparesis (a type of autonomic diabetic neuropathy), and constipation were confirmed. After a thorough review of the Veteran's medical history, the April 2020 examiner opined that any diagnosed gastrointestinal disorder, to include functional constipation, diabetic gastroparesis, and diabetic autonomic neuropathy of the GI tract, was less as likely as not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected service-connected diabetes mellitus, Type II. The examiner explained the manifestations of autonomic diabetic neuropathy would not be isolated to involvement with only the gastrointestinal system. Per definition, autonomic neuropathy may occur for medical reasons that underly the condition, that are not related to diabetes, particularly when the diabetes is shown to be well controlled, as the Veteran's has been since 2005. The examiner emphasized the Veteran's diagnosis was determined to be functional constipation (04/09/2020 C&P Exam). After reviewing and weighing the medical evidence of record, the Board finds the most probative medical evidence to be in conflict, and thus in relative equipoise. The February 2018 and March 2021 letters from the Veteran's treating physician to be highly probative and weighing in favor of the Veteran's claim. The doctor's opinion that the Veteran's gastroparesis is related to his diabetes is based on a long-standing treating relationship with the Veteran and familiarity with the Veteran's symptoms, medical history, and progression of his diabetes. Weighing against the Veteran's claim is the April 2020 VA examination and accompanying negative nexus opinion. The Board acknowledges that examination is based on a complete and accurate review of the Veteran's record and the negative nexus opinion is well supported. Having found the most probative medical evidence of record is at least in equipoise that the Veteran has a currently diagnosed gastrointestinal disability, to include gastroparesis, is proximately due to his service-connected diabetes mellitus type II. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a gastrointestinal disability, to include gastroparesis, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.