Citation Nr: A21019205 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200519-86311 DATE: December 2, 2021 ORDER Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected psychiatric disability, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for a disability of the right lower extremity, to include lumbar radiculopathy, is denied. Entitlement to service connection for a disability of the left lower extremity, to include lumbar radiculopathy, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The Veteran served in the Persian Gulf (Iraq) from February 2005 to October 2005 and September 2006 to November 2007. 2. The Veteran has never had IBS or a gastrointestinal disorder other than GERD and while pathology is not present, the etiology of his symptoms has been identified as his post-service diet, alcohol intake, and sedentary lifestyle. 3. GERD is a diagnosed illness, the pathology and etiology of GERD are clearly understood, and GERD is not otherwise attributable to, or incurred in, service. 4. The preponderance of the evidence of record is against a finding that the Veteran suffers from a bilateral disability of the lower extremities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for IBS, to include as secondary to service-connected psychiatric disability, have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. 3. The criteria for entitlement to service connection for a disability of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a disability of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2004 to November 2008. He served in the Persian Gulf (Iraq) from February 2005 to October 2005 and September 2006 to November 2007. The rating decision on appeal was issued in March 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. VA records were actually and constructively of record during a period of time when new evidence was not allowed. As the Board is deciding the claims, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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). Additionally, service connection may be established on a secondary basis for a disability that is aggravated by or proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability 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) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg.81836 (Dec. 29, 2011). 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. 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). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i)(B). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected psychiatric disability The Veteran contends that he has IBS as an unexplained illness, or symptoms of diarrhea and constipation as medically unexplained chronic multi symptom illness (MUCMI). He also asserts that he has IBS as the result of intermediate obesity caused by his service-connected psychiatric disability, particularly related to his psychiatric medications. A review of the Veteran's service treatment records (STRs) shows that in December 2005, he reported with complaints of nausea, vomiting and diarrhea. Gastroenteritis was assessed and the Veteran was treated with medication. An October 2007 STR reflects complaints of diarrhea and fever for 2 days. Gastroenteritis was assessed and treated with medication. A May 2008 STR documents an assessment of obesity related to excess energy intake. The Veteran was advised to decrease alcohol intake. He was assessed with "undesirable food choices" related to "food/beverage choices that are inconsistent with the Food Guide Pyramid ...." The Veteran initially presented for VA healthcare services in May 2009. An August 2010 VA review of systems note reflects that the Veteran denied heartburn, reflux, nausea, constipation, diarrhea, and changes in appetite. A June 2018 VA emergency department note related to a sore throat documents that the Veteran denied nausea, vomiting, abdominal pain, hematochezia, and melena. No record assesses IBS or any other gastrointestinal condition. In January 2020, the Veteran was afforded a VA examination to address his claim. At this time, the Veteran reported a history of irregular bowel movements for the past 3 to 4 years. He reported that most days he had a bowel movement two times per day, with consistency ranging from loose to firm. Following a review of the claims file and examination of the Veteran, the January 2020 VA examiner concluded that the Veteran had not then or ever been diagnosed as having an intestinal condition. The examiner stated that the Veteran did not have an illness, reasoning that the Veteran's symptoms do not rise to the level of a disease or pathologic condition and had no functional impairment on the Veteran's ability to work. They explained that the Veteran's Bowel movements were dependent on diet, exercise, hydration, and "other factors, noting that the Veteran drank six drinks of wine or whisky every night, which could be affecting his bowels. In addition, the examiner explained that the stated symptoms were inconsistent with the Veteran's medical records which did not show any mention of diarrhea or IBS. The examiner remarked further that the Veteran's symptoms were mild and did not rise to the level of a disease or pathologic condition. The examiner concluded that the symptoms were less likely than not to undiagnosed illness, stating that the Veteran was "normal." Rather, the examiner felt that the symptoms were more likely explained by lifestyle habits including diet, alcohol, and sedentary lifestyle. In a March 2020 statement, the Veteran described symptoms of bowel discomfort, that included "sudden needs to go, occasional constipation, pain and inconsistency in [his] stool." He contested the examiner's conclusion that his symptoms did not qualify as a "disease or pathological condition." He related that he was unsurprised to find out that he did not have a diagnosis given that he felt it was an undiagnosed illness. He also urged that service connection be granted for IBS due to weight gain assertedly resulting from medications taken for his service-connected psychiatric disability. He denied having sought treatment because he found it "embarrassing." He related that his symptoms impacted his employment but did not elaborate. Initially, the Board will address whether service connection is warranted as due to an undiagnosed illness or a MUCMI, e.g., IBS. IBS has not been assessed such that it is subject to presumptive service connection as an undiagnosed illness. Moreover, the Veteran's symptoms have been more likely than not attributed to his diet, alcohol intake and sedentary lifestyle, and are thus medically explained with a specific etiology. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). Service connection for these claims based on undiagnosed illness incurred due to Persian Gulf service is not warranted. 38 C.F.R. § 3.317. To the extent that the Veteran asserts that he has IBS otherwise incurred in or attributable to service, the claim is also not established. Even though the Veteran had two bouts of gastroenteritis in service, he has not been currently diagnosed with any disability of the gastrointestinal system, but for GERD (addressed below), during the course of the present claim and appeal, or at any time for that matter. Post-service, VA records document that the Veteran denied gastrointestinal symptoms on several occasions. Moreover, the January 2020 VA examiner found that the symptoms did not result in any disability because the Veteran's claimed symptoms were normal and had no impact on the Veterans ability to work, i.e., functional impairment. Along these lines, the Board acknowledges that the Veteran may experience occasional pain and discomfort, and that he alleges that this affects his employment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the VA examiner concluded that the symptoms had no functional impairment and there is no evidence of interference with employment, such as sick leave taken due to these symptoms. In closing, the Board acknowledges the Veteran's assertions that his symptoms qualify as an undiagnosed illness or a MUCMI and that service connection is thus warranted. However, the Veteran is a layperson, and this question is beyond his purview because its consideration requires specialized medical education and the knowledge of pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran has not demonstrated any competency to answer this question. Consequently, the Board gives more probative weight to the competent and probative medical evidence of record, which weighs against the claim. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). The Veteran claims that he has GERD as the result of his Persian Gulf service. He also claims that his GERD is an undiagnosed illness or MUCMI, subject to presumptive service connection. As noted above, the Veteran's STRs document two separate assessments of gastroenteritis. However, no STRs document assessment of GERD or any complaints of GERD, such as heartburn, regurgitation, etc. A March 2006 STR documents a report of "coughing up blood" after a "gagging episode." The Veteran's vitals were taken, but no assessment was made because the Veteran did not remain at the emergency room following his initial triage. Otherwise, no STR mentions any such symptom. As noted above, the Veteran presented for initial care at VA in August 2010. At that time, he denied heartburn, reflux, nausea, and any change in appetite. The earliest clinical notation of GERD is dated in February 2018, at which time it was noted that the Veteran had been prescribed ranitidine for heartburn. Subsequent VA records document assessment of GERD and that the Veteran was prescribed Prilosec. See June 2019 VA note. The Veteran was afforded a VA examination in January 2020. While GERD was assessed, the examiner concluded that it was neither an unexplained illness nor a MUCMI. At this time, the Veteran reported symptoms of dysphagia, pyrosis, reflux, regurgitation, substernal arm pain and sleep disturbance from esophageal reflux. There was no stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran related an onset of symptoms in 2007. Based upon a review of the record and examination of the Veteran, the examiner concluded that the GERD was less likely than not related to the Veteran's Persian Gulf service. The examiner explained that the etiology of GERD is the incompetence of the lower esophageal sphincter, and affected by many risk factors, including diet, alcohol, obesity, and hiatal hernia. Initially, the Board finds that service connection is not warranted for GERD as an undiagnosed illness or a MUCMI. GERD has been diagnosed and is not an undiagnosed illness, as outlined above, and the pathology and etiology of the Veteran's GERD are fully understood. The January 2020 VA examiner clearly explained that the Veteran's GERD is related to incompetence of the esophageal sphincter. Thus, GERD is not subject to presumptive service connection as an undiagnosed illness or MUCMI. See Stewart, 30 Vet. App. 383 The Veteran's GERD was not incurred in service and is not otherwise attributable thereto. While a single instance of the Veteran having coughed up blood is noted, no cause for those symptoms was ever found. Otherwise, the Veteran's STRs do not reflect any symptoms related to GERD, notwithstanding the Veteran's assertions that his symptoms began in service. Along these lines, the Board finds that the Veteran's statements regarding the onset and continuity of symptoms lacking in credibility because the Veteran denied having heartburn in August 2010 and the earliest clinical indication of GERD following service appears in a February 2018 VA treatment record. It is the duty of the Board as the fact finder to determine the credibility of the testimony and other lay evidence. Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). Otherwise, the January 2020 VA opinion otherwise shows that the Veteran's GERD was not incurred in, or otherwise attributable to, the Veteran's service. Thus, the evidence weighs against the claim and it is denied. In closing the Board acknowledges the Veteran's assertion that his GERD is a "functional gastrointestinal disorder" because there is no "structural abnormality," i.e., there is no pathology to account for his GERD. However, the Veteran is a layperson and not competent to make this assertion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Moreover, the Board points out that GERD has been attributed to a specific pathology incompetence of the lower esophageal sphincter. The competent medical evidence clearly shows an etiology and pathology for the Veteran's GERD. It does not qualify as an undiagnosed illness or MUCMI. 3. Entitlement to service connection for lumbar radiculopathy of the bilateral lower extremities The Veteran asserts that he has lumbar radiculopathy of the bilateral lower extremities, to include as secondary to his service-connected lumbosacral disability. He asserts that he has sharp pain in his legs in different locations during flare-ups of his lumbosacral spine disability and that this represents radiculopathy, i.e., neuropathy of each lower extremity. The Veteran's STRs reveal no assessment of radiculopathy, and the Veteran was not assessed with a low back disability until several years after his discharge when he injured his back in a weightlifting accident. An October 2005 STR documents a report of numbness or tingling in the hands or feet. The Veteran was provided a VA examination in September 2019. At that time, the Veteran complained of low back pain, but did not report any neurological symptoms. He described flare-ups as resulting in increased pain but did not relate any symptoms regarding the lower extremities. Muscle strength was normal. Reflexes were normal. Sensory exam was normal. Straight leg raising test was negative, bilaterally. Examination showed no signs of radiculopathy, including pain, paresthesias/dysesthesias, and numbness. There were no neurological abnormalities and intervertebral disc syndrome (IVDS) was ruled out. 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). The Board concludes that the Veteran does not have a current diagnosis of radiculopathy of either lower extremity. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The January 2020 VA examiner evaluated the Veteran and determined that he did not have a diagnosis of radiculopathy. Further, despite having received consistent VA treatment during the course of the claim and appeal, the treatment records do not contain a diagnosis of radiculopathy, neuropathy, or any other disability of the bilateral lower extremities. The Board is cognizant of the holding in Saunders v. Wilkie which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. 886 F.3d 1356, 1361 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, even in light of Saunders, the Veteran still does not have a present disability pertaining to the bilateral lower extremities as not only is there an absence from the record of a current diagnosis, there was no functional loss of the bilateral lower extremities during the described flare-ups. Thus, there is no competent, credible, and probative evidence of any functional loss or functional impairment due to bilateral lower extremity pain. The Board must weigh the medical findings with the Veteran's lay assertions of bilateral lower extremity disability. While the Veteran believes he has a current bilateral lower extremity disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and skill to diagnose physical disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board gives greater weight to the objective medical evidence in this case that did not find bilateral lower extremity radiculopathy, neuropathy, or other disability. Further, as to the issue of whether there is any functional impairment of the bilateral lower extremities due to symptoms such as pain even in the absence of a diagnosis, the Board gives more probative weight to the competent medical evidence as described herein which is based on review of the record and examination of the Veteran. As the Veteran does not have a diagnosis of bilateral lower extremity disability or functional impairment of the bilateral lower extremities due to pain, there is no current disability, and the first element of service connection has not been met. Therefore, service connection must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for hypertension and OSA are remanded. Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). The Veteran is claiming that he has hypertension and OSA related to intermediate obesity resulting from his service-connected psychiatric disability. VA has obtained opinions addressing whether hypertension and OSA were directly caused by obesity. See January 2020 medical opinion. However, the January 2020 medical opinion fails to address the question of aggravation. Accordingly, the opinion is inadequate and is returned. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Return the claims file to the examiner that conducted the January 2020 VA examination, if available, for an addendum opinion to assess the nature and etiology of the Veteran's hypertension and OSA. Make the claims file available to the examiner for review of the case. If the January 2020 VA examiner is not available, the claims file must be available to another appropriate health care provider for the requested opinion. The claims folder and a copy of this remand must be made available to the examiner. The examiner should address whether is it at least as likely as not (i.e., approximately a 50 percent probability or greater) that service-connected bipolar disorder with posttraumatic stress disorder (PTSD) aggravated OSA, to include as resulting from obesity as an intermediate step caused by medications taken for the service-connected bipolar disorder and PTSD. If the examiner finds aggravation, she or he should indicate the approximate degree of disability or baseline before the onset of the aggravation to the extent possible. The examiner is advised that VA does not recognize obesity as a stand-alone disability. However, indirect secondary service connection can be granted with obesity acting as an intermediate step. Indirect secondary service connection is warranted where obesity aggravates the claimed disability. Walsh v. Wilkie, 32 Vet. App. 300 (U.S. 2020). A complete rationale for any opinion expressed must be provided. 2. After completion of the above directives and any other necessary action, readjudicate the claim K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.