Citation Nr: 21022250 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 09-24 650 DATE: April 15, 2021 ORDER Entitlement to service connection for a disorder manifested by heartburn and occasional vomiting, claimed as gastroesophageal reflux disease (GERD) and hiatal hernia, to include as secondary to post-traumatic stress disorder (PTSD), is denied. Entitlement to service connection fora disorder manifested by constipation, diarrhea and abdominal cramping, claimed as irritable bowel syndrome (IBS), to include as secondary to PTSD, is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of GERD, or hiatal hernia, and the symptoms do not manifest to the level of creating a significant functional impairment. 2. The Veteran does not have a current diagnosis of IBS, and the symptoms do not manifest to the level of creating a significant functional impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disorder manifested by heartburn and occasional vomiting, claimed as gastroesophageal reflux disease (GERD) and hiatal hernia, to include as secondary to post-traumatic stress disorder (PTSD), have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a disorder manifested by constipation, diarrhea and abdominal cramping, claimed as irritable bowel syndrome (IBS), to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1968 to April 1970. Theis matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board issued a decision denying, in pertinent part, the Veteran’s service connection claims for IBS, GERD and hiatal hernia, to include as secondary to PTSD. The Veteran appealed the December 2017 Board decision to the United States Court of Appeals for Veteran’s Claims (Court). By a September 2018 Order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board’s December 2017 decision, in relevant part, and remanded the matter for further action consistent with the JMPR. In February 2019, the Board remanded this matter for further development. Most recently in October 2020, the Board remanded this matter for further development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Appellant nor his representative has raised any issues with the duty to notify or duty to assist regarding the claim denied above. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection 1. Entitlement to service connection for a disorder manifested by heartburn and occasional vomiting, claimed as gastroesophageal reflux disease (GERD) and hiatal hernia, to include as secondary to post-traumatic stress disorder (PTSD) 2. Entitlement to service connection fora disorder manifested by constipation, diarrhea and abdominal cramping, claimed as irritable bowel syndrome (IBS), to include as secondary to PTSD The Veteran seeks entitlement to service connection for a disorder manifested by heartburn and occasional vomiting, claimed as GERD and hiatal hernia, and a disorder manifested by constipation, diarrhea, and abdominal cramping, claimed as IBS. He asserted his disorders are due to his time in service, or in the alternative, are secondary to his PTSD, to include medications prescribed for his PTSD. Direct Service Connection 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 question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of gastroesophageal reflux disease (GERD), hiatal hernia, or irritable bowel syndrome (IBS) (GI conditions) and has not had any diagnosed GI conditions at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity,” and determined that the Veteran does not have a current disability. The Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court stated "[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id. Here, the Veteran’s claimed conditions are analogous to Saunders because while the conditions are not musculoskeletal, the Veteran does not have a current diagnosis of any GI condition, but he has intermittent symptoms of discomfort. However, the Veteran’s symptoms do not manifest to the level that creates a significant functional impairment, and there is no evidence that his symptoms affect his earning capacity, and thus do not qualify as a disability. The Veteran’s service treatment records as well as post-service treatment records, are negative for findings of any chronic GI condition including but not limited to GERD or IBS. In May 2008, the Veteran reported that he had frequent diarrhea. In a January 2012 VA examination, the Veteran reported that he has diarrhea, heartburn three to four times per week, and frequent episodes of bowel disturbance with abdominal distress. The examiner stated that although the Veteran had subjective symptoms of episodic bouts of diarrhea and heartburn, he had not been diagnosed with GERD, a hiatal hernia, or IBS. The Veteran was afforded a VA examination in November 2019. During the November 2019 VA examination, the Veteran reported again reported subjective symptoms, including abdominal distention occasionally, vomiting once that year, and constipation every now and again. He reported occasionally he would get a bitter taste in his mouth when he swallowed a pill, and there would be a very nasty taste. He reported he did not currently have diarrhea, but most often had constipation about once every week and one half, and sometimes it would take two days to have a bowel movement; on average he has a bowel movement once per day or every two days. The Veteran noted that when he is around a lot of people his stomach gets upset and he has a nervous feeling. The examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition because the Veteran does not have GERD, acid reflux, hiatal hernia or IBS. No additional rationale was provided other than a notation that there were no gastrointestinal problems included on his VA problem list. In February 2021, VA secured a VA addendum opinion. The examiner opined that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner stated that, According to a recent VA [November 2019] exam regarding vague GI complaints of intermittent heartburn and intermittent loose stools, the examiner could not identify evidence consistent with GERD or IBS. Since these symptoms reportedly were mild and intermittent, there would be no significant functional impairment... STRs were silent for any type of chronic GI condition such as GERD or IBS. While the Veteran believes he has a current diagnosis of a GI condition, he is not competent to provide a diagnosis in this case. The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The Board has considered the Veteran’s lay testimony, service treatment records, post-service treatment records, the January 2012, November 2019, and February 2021 VA examinations and/or medical opinions and concludes that the Veteran’s claimed GI Conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. First, there is no evidence in the record that the Veteran has a diagnosed GI condition. The examinations have clearly indicated that while the Veteran has had symptoms that can be attributable to a GI condition, they do not manifest to the degree required to be diagnosed with the condition. Second, the claimed GI condition’s do not manifest to a level that creates a significant functional impairment. The Veteran has indicated that his GI symptoms are intermittent, and the examiners have defined these symptoms as mild. The Board is sympathetic, that the Veteran is seeking a diagnosis for his condition. However, the February 2021 examiner has explained that his symptoms are mild and intermittent, and the examiner considered various GI diagnosis, and determined that the Veteran’s symptoms do not meet the current clinical criteria of IBS or GERD. The Board’s conclusion is not based on the absence of consistent treatment, but on the fact that the various examiner’s have not been able to determine a diagnosis, due to the mild and intermittent nature of the Veteran’s symptoms. Therefore, the Board affords more weight to the evidence provided by the February 2021 VA addendum opinion because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the Veteran has not provided any contradicting evidence that he has received a diagnosis of a GI condition or that his GI symptoms manifest to a level that creates a significant functional impairment that affects his earning capacity. In summary, service connection is unwarranted on a direct basis. Secondary Service Connection In the alternative, the Veteran contends that his GI conditions are secondary to his service-connected post-traumatic stress disorder (PTSD). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability. Here, the Veteran does not have a current diagnosis of any GI condition, thus service connection on a secondary basis including PTSD is not warranted. (Continued on the next page)   In summary, the probative evidence of record demonstrates that that the Veteran does not have a current diagnosis of any GI condition, and his symptoms do not manifest to a level that creates a significant functional impairment that affects his earning capacity. Thus, service connection on a direct basis is not warranted. Additionally, the Veteran is not entitled to service connection on a secondary basis for PTSD because he does not have a current diagnosed GI condition. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist 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.