Citation Nr: 21022815 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-60 621 DATE: April 19, 2021 ORDER Service connection for irritable bowel syndrome (IBS) is granted. REMANDED Entitlement to service connection for gastroesophageal disease (GERD), as due to an undiagnosed illness. Entitlement to service connection for fatigue, as due to an undiagnosed illness. Entitlement to service connection for joint pain, as due to an undiagnosed illness. Entitlement to service connection for loss of short-term memory, as due to an undiagnosed illness. FINDING OF FACT The Veteran’s diagnosed IBS manifested to a degree of at least ten percent and chronically persisted for at least six months after a period of active duty service in the Gulf War. CONCLUSION OF LAW The criteria for service connection for IBS due to Gulf War service are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.317, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1989 to February 1992, to include service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2015 by a Department of Veterans Affairs (VA) Regional Office. In March 2021, the Veteran and his wife testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the record. Service Connection - IBS Service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1131. Service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for a chronic disability resulting from an undiagnosed illness which manifests either during active service in the Southwest Asia Theatre of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. 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 (d)(1). The Southwest Asia Theatre 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)(2). A “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i). Objective indications of a 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. 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. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317 (a)(2-5). Irritable bowel syndrome is rated as irritable colon syndrome. A zero percent disability rating is warranted for mild symptomatology with disturbances of bowel function and occasional episodes of abdominal cramping. A 10 percent disability rating is warranted for moderate symptomatology with frequent episodes of bowel disturbance and abdominal distress. See 38 C.F.R. § 4.114, Diagnostic Code 7319. Compensation shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness 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 during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. See 38 C.F.R. § 3.317 (c). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service personnel records, to include his DD Form 214, show that he served in Southwest Asia during the Persian Gulf War and, as such, qualifies as a “Persian Gulf Veteran” for the purposes of presumptive service connection. The Veteran also has a present diagnosis of IBS. He underwent a VA examination in May 2015, at which time the examiner confirmed the diagnosis. As such, the Veteran satisfies the present diagnosis requirement of the service connection analysis. The Board finds that the Veteran’s IBS has manifested to a degree of 10 percent or more since discharge from active duty. At the May 2015 VA examination, the examiner found that the Veteran’s IBS manifested as frequent bathroom use, up to 4 or 5 bowel movements a day, diarrhea, with episodes of bowel disturbance with abdominal distress. The Board finds that the Veteran’s IBS symptoms approximate moderate symptomatology with frequent episodes of bowel disturbance and abdominal distress. Therefore, the Veteran’s IBS has manifested to a degree of at least ten percent. 38 C.F.R. § 4.114, Diagnostic Code 7319. Accordingly, there is a presumption of a nexus between the Veteran’s current IBS and his Gulf War service. Medical evidence of record does not demonstrate affirmative evidence of an alternative etiology for the disability that would rebut the presumption of service connection. After resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s IBS is presumptively connected to his service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. REASONS FOR REMAND The Board finds that the May 2015 VA Gulf War examination is inadequate for purposes of the Veteran’s remaining claims, and a new examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA attempts to provide an examination, it must be adequate for adjudication purposes). Regarding the Veteran’s GERD claim, the May 2015 examiner concluded generally that he found no diagnosed illness during the examination that did not have an established, clear and specific etiology. However, despite confirming a diagnosis of GERD, the examiner provided no opinion regarding etiology of the condition. As for the remaining claims, for fatigue, joint pain and short-term memory loss, the May 2015 examiner found only that there were symptoms regarding these conditions, but no diagnosis. The Board finds the May 2015 examination is lacking in detail and thus is inadequate, as the examiner failed to consider the Veteran’s reports that these conditions had their onset in service and had existed since that time. Moreover, the 2015 examiner did not explain whether the Veteran’s disability pattern for these conditions constituted a (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis. Instead, the examiner simply and generically stated that nothing noted in the examination represented an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. Given that the relevant VA opinion was internally inconsistent, was not fully responsive to the pertinent questions for consideration of the provisions under 38 C.F.R. § 3.317, and that the examiner failed to consider the Veteran’s lay statements, a remand for an additional VA Gulf War examination is warranted. Id. Finally, the Veteran testified at the March 2021 hearing that all of his post-service medical care was through private providers. On remand, he should be given the opportunity to provide such medical records to VA in support of his claims. The matters are REMANDED for the following action: 1. Provide the Veteran with another opportunity to identify any outstanding private treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records, should be obtained. 2. Schedule the Veteran for VA a Gulf War Illness examination to determine the nature and origin of his GERD, as well as claimed chronic fatigue, short-term memory loss, and joint pain. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. a) The examiner is asked to detail all reported symptoms of GERD, as well as symptoms related to the Veteran’s claimed separate disabilities manifested by fatigue, by joint pain, and by memory loss. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all such symptoms. b) The examiner should specifically state whether the Veteran’s claimed disabilities manifested by fatigue, joint pain and memory loss are attributed to known clinical diagnoses. c) If any symptoms associated with the claimed disabilities manifested by fatigue, joint pain and memory loss are not determined to be associated with known clinical diagnoses, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness or related to a medically unexplained chronic multisymptom illness as defined in 38 C.F.R. § 3.317 (a). In this regard, the examiner should consider the Veteran’s consistent report of progressive symptoms since service and assess whether such evidence indicates objective indications of a qualifying chronic disability. d) Regarding the Veteran’s diagnosed GERD, and if the Veteran has known clinical diagnoses related to his claimed fatigue, joint pain and memory loss, for each confirmed diagnosis the examiner must opine whether it is at least as likely as not (that is, a 50 percent probability or greater) that such is related to an in-service injury, event, or disease, including the Veteran’s in-service exposure to environmental hazards coincident with his service in Southwest Asia. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.