Citation Nr: 21013095 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 19-05 477 DATE: March 8, 2021 ORDER Service connection for irritable bowel syndrome (IBS) is denied. Service connection for residuals of a traumatic brain injury (TBI) is granted. REMANDED Entitlement to service connection for residuals of upper body burns is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have a current diagnosis of IBS. 2. The Veteran’s current residuals of a TBI are etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for IBS have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). The criteria for service connection for residuals of a TBI have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served in the Iowa Army National Guard from September 2007 to December 2010, with active duty from November 2007 to April 2008 and from October 2008 to October 2009, the latter period including service in Southwest Asia. Thereafter, the Veteran served in the United States Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). In September 2019, the Board, as pertinent here, denied service connection for GERD and remanded the claims for service connection for TBI, upper body burns, and IBS. The Veteran appealed the Board’s September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMPR), remanding the issue of entitlement to service connection for GERD, and dismissing the appeal as to other claims. The JMPR represents agreement between the parties (the Veteran and VA Office of General Counsel) that the Board erred by relying on an inadequate medical opinion regarding the etiology of the Veteran’s GERD, specifically that the opinion neither explains the etiology of problems in the lower esophageal sphincter that caused his GERD nor why those problems are related to service. Consistent with the terms of the September 2020 JMPR and Court Order, the Veteran’s claim of entitlement to service connection for GERD is remanded for an addendum medical opinion and such other development as set forth below. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness that became manifest either 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, 2016, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). Here, however, regarding the claims adjudicated herein, the record does not reflect objective indications of IBS. Therefore, these provisions are not for application. In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. IBS The Veteran seeks service connection for IBS as related to his service in the Southwest Asia Theater of Operations. At the outset, the Board must determine whether the Veteran meets the criteria for the threshold element of a current disability. In other words, the Board must determine if the Veteran has been diagnosed with IBS since the date of claim. See Shedden, 381 F.3d at 1167. The Veteran’s post-service treatment records and Social Security records for the period on appeal are silent as to a diagnosis or treatment of IBS. Notably, while identifying diarrhea as one of the symptoms of IBS, VA outpatient records reflect that the Veteran denied having diarrhea during contemporaneous Ebola virus screenings. See VA treatment records dated January 2016 and January 2017. The Veteran was afforded a VA intestinal conditions examination in April 2016. The examiner noted that while the Veteran’s reported having diarrhea with three soft bowel movements daily, he denied abdominal pains, bloody or mucoid stools, weight loss, loss of appetite, hematemesis, melena, and hematochezia. The examiner noted that the Veteran’s post-service VA and private treatment records reflected no diagnosis of or treatment for IBS. The VA examiner opined that the Veteran has never had an intestinal disorder. See April 2016 VA Intestinal Disorders examination report. This medical opinion is competent, credible and probative: It was authored by a licensed physician who examined the Veteran and reviewed the claims file, and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatments. The opinion was also considered the Veteran’s lay. Furthermore, the opinion is consistent with the medical evidence of record and contains clear conclusions with supporting data connected by a reasoned medical explanation. See Nieves-Rodriguez, supra. Notably, there are no medical opinions or other competent medical evidence of record that weighs against the April 2016 VA opinion. Accordingly, the Board finds the April 2016 VA opinion to be highly probative, competent, and persuasive medical evidence in this case. The Board observes that the Veteran’s outpatient treatment records reflect that he denied having diarrhea both before and after the April 2016 VA examination. Furthermore, in instances where a VA clinician inquired about the Veteran’s gastrointestinal health during outpatient appointments, diarrhea was not mentioned once throughout the appeal period. In this regard, except for one instance of increased acid reflux, the Veteran’s gastrointestinal condition was consistently described as being negative for nausea and vomiting, and the Veteran having good appetite. See, e.g., VA treatment records dated November 2017, February 2018, and November 2018. The Board assigns more probative value to the Veteran’s treatment records that included lay history made for treatment purposes than to subsequent statements made for compensation purposes. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Finally, VA treatment records reflect that in February 2018 the Veteran requested a colonoscopy due to symptoms like those reported during the VA examination and, following an evaluation, a colonoscopy was scheduled. However, the treatment records further show that the Veteran canceled the colonoscopy in July 2018 and, to date, the record does not reflect that he has requested that the procedure be rescheduled. In the absence of a diagnosed current disability, it follows that service connection for IBS cannot be granted as the threshold element of the claim has not been met. Shedden, supra. In analyzing this claim, the Board also considered the Veteran’s contention as to a current disability. While the Veteran may genuinely believe that he has IBS, the Board finds that the question as to whether the Veteran has IBS requires substantiation through diagnostic findings, requiring specialized training for a determination, and is not susceptible of lay opinion. See Barr, supra. As such, the Veteran is not competent to diagnose himself with IBS, and his lay diagnosis carries no weight. There being no competent evidence that the Veteran has been diagnosed with the claimed disability, analysis of the remaining elements of a service connection claim is unnecessary. Based on this body of evidence, the appeal must be denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application here. Residuals of a TBI The Veteran contends that he has current residuals of a TBI that was sustained during service. As an initial matter, the Veteran has a current diagnosis of residuals of a TBI. See March 2016 VA TBI examination report; December 2018 VA TBI evaluation note. Next, the Board finds that the Veteran experienced blast exposures and other brain injuries during service. As the Board stated in its September 2019 Remand directives, the Veteran is a combat veteran and therefore additional weight is given to the injuries that occur in service that are consistent with his service. 38 C.F.R. § 3.304(d). He has consistently alleged that he suffered head injuries from IED explosions and from swerving a truck into a kitchen when attempting to avoid what he believed were IEDs. See October 2015 private treatment record; February 2016 statements; March 2016 VA TBI examination report; December 2018 VA TBI evaluation note; June 2019 VA treatment note. These claims are credible, as he has consistently recounted to medical providers the same stories whether it was in pursuant of a claim for service connection for treatment. Furthermore, the Bord notes that he is in receipt of service connection for PTSD with these events serving as the stressors. See July 2016 rating decision; April 2016 VA PTSD examination report. As such, the weight of the evidence supports a finding that the Veteran experienced multiple blast exposures and brain injuries during service. Turning to the issue of etiology, the March 2016 VA TBI examiner noted the Veteran’s numerous reports of exposure to IED blasts, resulting in a loss of consciousness on two occasions. The VA examiner further noted that the Veteran’s service treatment records did not show any record of TBI or blast exposure. Despite that, the VA examiner opined that the current residuals of TBI are at least as likely as not related to service, explaining that the Veteran’s current disability is consistent with the circumstances, conditions, or hardships of his military service. Furthermore, the Board notes that the Veteran was diagnosed with a TBI by VA for treatment purposes in December 2018, based solely on his reports of brain injuries during service. See December 2018 VA TBI evaluation note. There is no contrary adequate opinion of record, nor is there sufficient basis for the Board to reject these supportive opinions and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). For this reason, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for residuals of a TBI have been met. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Residuals of Upper Body Burns Although the Veteran has claimed he was hospitalized during service, records of hospitalization are not included in the service treatment records. See September 2019 Board remand. The Board finds that clarification is necessary to ensure that needed development identified in the Board’s September 2019 remand is completed by VA. Specifically, the Veteran asserted in February 2016 that he was treated at a hospital in Baghdad for burns after being injured in an IED explosion in 2008. See February 2016Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault (VA Form 321-0781a). Additionally, the Veteran has asserted that a separate IED explosion in 2008 caused injuries that required treatment at a medical facility in Kuwait. See March 2016 VA TBI examination report. Although an April 2020 VA memorandum reflects the intention of VA to request the Veteran’s complete National Guard records that “could contain evidence of the TBI and hospitalization that he has reported,” the record does not reflect that VA specifically requested records related to the reported hospitalization in Baghdad and treatment in Kuwait in 2008; rather, VA made a general request for the Veteran’s National Guard treatment records. Further, a September 2020 reply from the Army Records Processing Center (ARPC) states that the records provided are the result of a search “within the time frame permitted,” although the record does not reflect the referenced time period. Therefore, the Board is unable to determine whether the STRs provided by the ARPC are responsive to VA’s request. Accordingly, on remand, VA must attempt to obtain all records of the Veteran’s in-service treatment at medical facilities in Baghdad and Kuwait in 2008, if available. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see Sullivan v. McDonald, 815 F.3d 786, 791 (2016). In a February 2016 statement, the Veteran indicated that he was treated for burns in Iraq after being injured in an IED explosion in 2008. This is an allegation of a combat injury. The Board acknowledges that the Veteran’s post-service treatment records and Social Security Administration records for the period on appeal are silent as to a diagnosis or treatment of upper body burns or residuals thereof. In addition, the April 2016 VA Gulf War General Medical Examination report indicated that the Veteran had three moles on his torso but identified no scars or other evidence of burns. See April 2016 VA Gulf War General Medical Examination report. However, the Veteran has not been afforded a VA examination that specifically addresses the reported upper body burns and any residuals thereof. In light of this being a potential combat injury and the possibility of missing service treatment records, the Board finds that remand is warranted to obtain a VA skin conditions examination to specifically assess whether the Veteran has any current residuals of upper body burns sustained during service. GERD As noted above, the September 2020 JMPR remanded the issue of entitlement to service connection for GERD, and directed the Board to obtain a new medical opinion as to the nature and etiology of the Veteran’s GERD. Therefore, consistent with the terms of the September 2020 JMPR, the issue of entitlement to service connection for GERD is remanded for the purpose of obtaining the specified medical opinion. The matters are REMANDED for the following action: 1. Contact all relevant agencies and attempt to locate all outstanding service treatment records, including those of treatment at hospitals or other medical facilities in Baghdad, Iraq and Kuwait in 2008, if any. All records obtained must be uploaded to the electronic claims file. If the requested records cannot be found, or are otherwise unavailable, VA shall notify the Veteran and his representative in writing and make a formal finding of unavailability and associate the finding with the electronic claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current residuals of upper body burns. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. After a complete review of the claims file, the examiner is asked to provide the following opinions: a. Identify any current residuals of upper body burns. b. For each identified residual, whether such residual is at least as likely as not (50 percent or greater probability) related to or caused by the reported burns sustained during service. The examiner should provide a complete rationale for each opinion. 3. Obtain an addendum opinion from the April 2016 VA examiner, or a suitable substitute, as to the nature and etiology of the Veteran’s currently diagnosed GERD. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed GERD initially manifested during service or is otherwise etiologically related to service, including the Veteran’s service in Southwest Asia. *In so doing, the examiner shall address whether or not the Veteran has problems in the lower esophageal sphincter that allow reflux of gastric contents into the esophagus, as discussed in the April 21, 2016 VA medical opinion (see VBMS entry with document type “C&P Exam,” receipt date 04/21/2016, at page 2 of 10 (Section 7, Remarks)), and the etiology of any such problems, including their relationship to the Veteran’s service. The examiner should note that the April 21, 2016 VA opinion regarding GERD has been determined to be inadequate for adjudication purposes, which is the basis for remand of this claim. The examiner should provide a complete rationale for each opinion. 4. Then, readjudicate the remanded claims. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.