Citation Nr: 21073625 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-19 259 DATE: December 9, 2021 ORDER Entitlement to service connection for a gastrointestinal disability manifested by chronic diarrhea is granted. Entitlement to service connection for depression, as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran has a gastrointestinal disability manifested by diarrhea, which has not been attributed to any diagnosed illness; the evidence does not establish a nexus between the Veteran's gastroesophageal reflux disease (GERD) and service or a service-connected disability. 3. The Veteran's depression is proximately due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a gastrointestinal disability manifested by chronic diarrhea as due to an undiagnosed illness have been met. 38 U.S.C.§§ 1110, 1117, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for entitlement to service connection for depression as secondary to the service-connected PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1995 to June 2000, and from January 2003 to May 2004. This case was initially before the Board in November 2018, when the Board reopened and broadened the Veteran's claim for acid reflux/GERD to include any gastrointestinal disorder. The Veteran's claims were again remanded for additional development in April 2021. An additional claim for service connection for an eye disability was remanded at that time. In an October 2021 rating decision, the agency of original jurisdiction granted service connection for a bilateral dry eye disorder. This issue is no longer before the Board. The remaining issues were readjudicated in an October 2021 supplemental statement of the case and are once again before the Board. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a gastrointestinal disability, to include chronic diarrhea. Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2026. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Unlike service connection on a direct basis, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. The term "Persian Gulf Veteran" means a Veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations. 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(e)(2). The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (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 disorders). 38 C.F.R. § 3.317(a)(2)(i). A 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 will not be considered medically unexplained. See 38 C.F.R. § 3.317(a)(2). "Objective indications of 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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (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; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For the purposes of 38 C.F.R. § 3.317, disabilities that have existed for six months or more or 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. 38 C.F.R. § 3.317(a)(4). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Initially, the Board notes that the Veteran's service in Southwest Asia has been conceded. Accordingly, the Board finds that the Veteran is considered a Persian Gulf Veteran for purposes of the applicability of 38 C.F.R. § 3.317. The Veteran asserts that entitlement to service connection for a gastrointestinal disability manifested by diarrhea is warranted. Specifically, he has stated that he began to experience chronic gastrointestinal symptoms since his active duty in Southwest Asia. The evidence supports these contentions. As noted in the prior Board remand, many of the Veteran's service treatment records have not been located. Nevertheless, the Veteran submitted a November 2011 buddy statement from a fellow servicemember. She attested that while stationed in Iraq, the Veteran was one of many in the unit to get infected with a virus that resulted in severe abdominal cramping and diarrhea. VA treatment records continue to reflect complaints by the Veteran of persistent and chronic diarrhea. See VA Treatment records March 2015, April 2015, June 2015. The Board has considered that the June 2015 VA treatment record noted that there was a question of whether the Veteran had celiac disease, and a July 2016 VA treatment record noted that his chronic diarrhea was better with probiotics. However, a July 2015 barium study revealed an essentially unremarkable upper GI and small bowel series. The Board notes that the Veteran has not been assigned a clear diagnosis to his gastrointestinal complaints. For example, a June 2021 Intestinal Conditions VA examination noted no diagnosis of an intestinal condition despite noting complaints of an upset stomach and diarrhea. An August 2019 VA examination report noted chronic diarrhea and small intestine bacterial overgrown with anaerobic bacteria. The examiner noted that the Veteran had chronic diarrhea with questionable gluten hypersensitivity. A negative nexus opinion at that time was based on no gastrointestinal symptomatology while in service, which is not correct. As previously noted, a large portion of the Veteran's service treatment records have not been located. An August 2015 VA examination noted a diagnosis of chronic diarrhea, later noting a positive gluten sensitivity. In a December 2015 VA addendum opinion, the examiner noted that the Veteran had been diagnosed with a gluten sensitivity. However, the examiner stated that he was unable to state without speculation that a chemical exposure while in the Gulf had caused his gluten sensitivity. At a May 2014 VA examination the Veteran reported that he had caught a virus in service that resulted in diarrhea and fatigue. Although post-service treatment records reflect a possible gluten sensitivity, the Veteran's examination reports have noted his gastrointestinal symptoms but have consistently declined to diagnose the Veteran with IBS or a specific gastrointestinal disability responsible for his chronic diarrhea. Accordingly, the Board finds that the Veteran's symptoms of diarrhea have not been attributed to any diagnosed illness. Based on the foregoing, the Board finds that service connection is warranted for a gastrointestinal disability manifested by chronic diarrhea, as due to undiagnosed illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. In this regard, gastrointestinal symptoms are among the signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness in Persian Gulf veterans. See 38 C.F.R. § 3.317(b). Here, the Veteran's competent reports of experiencing a gastrointestinal pathology including recurring diarrhea are well documented throughout the record. The Board additionally finds these competent assertions concerning his symptomatology to be credible, as they have remained consistent throughout the pendency of his claim and are supported by the findings of various medical professionals. Thus, in light of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for a gastrointestinal disability manifested by diarrhea, as due to undiagnosed illness. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. However, with respect to the Veteran's claimed diagnosis of GERD, the Board finds that the evidence does not support an etiological relationship between his disability and service or a service-connected disability. The Board will first consider this claim on a secondary service connection basis. The Veteran essentially contends that his GERD is secondary to his service-connected PTSD. In a June 2021 VA opinion, the examiner noted that the Veteran's GERD is not due to his PTSD. The examiner stated that there have been no diagnostic findings of significance seen on endoscopy, upper GI, labs, weight loss or clinical exam. He noted that the Veteran is controlling his symptoms with diet and not taking any medication. The examiner stated that the condition had not worsened and had stayed the same. The examiner also noted that the Veteran's GERD was not aggravated by his PTSD. He noted that the Veteran's condition remains mild and clinically is not progressing. The Board finds that the June 2021 opinion is adequate for adjudicative purposes. Significantly, the examiner considered the Veteran's history and provided sufficient rationale for the opinions stated. These opinions provide evidence against this claim, making it less than likely such a connection exists. The Board further finds compelling the fact that no probative medical evidence is of record to support a conclusion that the Veteran's GERD was caused or aggravated by his service-connected PTSD. The Board has also considered the statements made by the Veteran relating his GERD to his service-connected PTSD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of GERD, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, after weighing the pertinent evidence of record, the Board concludes that the preponderance of the evidence is against entitlement to service connection for GERD, as secondary to his service-connected PTSD. The Board also considers the theory of entitlement to service connection for GERD on a direct basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the claimed disorder and any other incident of active service, as will be discussed below. As previously noted, most of the Veteran's service treatment records have not been located. Nevertheless, the Veteran submitted a November 2011 buddy statement from a fellow servicemember. She attested that while stationed in Iraq, the Veteran had complained of recurrent acid reflux and heartburn. She reported that he had been prescribed antacids over the counter. The Board has considered the Veteran's statements regarding continuity of symptoms since service. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). As the Veteran's current GERD is not listed under 3.309(a), continuity of symptomatology is simply not applicable in the present case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board nevertheless notes that treatment records do not note diagnosis of GERD until around 2008 when he reported symptoms for 2 years. See February 2008 VA Treatment record. The Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. Here, however, the service and post-service evidence provides negative evidence against the claim. In a June 2021 VA opinion, the examiner noted that it was not at least as likely as not that the Veteran's GERD had onset in, or is otherwise related to, active military service. The examiner stated that the Veteran's claimed condition remains mild and is clinically not progressing. He stated that objectively there had been no diagnostic findings of significance and the Veteran was controlling his symptoms with diet and not taking any medications. The examiner considered the November 2011 lay statement noting that a fellow servicemember had witnessed the Veteran suffering from acid reflux during service. The examiner noted that GERD/acid reflux can occur to all people at some point in their lives but that it is not necessarily a debilitating chronic condition. He noted that GERD/acid reflux can be episodic and is not indicative of a chronic debilitating condition. A February 2016 VA examination and opinion noted that the Veteran did not have a current diagnosis of GERD. A May 2014 VA examination noted that the Veteran had GERD and it is not related to any specific exposure event during his service in Southwest Asia. The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his current GERD. Although the Board recognizes that the Veteran is competent to report symptoms of GERD such as feeling food coming up his throat, the evidence in this case demonstrates that his current GERD developed several years following separation from service. The weight of the evidence of record simply does not support a finding that his GERD is in any way related to symptomatology in service. In any event, the probative value of the statements of the Veteran's own contentions is outweighed by the June 2021 VA opinion. The Board thus concludes that the preponderance of the evidence shows that the Veteran's GERD did not manifest during service, is not otherwise etiologically related to service, and was not caused or aggravated by his service-connected PTSD. Therefore, the preponderance of the evidence is against the claim for service connection for GERD, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In sum, while the Board grants service connection for a gastrointestinal disability, claimed as chronic diarrhea, a separate grant for GERD is not warranted. 2. Entitlement to service connection for depression, to include as secondary to service-connected PTSD. The Board finds that service connection is warranted for depression as secondary to (meaning caused or aggravated by) the Veteran's already service-connected PTSD. See 38 C.F.R.§ 3.310. An August 2019 VA examination was most recently completed. The examiner opined that the Veteran's records and other information are consistent with an evolving case of PTSD that has led to symptoms of depression not requiring a separate diagnosis at this time. However, a January 2019 VA treatment record diagnosed both PTSD and depression. A March 2008 VA treatment record noted a diagnosis of PTSD with symptoms of depression. In an October 2010 Vet Center record, it was noted that the Veteran had significant depression, which is likely tied in part to his PTSD, but may be independent. As noted above, the evidence reflects that the Veteran has been diagnosed with depression. The treatment records, considered in a light most favorable to the Veteran, reflect that he has depression related to his PTSD. Accordingly, and based on a thorough consideration of this evidence, the Board finds that service connection for the depression is warranted as secondary to the service-connected PTSD. (Continued on next page) As noted above, the record reflects that the Veteran is already service connected and compensated for PTSD. Under the VA rating criteria, all psychiatric disabilities other than eating disorders are rated under one General Rating Formula detailed at 38 C.F.R. § 4.130. The practical effect of this Board decision is that all psychiatric symptomatology and social and occupational impairment will be recognized as originating from the now service-connected acquired psychiatric disorders of PTSD and depression. As such, the Board finds this to be a full grant of the benefit sought on appeal. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.