Citation Nr: 21074404 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-47 794 DATE: December 15, 2021 ORDER Entitlement to service connection for gastroenteritis, to include as secondary to service-connected multiple sclerosis (MS), is denied. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected MS, is denied. Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of gastroenteritis. CONCLUSION OF LAW The criteria for service connection for gastroenteritis, including as secondary to service-connected MS, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2004 to April 2008. These matters come before the Board of Veterans' Appeals (Board) from a September2014 rating decision by the Regional Office (RO). In March 2019, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In October 2019, the Board remanded the issues on appeal for further development. The matters have returned to the Board. Service Connection 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 be granted, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on this secondary basis, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a link between the service-connected disability and the current disability either by way of (a) causation or (b) aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement service connection for gastroenteritis, to include as secondary to service-connected MS. The Veteran contends that the onset of his gastroenteritis was on active duty. During his March 2019 Board hearing, the Veteran testified that he started having episodes of diarrhea while in service. Service treatment records show that the Veteran complained of nausea and vomiting in April 2006. He complained of nausea, vomiting, abdominal pain and diarrhea in January, March and September 2007; and the diagnosis was gastroenteritis. In December 2007, the Veteran again complained of vomiting and diarrhea and the diagnosis was acute gastritis. After separation from service, private treatment records show that the Veteran reported diarrhea for two weeks in December 2013. The assessment was abdominal pain, suspect acute diverticulitis. In January 2014, he complained of continuing abdominal pain. Computerized tomography (CT) scan of abdomen showed thickening in duodenum. The diagnosis was abdominal pain, suspect dyspeptic etiology and abdominal pain due to IBS. One week later, a genetic testing result revealed pattern consistent with irritable bowel disease (IBD), Crohn's disease. A September 2016 private gastroenterology note shows that the Veteran was seen for abdominal pain, steatosis, and bloating. The Veteran thought the discomfort might be related to his MS and autoimmune conditions. As for the claim for gastroenteritis, the Board concludes that the Veteran does not have a current diagnosis of gastroenteritis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The February 2020 VA examiner evaluated the Veteran and determined that based on history, examination, and records review, the Veteran does not have gastroenteritis. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating that service connection presupposes a current diagnosis of the condition claimed). The Veteran is competent to describe observable manifestations of a disability, such as diarrhea and abdominal pain. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while he believes he has a current diagnosis of gastroenteritis, he is not competent to provide a diagnosis in this case. This issue is medically complex, as it requires specialized medical education/knowledge of pathological processes within the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. For the reasons and bases discussed, the Board finds the preponderance of the evidence is against the claim for gastroenteritis. The Board has considered the benefit-of-the-doubt doctrine; however, there is not an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, this doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for IBS, to include as secondary to service-connected MS, is denied. In February 2020, a VA examiner provided an unfavorable opinion as to whether the Veteran's IBS (1) was at least as likely as not incurred in or caused by his service, or (2) is proximately due to, or aggravated by, his service-connected MS. In providing the aggravation opinion, the examiner stated that there was no evidence MS aggravated the IBS beyond its normal progression. This rationale applied the incorrect standard for secondary aggravation. The Board notes that any amount of aggravation is sufficient to establish secondary service connection, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). On remand, the VA examiner should ensure to apply the correct standard when providing an opinion as to secondary aggravation. 3. Entitlement to service connection for hemorrhoids is remanded. The Veteran contends that the onset of his hemorrhoids was on active duty. He stated that he was seen for hemorrhoids in service and the condition has been intermittent since that time. A May 2006 service treatment record reflects that the Veteran complained of intermittent hemorrhoids for three months. Post service, a January 2012 private treatment record shows complaints of hemorrhoids. In its October 2019 remand, the Board found that the evidence to be at least evenly balanced as to whether a current diagnosis of hemorrhoids is shown and therefore instructed the RO to obtain a medical opinion as to the etiology of this condition. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). This has not been done. On remand, a February 2020 VA examination was conducted. The examiner, however, indicated that the examination showed no current hemorrhoids and did not provide a medical opinion as to the claimed condition. Here, the examiner failed to consider the Veteran's reported history of the claimed hemorrhoids. The Board emphasizes that the Veteran is competent to describe observable manifestations of a disability, such as rectal bleeding. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Therefore, another remand is necessary because there has not been substantial compliance with the Board's October 2019 remand. The matters is REMANDED for the following actions: 1. Obtain any VA treatment records for the Veteran. All records and/or responses received should be associated with the claims file. 2. Forward the Veteran's claims file to the examiner who conducted the February 2020 VA examination, if available, to obtain a supplemental opinion to address aggravation of IBS. If the February 2020 VA examiner is not available, forward the Veteran's claims file to an examiner of the appropriate expertise. The examiner must determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's IBS is aggravated by his service-connected MS. The examiner is advised that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). A complete rationale must be provided for all opinions 3. Forward the Veteran's claims file to the examiner who conducted the February 2020 VA examination, if available, to obtain a supplemental opinion as to the etiology of hemorrhoids. If the February 2020 VA examiner is not available, forward the Veteran's claims file to an examiner of the appropriate expertise. The examiner must provide an addendum opinion, based on the service and post service treatment evidence of record, and the lay statements of record, as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current hemorrhoids diagnosed proximate to, or during, the appeal period, even if now resolved, had onset during service or is otherwise related to his military service. A complete rationale must be provided for all opinions expressed. 2. After completing the above development, and any other development deemed necessary, readjudicate the claims on appeal, taking into consideration any newly acquired evidence. If the benefits sought on appeal remain denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.