Citation Nr: 21069785 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-04 239 DATE: November 19, 2021 ORDER Entitlement to service connection for an intestinal disorder is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a diagnosed intestinal disorder, a functional gastrointestinal disorder, or a medically unexplained chronic multisymptom intestinal illness defined by a cluster of signs or symptoms. CONCLUSION OF LAW The criteria for service connection for an intestinal disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1977 to August 1994. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2014 Rating Decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in December 2019 for additional development to include obtaining adequate medical opinions as to the nature and etiology of the Veteran's sleep apnea and any intestinal disorders. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. A review of the record reflects that the AOJ has substantially complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an intestinal disorder Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a 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 for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). For purposes of establishing service connection, a "current disability" includes a disability which existed at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if that disability is currently in remission or has completely resolved. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains evidence of a disability prior to a Veteran filing a claim for that disability, the evidence of disability is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) (considering the application of McClain on a diagnosis predating the filing of a claim). The Court in Romanowsky added that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance." Id. at 294 n.3. Service connection may be presumed for Persian Gulf Veterans' undiagnosed illnesses, medically unexplained chronic multisymptom illnesses, and any diagnosed illness that the Secretary of VA determines in regulations warrants a presumption of service connection. 38 U.S.C.A. § 1117(a); 38 C.F.R. § 3.317 (2018). A chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 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. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms such as: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i) (2018). Therefore, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as CFS, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air 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; and (4) that the symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317 (2018). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, 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 (2004). Further, lay persons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or an injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); Stankevich v. Nicholson, 19 Vet. App. 470 (2006). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be established under the specific provisions applicable to Persian Gulf War Veterans. Service connection for a diagnosed illness still may be established if otherwise warranted. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A Persian Gulf veteran is 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) (2018). The Southwest Asia Theater of operations refers to 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(e)(2) (2018). Analysis The Veteran contends that he has irritable bowel syndrome (IBS) and/or chronic diarrhea as residuals of diverticulitis. He alleges that his intestinal issues had their onset in service and are related to his exposure to environmental hazards in the Southwest Asia theatre of operations. With regard to a current diagnosis or chronic disability for Persian Gulf War exposure purposes, the Board finds that there is no diagnosis or chronic disability shown by the record for the period on appeal. The Veteran's current claim was filed in July 2014. The Board acknowledges that the Veteran was diagnosed with diverticulitis in 1999 and underwent a colectomy of his sigmoid colon in 2000. Well outside the period for which these conditions could be considered a current disability. In November 2012, the Veteran filed claims for service connection for IBS and diverticulitis. The claims were denied in January 2013 and not appealed. Of relevance to this claim is a January 2013 VA examination for intestinal conditions. A VA examiner found no evidence that the Veteran was diagnosed with or treated for IBS. The examiner noted the Veteran had a 2000 diagnosis for diverticulosis that was treated by colectomy. The Veteran also underwent a fistulotomy in 2004. The VA examiner noted a February 2010 CT of the Veteran's abdomen was normal with no acute intra-abdominal abnormalities. The Veteran reported 7 or more attacks of constipation with bloating and gas followed by loose stools within the 12-month period prior to the examination. During the pendency of this claim, the Veteran was afforded two additional VA examinations. In January 2016, the examiner found no evidence of IBS. The examiner acknowledged an August 2015 treatment note which stated "GI no nausea, vomiting, or stomach pain hx of IBS." The examiner explained that this note merely shows the Veteran reported that he had a history of IBS and was not a record of an actual diagnosis. The examiner's review of the medical record did not reveal a diagnosis of IBS. Rather, the Veteran reported that he assumed he had IBS based on discussions with other Veterans and articles he read online about his symptoms. As to the Veteran's lay complaints of diarrhea, the examiner noted that the medical record was devoid of any indication of chronic diarrhea. The examiner noted that the history provided for the claim was made after the Veteran discussed IBS with other Veteran's and conflicted with multiple histories provided in other medical records. The examiner cited the Veteran's VA treatment notes from 2004 to 2020 which showed no diarrhea or constipation on review of symptoms. Additionally, a specific note in 2015 showing no diarrhea states the following: "Patient had multiple stool negative for guiaic. Patient denies any rectal bleeding. Patient denies any chronic constipation or chronic diarrhea. No recent change in bowel function." Finally, the examiner found there was insufficient evidence for a diagnosis of IBS, no evidence for an undiagnosed GI illness, and no evidence for a diagnosable but medically unexplained chronic multi-symptom GI illness of unknown etiology. Additionally, the examiner found no evidence for a diagnosable chronic multi-symptom GI illness with a partially explained etiology. Similarly, the November 2020 VA examiner did not diagnose the Veteran with an intestinal condition. The examiner explained there were no medical records showing a diagnosis of IBS. The examiner noted the Veteran's history of diverticulosis which required multiple procedures and resolved at the end of 2004. The examiner noted that the medical evidence from 1999 to 2020 show consistent denial of diarrhea and constipation. The examiner additionally noted no objective manifestations of an intestinal disorder that were not due to a known clinical diagnosis. The examiner found no undiagnosed intestinal illness or chronic multi-symptom disability of unknown etiology. The Board finds that a current intestinal condition did not exist at the time the claim was filed or during its pendency. Lay evidence can be competent to establish a diagnosis when the layperson is competent to identify the medical condition. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran is not, however, competent to diagnose IBS. Further, the competent medical evidence establishes that the Veteran's diverticulosis resolved by 2004, 10 years prior to this claim. With regard to the Veteran's assertion of a gastrointestinal condition related to his service in the Southwest Asia Theater or Operations, the Veteran's treatment records reveal consistent denial of symptoms of an intestinal condition and no evidence of treatment for these symptoms in examinations or treatment records other than the 2013 examination. As addressed in the January 2016 opinion, the first mention of IBS in the Veteran's treatment records was based on self-report after the initiation of this claim and there is no indication of treatment for intestinal conditions. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value as statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board finds that the most probative medical and lay evidence fails to establish a diagnosis of an intestinal condition, a functional gastrointestinal disorder or a medically unexplained chronic multisymptom intestinal illness defined by a cluster of signs or symptoms. Lacking a current diagnosis for an intestinal disorder, a functional intestinal illness or evidence of a medically unexplained chronic multisymptom intestinal illness defined by a cluster of signs or symptoms such as diarrhea or constipation, the Veteran does not meet the cornerstone element of service connection under either section 3.303 or 3.317. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, an assessment of the remaining elements is not necessary, and service connection for an intestinal disorder is not warranted. Thus, the claim of entitlement to service connection is denied. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Board regrets further delay but finds that additional development is necessary before a decision may be rendered on the remaining issue on appeal. In December 2019, the Board explained, in pertinent part, that the record raises the possibility that the Veteran's obstructive sleep apnea is caused by his obesity, which in turn, potentially had its onset during service. Pursuant to the most recent remand, a November 2020 examiner opined that the Veteran's continued weight gain after service, crowded oropharynx, and advancing age were the likely causes of his OSA. A January 2016 VA examiner found the Veteran had an overweight neck, crowded mouth with large tongue, and a narrowed throat in part due to excess weight. The examiner opined that these physical characteristics were the likely reasons for the Veteran's OSA. Although VA has determined that obesity is not a ratable disability for service connection or secondary service connection compensation purposes, obesity may act as an "intermediate step" between a service-connected disability and a current disability, for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017). Further, under 38 C.F.R. § 3.310 (a), a disability which is proximately due to or the result of a service-connected disease or injury is service-connected. During the course of this appeal the Court of Appeals for Veterans Claims (CAVC) held that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). The Board finds that the November 2020 VA opinion is incomplete, and in light of the holding in Walsh, an addendum opinion is warranted to inform the Board whether the Veteran's obesity is aggravated by his service-connected conditions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the etiology of the Veteran's obesity. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner should respond to the following inquiries: a. Opine whether it is at least as likely as not (more than 50 percent probability) the Veteran's obesity was caused by any service-connected disability. c. Opine whether it is at least as likely as not (more than 50 percent probability) the Veteran's obesity was aggravated by any service-connected disability. The examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. Rather, the examiner should consider whether there has been "any incremental increase in disability or any additional impairment of earning capacity in the nonservice-connected disabilities resulting from the service-connected conditions regardless of its permanence." In rendering an opinion, the VA examiner should discuss and consider all probative medical evidence, especially including documentation in the Veteran's STRs about his BMI, as well as notes indicating that he had gained 21 pounds in the span of one year. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 2. Then re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman Associate 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.