Citation Nr: 21013904 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-26 672 DATE: March 10, 2021 ORDER Entitlement to service connection for a gastrointestinal disorder, to include as a result of an undiagnosed Gulf War illness, is denied. Entitlement to service connection for a disability manifested by chronic pain throughout the body, to include as a result of an undiagnosed Gulf War illness, is denied. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran does not have an undiagnosed illness, or a medically unexplained chronic multi-symptom illness manifested by gastrointestinal symptomatology; nor does the evidence demonstrate that the Veteran has a current diagnosis for a gastrointestinal disability. 2. The preponderance of the evidence demonstrates that the Veteran does not have an undiagnosed illness, or a medically unexplained chronic multi-symptom illness manifested by chronic body-wide pain; nor does the evidence demonstrate that the Veteran has a current diagnosis for chronic body-wide pain. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal disorder, to include as a result of an undiagnosed Gulf War illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for a disability manifested by chronic pain throughout the body, to include as a result of an undiagnosed Gulf War illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1973 to August 1977, from November 1990 to May 1991, and from February 2003 to July 2004. He received the Southwest Asia service medal. The Board remanded these issues in September 2019, directing that further medical examinations and opinions were necessary prior to adjudicating these claims. In September 2020, the Board again remanded these issues, finding that the development that occurred pursuant to the September 2019 decision was inadequate and incomplete. The required development has been concluded, and the case now returns to the Board for adjudication. Service Connection 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, 1131. 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 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). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, because the Veteran served in Southwest Asia during the applicable time period, service connection may also be established on a presumptive basis for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability 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 no later than December 31, 2021, 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). 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. 38 C.F.R. § 3.317(e)(1). The “Southwest Asia theater of operations” refers to Iraq, Kuwait, 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 Persian Gulf War includes the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C. § 101(33); 38 C.F.R. § 3.3(i). Here, the Veteran qualifies as a Persian Gulf War Veteran within the meaning of the applicable statute and regulation. A 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 diseases). 38 C.F.R. § 3.317(a)(2)(i). For purposes of this presumption, the term “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, such as diabetes and multiple sclerosis, will not be considered “medically unexplained.” 38 C.F.R. § 3.317(a)(2)(ii). Signs or symptoms that may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (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). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period are considered chronic. The six-month period of chronicity is 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 the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are considered competent to report objective signs of illness. Id. Compensation shall not be paid under 38 C.F.R. § 3.317 for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for a gastrointestinal disorder, to include as a result of an undiagnosed Gulf War illness The Veteran contends that he has a gastrointestinal disorder related to his active service, to include as a result of exposure in the Southwest Asia theater of operations. The Board finds there is insufficient evidence to show the Veteran has an undiagnosed or unexplained multi-symptoms Gulf-War illness manifested by a gastrointestinal disability. In his post-deployment questionnaire in August 2004, the Veteran did not report any gastrointestinal issues, nor was he seen at sick call during deployment. He did mark that he developed medical or dental issues during deployment, but there is no further indication in any medical record of such issues. Private medical records for his civilian employment do not indicate that the Veteran experienced any gastrointestinal issues. On VA examination in October 2010, the Veteran stated he experienced nausea, but denied any further gastrointestinal symptoms. At a Gulf War General Medical examination in March 2013, the examiner determined that the Veteran had no symptoms or abnormal findings or complaints that were consistent with Gulf War syndrome. The examiner also acknowledged that the Veteran did not report any additional signs and/or symptoms not addressed through the completion of examinations already identified. Pursuant to the Board remands discussed above, an additional VA medical opinion was obtained in September 2020. At that time, the examiner opined that it is less likely than not that the Veteran has a current active diagnosis of a gastrointestinal disability caused by the Gulf War environmental hazards during service. There is no current report of a gastrointestinal disability. The most likely cause of the former complaint of nausea is related to heavy alcohol consumption at the time. The March 2013 and September 2020 examiners’ opinions are probative, because they were based on an accurate medical history and provided explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds the medical evidence does not support a diagnosis of a gastrointestinal disability, nor does it support a diagnosis of undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a diagnosable chronic multi-symptom illness with a partially explained etiology. VA treatment records dated in November 2016 indicate that the Veteran has been prescribed opioids due to pain. Listed among its side effects is nausea. While the Veteran believes that his gastrointestinal symptoms are related to service in the Persian Gulf War, as a lay person, he has not shown that he has specialized training sufficient to be deemed competent to render such an opinion with regard to this condition. This issue is medically complex and requires specialized medical education. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make this determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the clinical evidence of record, including the VA examiners findings and opinions. Additionally, there is no evidence, nor has the Veteran argued, that his claimed gastrointestinal condition is otherwise related to his active service. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 55-57. Accordingly, service connection is not warranted for a gastrointestinal disability. Service connection for a disability manifested by chronic pain throughout the body, to include as a result of an undiagnosed Gulf War illness The Veteran contends that he has chronic body-wide pain as a result of exposure in the Southwest Asia theater of operations. The Board finds there is insufficient evidence to show the Veteran has an undiagnosed or unexplained multi-symptoms Gulf-War illness manifested by chronic body-wide pain. In his post-deployment questionnaire in August 2004, he did not report any body pain issues, nor was he seen at sick call during deployment. Private medical records for his civilian employment do not indicate that he has experienced any undiagnosed pain issues. On VA examination in October 2010, the Veteran reported lower joint pain, but did not have a diagnosed clinical condition. VA treatment records from November 2016 indicate that the Veteran has been prescribed opioids due to joint pain. Pursuant to the Board remands discussed above, an additional VA medical opinion was obtained in September 2020. In that opinion, the examiner found it is less likely than not that the Veteran has a diagnosis of body wide pain incurred in, or caused by, the Gulf War environmental exposure during service. According to the examiner, the Veteran’s spine and several joints were found to have physical (and traumatic) causes, and radiculopathy, as well as peripheral neuropathy, were also shown to contribute to his pain. The examiner explained that there had not been adequate evaluation of other areas to rule out etiologies other than environmental exposures in the Gulf War theater of operations. The September 2020 examiner’s opinion is probative, as it was based on an accurate medical history and provided explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The medical evidence does not support a diagnosis of a chronic body-wide pain disability, nor does it support a diagnosis of undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a diagnosable chronic multi-symptom illness with a partially explained etiology. While the Veteran believes that his pain symptoms are related to service in the Persian Gulf War, as a lay person, he has not shown that he has specialized training sufficient to be deemed competent to render such an opinion with regard to this condition. This issue is medically complex and requires specialized medical education. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make this determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the clinical evidence of record, including the VA examiners’ findings and opinions. Additionally, there is no evidence, nor has the Veteran argued, that his claimed body-wide pain condition is otherwise related to his active service. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 55-57. Accordingly, service connection is not warranted for a disability manifested by chronic pain throughout the body, to include as a result of an undiagnosed Gulf War illness. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.