Citation Nr: 21077384 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 11-32 554 DATE: December 29, 2021 ORDER Service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected posttraumatic stress disorder (PTSD) is denied. Service connection for an upper gastrointestinal disorder, to include hiatal hernia and gastrointestinal reflux disease (GERD), to include as secondary to service-connected posttraumatic stress disorder (PTSD), and as secondary to IBS, is denied. Service connection for fibromyalgia, to include as secondary to service-connected posttraumatic stress disorder (PTSD), and as secondary to IBS, is denied. Service connection for a low back disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD), and as secondary to IBS, is denied. FINDINGS OF FACT 1. IBS was not present in service or for years thereafter, and is not etiologically related to service or a service-connected disability. 2. An upper gastrointestinal disorder, to include hiatal hernia and GERD was not present in service or for years thereafter, and is not etiologically related to service or a service-connected disability. 3. Fibromyalgia was not present in service or for years thereafter, and is not etiologically related to service or a service-connected disability. 4. A low back disability was not present in service or for years thereafter, and is not etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for IBS have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for service connection for an upper gastrointestinal disorder, to include hiatal hernia and GERD have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to December 1990. The Veteran testified before the undersigned at a January 2013 Video Conference hearing. The hearing transcript is of record. In November 2014, April 2017, April 2018, November 2019, and October 2021, the Board remanded the case again for further development by the originating agency. The case has been returned to the Board for further appellate action. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310; see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including arthritis, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (b); 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). 1. Service connection for IBS, to include as secondary to service-connected PTSD The Veteran contends, in part, that her currently diagnosed IBS is related to her service-connected PTSD, resulting from an in-service sexual assault (military sexual trauma (MST))because she was assaulted rectally. See January 2013 Hearing Transcript. The Veteran further argues that there is a relationship between her IBS and in-service treatment for gastroenteritis, and she submitted medical articles on the relationship between gastroenteritis and IBS in August 2015. IBS was not diagnosed until years after service, and there is no competent evidence to establish that any current IBS is due to any event or incident of the Veteran's active service. Service treatment records show acute episodes of viral gastroenteritis, which resolved, with no diagnosis of gastroenteritis at discharge or for many years after service. They also show complaints of abdominal cramping and a possible ovarian cyst, during active duty, but there was no diagnosis of IBS during active duty or at discharge. Post-service treatment records, dated years after discharge, show the Veteran has been diagnosed with IBS. However, the evidence does not indicate that the diagnosed IBS is due to any event or incident of the Veteran's service or secondary to her service-connected PTSD. In this regard, an April 2019 VA examiner opined that the Veteran's IBS is not proximately due to, the result of, or aggravated by her PTSD. The rationale was that IBS symptoms result from disturbances in colonic motility (muscle contractions) and increased sensitivity to food, gas, or stool in the bowel. A possible factor like genetics can predispose one to IBS, and diet and lifestyle may trigger or exacerbate symptoms. However, the examiner concluded that there is no evidence that IBS is proximately due to or the result of PTSD, as IBS is a physiological condition and is not due to a mental condition. A July 2021 VA examiner noted that the Veteran has a long history of frequent episodes of viral gastroenteritis, abdominal pain, and ovarian cyst, but service treatment records are silent for a documented diagnosis of IBS. He noted further that there is no evidence in the remainder of the records clearly documenting any type of rectal trauma from MST that may be causing her current gastrointestinal (GI) complaints. Recent CT scan of abdomen and colonoscopy were largely normal with the exception of a colon diverticula. Based on review of the provided medical records, the examiner concluded that there is no evidence documenting that sexual assault (with rectal trauma) or history of multiple episodes of viral gastroenteritis, directly or indirectly caused IBS. However, as the July 2021 examiner did not discuss pertinent evidence, including the Veteran's January 2013 hearing testimony and an article submitted by the Veteran in August 2015, the Board remanded the claim again in October 2021 for another medical opinion. An October 2021 VA examiner opined that the currently diagnosed IBS was less likely than not incurred in or caused by service. The rationale was that the report of medical history and examination in July 1988, May 1989, and November 2006 do not reveal a history or physical examination findings for ongoing acute or chronic treatment of IBS. While VA examination in August 2019 documents a diagnosis of IBS, a review of the medical records did not reveal continuous ongoing medical treatment or aggravation of acute or chronic IBS from the time of discharge from active military service to present day. The examiner also opined that the Veteran's IBS was less likely than not aggravated beyond its natural progression by her service-connected PTSD, as due to military sexual trauma. The rationale was that although IBS can be associated with PTSD, medical record review did not reveal consistent clinical evidence for PTSD to negatively impact and proximately cause IBS. Finally, the examiner noted the Veteran's January 2013 hearing testimony and other medical evidence of record, noting a medical history of IBS, and gastroenteritis that resolved in 1989, and opined that the Veteran's IBS is less likely than not related to, proximately due to, or aggravated by her in-service rectal assault. The examiner explained that IBS can develop after a severe bout of diarrhea (gastroenteritis) caused by bacteria or a virus. IBS might also be associated with a surplus of bacteria in the intestines (bacterial overgrowth). However, the examiner concluded that the IBS condition is independent and separate from the history of military assault. The examiner also concluded that although IBS can be associated with gastroenteritis, a review of the medical records did not reveal consistent clinical evidence for the resolved gastroenteritis condition to negatively impact and proximately cause the Veteran's IBS condition. There are no probative contradictory medical opinions of record. The Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of IBS during service or at discharge, and the gap of many years between discharge and the first notation of IBS, the Board does not find the Veteran's accounts of IBS since service to be credible. As such, the Board finds the October 2021 VA examiner's opinions are supported, and an additional examination is not necessary. The Board also notes that the October 2021 opinions are not perfect, in that the examiner did not clearly explain what he meant by his finding that medical record review did not reveal consistent clinical evidence for PTSD to negatively impact and proximately cause IBS. Furthermore, he did not thoroughly explain why he found that the Veteran's IBS is independent and separate from the history of military assault. However, given the absence of any evidence showing the Veteran's IBS is related in any way to his service-connected PTSD, caused by MST, and the other medical opinions of record holding that the IBS is not caused by the service-connected disability, the Board finds that the October 2021 VA examiner's opinions are supported, and another examination is not necessary. The Board also acknowledges that the October 2021 VA examiner did not indicate that he had considered the article submitted by the Veteran in August 2015, discussing the possible relationship between gastroenteritis and IBS, as directed by the Board in the October 2021 remand. However, the Board notes that, as the Veteran is not service-connected for gastroenteritis, consideration of service connection for IBS, secondary to gastroenteritis is not warranted. As such, the Board finds that a remand for another VA examination is not necessary. There is no other evidence, VA or private, which indicates that the Veteran's IBS may be related to her active military service or her service-connected PTSD, caused by MST. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of IBS, the Board notes that this passage of time weighs significantly against a finding of direct service connection for this disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that her IBS is due to active military service and/or her service-connected PTSD/MST. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between her currently diagnosed IBS and her active service or a service-connected disability. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of her IBS. 38 C.F.R. § 3.159 (a)(1), (2). For the reasons and basis stated above, the Board finds that service connection for IBS is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 2. Service connection for an upper gastrointestinal disorder, to include hiatal hernia and GERD, to include as secondary to service-connected PTSD, and as secondary to IBS The Veteran contends that she has a currently diagnosed upper gastrointestinal (GI) disorder, to include a hiatal hernia and GERD, related to service and/or her service-connected PTSD. An upper GI disorder was not diagnosed until years after service, and there is no competent evidence to establish that any current upper GI disorder is due to any event or incident of the Veteran's active service. As noted above, service treatment records show GI complaints diagnosed as mild gastroenteritis, as well as complaints of abdominal cramping and a possible ovarian cyst, and several complaints of nausea during active duty, but there was no diagnosis of gastroenteritis, a hiatal hernia, GERD, or any other upper GI disorder at discharge. Post-service treatment records, dated years after discharge, show the Veteran has been diagnosed with GERD. However, the evidence does not indicate that any upper GI disorder is due to any event or incident of the Veteran's service or her service-connected PTSD. In this regard, a September 2017 VA examiner opined that it is less likely as not that a hiatal hernia and/or GERD began during service or is otherwise related to service. The rationale was that service treatment records are silent for diagnosis, treatment, or evaluation of hiatal hernia and/or GERD. There is no evidence in the medical records of complaint, treatment, or evaluation for GERD since discharge in December 1990 until May 2005, when the Veteran was diagnosed with GERD. The examiner also noted that GERD is the backup of stomach acid or bile into the esophagus. The symptoms of GERD are a burning sensation in the chest (heartburn), sometimes spreading to your throat, chest pain, difficulty swallowing (dysphagia), dry cough, hoarseness or sore throat, regurgitation of food or sour liquid (acid reflux), and sensation of a lump in your throat. There is no evidence in the medical literature that establishes a relationship between symptoms of vomiting, nausea, or low abdominal cramps with GERD. The Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of an upper GI disorder during service or at discharge, and the gap of many years between discharge and the first notation of an upper GI disorder, the Board does not find the Veteran's accounts of an upper GI disorder since service to be credible. As such, the Board finds the September 2017 VA examiner's opinion is supported, and an additional examination is not necessary. An April 2019 VA examiner opined that the Veteran's upper GI disorders, to include hiatal hernia and GERD, are less likely as not proximately due to, the result of, or aggravated by the Veteran's service-connected PTSD. The rationale was that GERD occurs when stomach acid frequently flows back into the tube connecting the mouth and stomach (esophagus). This backwash (acid reflux) can irritate the lining of the esophagus. GERD is caused by frequent acid reflux. It is a physiological condition and is not due to a mental condition. The examiner also noted that hiatal hernia is an anatomic defect that makes it possible for the stomach to push through the diaphragm. Because hiatal hernia is an anatomic defect there is no evidence that this condition is proximately due to, the result of, or aggravated by PTSD. The examiner also noted that there is no evidence of hiatal hernia in any of the endoscopies done to the Veteran in May 2005, December 2006, February 2010, or August 2017. There is no other evidence, VA or private, which indicates that the Veteran has an upper GI disorder that may be related to her active military service or a service-connected disability. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of an upper GI disorder, the Board notes that this passage of time weighs significantly against a finding of direct service connection for an upper GI disorder. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Board acknowledges the Veteran's assertion that she has an upper GI disorder, due to active military service and/or her service-connected PTSD/military sexual trauma. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between any currently diagnosed upper GI disorder and her active service or a service-connected disability. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of any current upper GI disorder. 38 C.F.R. § 3.159 (a)(1), (2). The Veteran also contends that she has an upper gastrointestinal disorder that is secondary to her currently diagnosed IBS. A July 2021 VA examiner opined that, as research has shown a correlation between IBS and the development of GERD, the Veteran's GERD is secondary to her IBS. However, the Board notes that, as the Veteran is not service-connected for IBS, consideration of service connection for an upper GI disorder, secondary to IBS is not warranted. For the reasons and basis stated above, the Board finds that service connection for an upper GI disorder is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 3. Service connection for fibromyalgia, to include as secondary to service-connected PTSD, and as secondary to IBS 4. Service connection for a low back disability, to include as secondary to service-connected PTSD, and as secondary to IBS The Veteran contends, that her currently diagnosed fibromyalgia and low back disability are related to active military service and/or her service-connected PTSD, resulting from an in-service sexual assault. Fibromyalgia and a low back disability were not diagnosed until years after service, and there is no competent evidence to establish that any current fibromyalgia or low back disability is due to any event or incident of the Veteran's active service. Service treatment records do not show a diagnosis of fibromyalgia or a low back disability during active duty or at discharge. Post-service treatment records, dated years after discharge, show the Veteran has been diagnosed with fibromyalgia and degenerative arthritis of the lumbar spine. However, the evidence does not indicate that the diagnosed fibromyalgia or low back disability are due to any event or incident of the Veteran's service or her service-connected PTSD. In this regard, in a September 2009 statement the Veteran's private physician indicated that the Veteran had been diagnosed with fibromyalgia since 2005, and opined that it was possible that she may have had the disorder while on active duty. The Board finds that the inconclusive nature of this opinion makes it inadequate for evaluation purposes. An April 2019 VA examiner opined that it is less likely than not that the Veteran's fibromyalgia/diffuse chronic pain syndrome and low back disability had their onset in service or are directly linked to the Veteran's time on active duty. The rationale was that service treatment records are silent for diagnosis, treatment, or evaluation for fibromyalgia or low back disability. The examiner also noted that there is no evidence in the medical records of complaint, treatment, or evaluation for fibromyalgia (2005) or a low back disability (1995) for many years after discharge. It was also noted that the Veteran's low back disability was aggravated by a motor vehicle accident in 2003. The April 2019 VA examiner also opined that the Veteran's fibromyalgia and low back disability were less likely as not proximately due to, the result of, or aggravated by the Veteran's service-connected PTSD. The rationale was that fibromyalgia is a disorder characterized by widespread musculoskeletal pain, accompanied by fatigue, sleep, memory and mood issues. Researchers believe that fibromyalgia amplifies painful sensations by affecting the way the brain processes pain signals. There is no evidence that the fibromyalgia is proximately due to or the result of PTSD. Fibromyalgia is a neurological condition and is not due to a mental condition. The examiner also noted that the cause of degenerative disc disease is aging, which causes degeneration of the intervertebral disc. It is a normal aging process. There is no evidence that degenerative disc disease in the lumbar spine is proximately due to or the result of PTSD. The examiner also noted that the article submitted by the Veteran in August 2015, discussing the possible relationship between fibromyalgia and PTSD, concluded that PTSD is a risk factor for fibromyalgia and vice versa. However, the examiner noted that a risk factor is not an etiology. The Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of fibromyalgia during service or at discharge, and the gap of many years between discharge and the first notation of fibromyalgia, the Board does not find the Veteran's accounts of fibromyalgia since service to be credible. As such, the Board finds the October 2021 VA examiner's opinions are supported, and an additional examination is not necessary. There is no other evidence, VA or private, which indicates that the Veteran's fibromyalgia or low back disability may be related to her active military service or a service-connected disability. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of fibromyalgia or a low back disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for fibromyalgia or a low back disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that the Veteran's lumbar spine arthritis was diagnosed more than one year after the Veteran's discharge from service. The Board acknowledges the Veteran's assertion that her fibromyalgia and low back disability are due to military service and/or her service-connected PTSD/MST. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between her currently diagnosed fibromyalgia or low back disability and her active service or a service-connected disability. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of her fibromyalgia or her low back disability. 38 C.F.R. § 3.159 (a)(1), (2). The Veteran also contends that her fibromyalgia and low back disability are secondary to her currently diagnosed IBS. Private treatment records from Waterloo Internal Medicine dated in September and November 2005 show the Veteran was noted to have a diagnosis of diffuse myalgias, secondary to fibromyalgia, and that her symptoms were consistent with IBS. See private treatment records from Waterloo Internal Medicine submitted in August 2008. There is no rationale for the conclusion reached in these medical records, and the physician did not indicate that she had reviewed the Veteran's claims file prior to making her findings. As such, the opinion is inadequate for evaluation purposes. Pursuant to the Board's October 2021 remand directives, the Veteran was afforded her most recent VA examinations in October 2021. The examiners opined that the Veteran's fibromyalgia and low back disability are not related to, proximately due to, or aggravated by her IBS. Moreover, as the Veteran is not service-connected for IBS, consideration of service connection for fibromyalgia or a low back disability, secondary to IBS is not warranted. For the reasons and basis stated above, the Board finds that service connection for fibromyalgia or a low back disability is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.