Citation Nr: 21016170 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-24 016 DATE: March 22, 2021 ORDER Entitlement to service connection for ulcerative colitis is denied. FINDING OF FACT The Veteran's ulcerative colitis disability did not have its onset during active service, was not caused by his active service, and is not attributable to an undiagnosed Gulf War illness. CONCLUSION OF LAW The criteria for service connection for ulcerative colitis, to include as due to 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, 3.304, 3.317, 4.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1973 to February 1976, July 2001 to November 2001 and from January 2003 to August 2003, to include service Southwest Asia Theater of Operations during the Persian Gulf War. See DD 214. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge on March 2019. A transcript of the hearing is in the Veteran’s file. This matter was previously before the Board in August 2019, at which time it was remanded for a VA examination. A review of the record reveals that there has been substantial compliance with the Board’s prior remand directives as to the issue decided below. See Stegall v. West, 11 Vet. App. 265 (1998). The Board notes that a claim for diverticulitis as due to Gulf War hazards has recently been certified to the Board. This claim is not yet ripe for adjudication because the Veteran has requested a BVA hearing regarding this claim and the hearing request remains pending. Entitlement to service connection for ulcerative colitis The Veteran claims service connection for ulcerative colitis which he believes is related to his service during the Gulf War. 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). Furthermore, in determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. For those who served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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. 38 C.F.R. § 3.317(a)(1)(i). For purposes of 38 C.F.R. § 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following or any combination of the following: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 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. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A "medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom 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). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be 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 this case, the Veteran served in Southwest Asia during the Persian Gulf War, however, the preponderance of the evidence weighs against the claim for establishing presumptive service connection under 38 C.F.R. § 3.317. The Veteran's service treatment records (STRs) during his active period are silent for any complaints, symptoms, treatment, or diagnosis for ulcerative colitis. VA treatment records demonstrate in June 2004, the Veteran called a VA facility with complaints of abdominal cramps and diarrhea. He presented to the facility the next day, and reported a history of left sided flank pain radiating to the testicles, that lasted about 5 days, and 2 bowel moments a day for the past week or so, with small amounts of fresh blood. The Veteran later had a sigmoidoscopy followed by a colonoscopy and began to take medication for ulcerative colitis. Treatment records dated prior to the encounter in June 2004, make no mention of any abdominal, diarrhea, or bloody stool complaints. The Veteran was afforded an Intestinal Conditions VA examination in May 2013. The examiner noted the diagnosed condition of ulcerative colitis from 2004 and stated, “presumptive for Gulf War environmental hazard exposure”. The Board notes, however, ulcerative colitis does not come within the definition of presumptive disease under 38 C.F.R. § 3.317. The Veteran testified at the March 2019 Board hearing that he experienced abdominal pain during his 2003 deployment. The Veteran claims to have self-treated with over-the-counter medication, but his symptoms became more severe when he came home. In a January 2020 VA medical opinion, the examiner noted that he reviewed and considered the Veteran’s testimony, however, STRs did not reveal symptoms or complaints related to the claimed disability. The examiner noted the June 2004 GI consult showed an onset of new symptoms 2 weeks prior to the consult, which indicate the symptoms started in May 2004. This does not support the Veteran’s testimony that the onset of his symptoms was in 2003, during active service. The examiner found the Veteran’s ulcerative colitis was less likely than not incurred in or caused by an in-service disease or injury during service. The Veteran was afforded a Gulf War General Medical Examination in April 2020 in connection with his claim for diverticulitis. The examiner noted intestinal conditions but found there was no undiagnosed illnesses or additional signs or symptoms that could represent an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. The Veteran contends that his ulcerative colitis is due to his service in the Gulf War and should qualify as an undiagnosed illness. There is no dispute that during the appeal period the Veteran was diagnosed to have ulcerative colitis. See May 2013 Intestinal Conditions VA Examination Report. However, because ulcerative colitis is a known clinical diagnosis, it does not fall within the purview of the presumptive provisions of 38 C.F.R. § 3.317 for undiagnosed illness in veterans who served in the Persian Gulf. The Veteran submitted a Gulf War pamphlet and circled irritable bowel syndrome. The Board is cognizant of the Veteran’s argument that his ulcerative colitis is related to irritable bowel syndrome. However, the Veteran has not been diagnosed to have irritable bowel syndrome at any time during the appeal period. In his December 2013 Notice of Disagreement, he also stated that inflammatory bowel (IBD) disease is the same as Crohn’s disease (CD) and ulcerative colitis, and therefore should be presumptive to Southwest Asia service. The Board notes, however, that IBD and CD are diagnosed conditions that are not under the presumptive provisions of 38 C.F.R. § 3.317. Furthermore, his symptoms are attributable to a known diagnosis. At the April 2020 Intestinal Conditions VA examination, the examiner noted that the Veteran’s diarrhea is secondary to his ulcerative colitis. As the Veteran's ulcerative colitis is diagnosable and diagnosed illness, the presumptions of service connection for an undiagnosed and medically unexplained chronic multisymptom illness due to service in the Persian Gulf War (Kuwait) are not applicable. Nevertheless, service connection for ulcerative colitis may still be granted if it is shown to be directly related to service. While the Veteran claims his condition began in service, the January 2020 VA examiner noted that the Veteran’s symptoms had an onset of May 2004, not during an active period of service. The Board places great probative weight on the January 2020 VA medical opinion. This opinion is adequate because the examiner reviewed the entire medical history file, considered the Veteran's lay statements, and provided a conclusion based on an accurate factual basis with supporting rationale. The Board has considered the Veteran’s lay statements that his condition began in service. In his December 2013 Notice of Disagreement, he reports he was employed by the Army from 2001 to 2007. However, the Veteran’s last period of active service ended in August 2003. See DD 214. The Veteran is competent to report symptoms of abdominal pain because this requires only personal knowledge as it comes to him through his senses. However, the more credible medical evidence shows the onset of his symptoms in 2004. These records demonstrate a willingness to report medical symptoms, and the absence of any relevant complaints until June 2004, is strong evidence that these symptoms were not present until proximate to the June 2004 encounter. Additionally, at the encounter the Veteran dated the onset of these symptoms to at most 2 weeks earlier. Further, he is not competent to offer an opinion as to the etiology of his ulcerative colitis due to the medical complexity of the matter involved. The Veteran is not shown to possess the medical training and expertise to self-diagnose the onset or etiology of ulcerative colitis. Here, the Board attaches greater probative weight to the clinical findings than to the Veteran’s statements. Thus, while the Veteran has been diagnosed with ulcerative colitis, the most probative medical opinion on record finds that his ulcerative colitis is less likely than not related to the Veteran’s service. (Continued on the next page)   In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, Associate 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.