Citation Nr: 21067448 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-37 348 DATE: November 4, 2021 ORDER Entitlement to service connection for irritable bowel syndrome is granted. REMANDED Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The evidence in equipoise as to whether the Veteran has irritable bowel syndrome that is manifested by moderate symptomatology with frequent episodes of bowel disturbance and abdominal distress. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for irritable bowel syndrome have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.317, 4.114, Diagnostic Code 7319 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1989 to May 1993, to include service in the Southwest Asia theater of operations during the Persian Gulf War, and with the Army National Guard from May 1993 to July 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of June 2014 (denials of service connection for chronic fatigue syndrome, back strain, and hearing loss) and June 2016 (denial of service connection for irritable bowel syndrome) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. In July 2020, the Board remanded the claims for further development. 1. Entitlement to service connection for irritable bowel syndrome Governing law and regulations Service connection may also be established for a chronic disability resulting from an 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 not later than December 31, 2021. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. 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(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d)(2). A 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i). 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 referred to in this section 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. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a) (2-5). 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. A 30 percent rating is the maximum rating and is warranted for severe episodes of diarrhea, or severe alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Analysis During his period of service, the Veteran received the Southwest Asia Service Medal with two Bronze Service Stars, the Kuwait Liberation Medal, and the Combat Infantryman Badge. Therefore, he served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The next matter is whether the Veteran has or has had irritable bowel syndrome since he filed his claim in March 2016. A June 2016 VA intestinal conditions examination report reflects that the examiner initially stated that the Veteran does not have an intestinal condition. That examiner, however, also noted that the Veteran's diarrhea is likely secondary to irritable bowel syndrome. A June 2016 VA fibromyalgia examination report reveals the Veteran has irritable bowel symptoms as symptoms of fibromyalgia. VA treatment records show a diagnosis of irritable bowel syndrome. A March 2016 private treatment record reveals a diagnosis of irritable bowel syndrome. The weight of the evidence shows that the Veteran has irritable bowel syndrome. The next matter is whether the irritable bowel syndrome is manifested to a degree of 10 percent or more. There is conflicting evidence. The June 2016 VA examiner noted that the irritable bowel syndrome was manifested by occasional episodes of bowel disturbance with abdominal distress. VA treatment records reflect that from November 2017 to April 2019 the Veteran reported at exams that had no constipation or diarrhea and that the irritable bowel syndrome was considered stable. VA treatment records reveal that in May 2019, the Veteran reported that he had changed his diet because of bloating and that he had mixed irritable bowel syndrome. He reported that he had lost 13 to 14 pounds since September 2018 but that he had been eating less in order to avoid bloating and abdominal distention. The Veteran also reported several episodes of bright red blood per the rectum, which he attributed to severe constipation, and that he currently had diarrhea and constipation. In July 2019, the Veteran was scheduled for a colonoscopy because of a change in bowel movements. At the colonoscopy, he denied having diarrhea or constipation. At the September 2019 hearing, the Veteran testified that his irritable bowel syndrome is controlled by diet and that his doctors informed him that his condition had worsened. Hearing transcript, page 14. He added that he has incontinence and explosive diarrhea at times. Id. at 14-15. The Veteran stated that he is a nurse. Id. at 17-18. As a medical professional, the Veteran is competent to report what his doctors told him and the Board finds him credible in his reporting that his doctors told him that his irritable bowel syndrome had worsened. In December 2019, the Veteran denied having constipation or diarrhea and the irritable bowel syndrome was considered stable at that time. In August 2020, the Veteran denied having constipation or diarrhea. In April 2021, it was noted that the Veteran has irritable bowel syndrome with constipation and diarrhea that is controlled by a plant-based diet. Given the Veteran's testimony about his symptomatology, to include his doctors reporting a worsening, the evidence of weight loss, blood from constipation, and changes in bowel movements to warrant a colonoscopy, and the need to be on a plant-based diet to control the irritable bowel syndrome, the evidence in equipoise as to whether the Veteran has irritable bowel syndrome that is manifested by moderate symptomatology with frequent episodes of bowel disturbance and abdominal distress. The weight of evidence further shows that there is no affirmative evidence that the irritable bowel syndrome was not incurred during service in the Southwest Asia theater of operations during the Persian Gulf War, that the irritable bowel syndrome was caused by a supervening disorder or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability, or that the irritable bowel syndrome is the result of his own willful misconduct or the abuse of alcohol or drugs. Hence, service connection on a presumptive basis is in order. 38 U.S.C. §§ 1110, 1131, 5107. REASONS FOR REMAND VA treatment records reveal that in April 2021 the diagnoses and other health issues included chronic fatigue. The Veteran's VA chronic fatigue syndrome examination was in June 2014. A VA medical opinion addressing whether the Veteran has chronic fatigue syndrome was prepared in January 2021. Given the recent evidence of the fatigue being chronic in nature, which is subsequent to the January 2021 medical opinion, and the passage of time since the VA examination in 2014, a new VA examination to determine whether the Veteran has chronic fatigue syndrome is warranted. A May 2014 VA hearing loss examination report reflect that the examiner opined that it was as likely as not the hearing loss in both ears was caused by or a result of an event in military service. That examination report, however, did not reveal a hearing loss disability in either ear for VA purposes. 38 C.F.R. § 3.385 (2021). VA treatment records show that in February 2018 the Veteran had a mild-to-moderate flat sensorineural hearing loss in both ears. The actual audiometric results are not of record. The Veteran should be afforded another VA examination to determine whether he has a hearing loss disability for VA purposes. In July 2020, the Board remanded the claim of service connection for a back disability for a VA examination and medical opinion. The February 2021 VA examiner diagnosed degenerative arthritis of the spine and lumbar radiculopathy. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's bases included a finding that there were no medical notes available that demonstrate that he was evaluated and treated for back pain. The Veteran's Army National Guard service treatment records, however, reveal that he was assigned light duty for 24 hours in August 1997 due to lumbar strain. VA X-rays of the lumbar spine taken in March 2019 show dextroscoliosis and osteopenia. The VA examiner did not address whether these disabilities are related to active service. Moreover, it is unclear whether the examiner considered the Veteran's contention he injured his back in basic training and jump school and that he had 30 jumps in jump school and Ranger school. In light of the above, the RO did not comply with the directives of the July 2020 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). An addendum to the VA examination is necessary. At the February 2021 VA back examination, the Veteran reported that he receives treatment from Louro Chiropractor. Similarly, he testified that he receives treatment from a private rheumatologist. The RO should attempt to obtain these treatment records as well as any additional treatment records from the VA New Jersey Health Care System from August 2021 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for hearing loss, chronic fatigue syndrome, and his back disability, and obtain any identified records. Obtain the Veteran's VA treatment records from the VA New Jersey Health Care System for the period from August 2021 to the present. Ask the Veteran to complete a VA Form 21-4142 for Louro Chiropractor, his private rheumatologist, and any other private medical providers. Make two requests for the authorized records from Louro Chiropractor, his private rheumatologist, and any other private medical providers, unless it is clear after the first request that a second request would be futile. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any hearing loss in either ear. 3. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any fatigue. The examiner should offer an opinion as to the etiology of fatigue, to include commenting on whether this symptom is attributable to a known clinical diagnosis, such as chronic fatigue syndrome. If that examiner cannot identify a disease or disability that causes the reported fatigue, the examiner should so state. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has chronic fatigue syndrome. If chronic fatigue syndrome is diagnosed, the examiner should opine on whether it is at least as likely as not that the chronic fatigue syndrome is manifested by signs and symptoms that wax and wane and result in periods of incapacitation at least one week in total duration per year. The examiner should be informed that incapacitation only exists when a licensed physician prescribes bed rest and treatment. If chronic fatigue syndrome is diagnosed, the examiner should opine on whether it is at least as likely as not that the chronic fatigue syndrome is manifested by the need for continuous medication for control of the disability. If a disease or disability other than chronic fatigue syndrome is identified regarding fatigue, the examiner should specifically opine on whether it is at least as likely as not that such a disease or disability is related to an in-service injury, event, or disease, including exposure to environmental hazards during service in the Persian Gulf region. If a disease or disability other than chronic fatigue syndrome is identified regarding fatigue, the examiner must opine on whether it is at least as likely as not that the Veteran's current disease or disability has an inconclusive etiology. The examiner must opine on whether it is more likely than not that the Veteran's current disease or disability results from a partially understood etiology. The examiner must opine on whether it is more likely than not that the Veteran's current disease or disability results from a known etiology. The examiner should provide detailed rationale and citation to evidence that are particular to the Veteran's circumstances. If a disease or disability other than chronic fatigue syndrome is identified regarding fatigue, the examiner must opine on whether it is at least as likely as not that the Veteran's disease or disability has an inconclusive pathophysiology. The examiner must opine on whether it is more likely than not that the Veteran's disease or disability has a partially explained pathophysiology. The examiner must opine on whether it is more likely than not that the Veteran's disease or disability has a fully understood pathophysiology. The examiner should provide detailed rationale and citation to evidence that are particular to the Veteran's circumstances. If the fatigue is not attributed to a known disease or disability, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that the fatigue is manifested by signs and symptoms that wax and wane and result in periods of incapacitation at least one week in total duration per year. The examiner should be informed that incapacitation only exists when a licensed physician prescribes bed rest and treatment. If the fatigue is not attributed to a known disease or disability, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that the fatigue is manifested by the need for continuous medication for control of the symptom. 4. The RO should arrange for the Veteran's electronic claims file to be reviewed by the VA examiner who prepared the January 2021 VA medical opinion for the preparation of an addendum regarding the nature of the back disabilities. If that examiner is unavailable, arrange for the claims file to be reviewed by another medical professional. The Veteran should only be scheduled for another examination if the new medical professional deems it necessary. Accepting the Veteran's reporting of back injuries during basic training and jump school as credible and accepting that the Veteran performed 30 parachute jumps during jump school and Ranger school, the clinician must opine whether it is at least as likely as not (50 percent or greater probability) that degenerative arthritis of the lumbar spine is related to an in-service injury, event, or disease during active duty from October 1989 to May 1993, including back injuries during basic training and jump school and 30 parachute jumps during jump school and Ranger school. The clinician must opine on whether it is at least as likely as not that the degenerative arthritis of the lumbar spine (1) began during active duty from October 1989 to May 1993, or (2) manifested within one year after discharge from active duty in May 1993. The clinician must opine whether it is at least as likely as not that degenerative arthritis of the lumbar spine is related to the lumbar strain noted during Army National Guard service in August 1997. Accepting the Veteran's reporting of back injuries during basic training and jump school as credible and accepting that the Veteran performed 30 parachute jumps during jump school and Ranger school, the clinician must opine whether it is at least as likely as not that lumbar radiculopathy is related to an in-service injury, event, or disease during active duty from October 1989 to May 1993, including back injuries during basic training and jump school and 30 parachute jumps during jump school and Ranger school. The clinician must opine on whether it is at least as likely as not that the lumbar radiculopathy (1) began during active duty from October 1989 to May 1993, or (2) manifested within one year after discharge from active duty in May 1993. The clinician must opine whether it is at least as likely as not that the lumbar radiculopathy is related to the lumbar strain noted during Army National Guard service in August 1997. Accepting the Veteran's reporting of back injuries during basic training and jump school as credible and accepting that the Veteran performed 30 parachute jumps during jump school and Ranger school, the clinician must opine whether it is at least as likely as not that dextroscoliosis is related to an in-service injury, event, or disease during active duty from October 1989 to May 1993, including back injuries during basic training and jump school and 30 parachute jumps during jump school and Ranger school. The clinician must opine whether it is at least as likely as not that dextroscoliosis is related to the lumbar strain noted during Army National Guard service in August 1997. Accepting the Veteran's reporting of back injuries during basic training and jump school as credible and accepting that the Veteran performed 30 parachute jumps during jump school and Ranger school, the clinician must opine whether it is at least as likely as not that osteopenia is related to an in-service injury, event, or disease during active duty from October 1989 to May 1993, including back injuries during basic training and jump school and 30 parachute jumps during jump school and Ranger school. The clinician must opine whether it is at least as likely as not that osteopenia is related to the lumbar strain noted during Army National Guard service in August 1997. 5. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remains denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC), with a copy to his agent, and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.