Citation Nr: 21023337 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-37 763 DATE: April 20, 2021 ORDER 1. Entitlement to service connection for a gastrointestinal disability, claimed as gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS), to include as due to exposure to environmental hazards in the Southwest Asia Theatre of Operations, is denied. 2. Entitlement to service connection for a deviated septum, claimed as residuals of a broken nose, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s gastrointestinal disability began during active service or is otherwise related to an in-service injury or disease, to include exposure to environmental hazards in the Southwest Asia Theatre of Operations. 2. The preponderance of the evidence is against finding that the deviated septum began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). 2. The criteria for service connection for a deviated septum have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2005 to July 2009 with service in Southwest Asia Theatre of operations during the Persian Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in September 2019. A transcript of the hearing has been associated with the Veteran’s VA claims file. In a January 2020 decision, the Board denied the Veteran’s claim for service connection for bilateral hearing loss and remanded the claim for a gastrointestinal disability and deviated nasal septum. The Veteran appealed that part of the Board’s decision that denied entitlement to service connection for bilateral hearing loss to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in November 2020, the Veteran’s representative and a representative of VA’s Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion). In the Joint Motion, the parties indicated that a remand was necessary because the Board erred by not ensuring that the VA complied with its duty to assist under the requirements of 38 U.S.C. § 5103A(c) and 38 C.F.R. §§ 3.159(c)(2), (3). In a November 2020 Order, the Court vacated the portion of the Board’s January 2020 decision that denied service connection for bilateral hearing loss and remanded the matter for readjudication in light of the Joint Motion. Law and Regulations 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). Service connection may be warranted for a Persian Gulf War 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 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are two types of qualifying chronic disabilities: (1) an undiagnosed illness, and (2) a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. There must also be objective indications of chronic disability, which 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). A MUCMI is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome, (2) fibromyalgia, and (3) functional gastrointestinal disorders (excluding structural gastrointestinal disease). The term MUCMI 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, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). 1. Entitlement to service connection for a gastrointestinal disability The Veteran seeks service connection for a gastrointestinal disability, to include GERD and IBS. He asserts that his gastrointestinal problems are related to his service in Southeast Asia. Specifically, he testified that his issues are due to the food he ate and the unfiltered water he drank while in Iraq. In the January 2020 remand, the Board observed that a VA examiner noted the Veteran’s reported symptoms of heartburn and nausea after eating and stated that his symptoms were consistent with GERD. The examiner noted that the Veteran has never been diagnosed with IBS but, instead, was diagnosed with GERD in December 2013. The examiner ultimately opined that the Veteran’s GERD was less likely incurred in service because there was no evidence of complaints, treatment, or diagnosis of such in service. While the VA examiner noted that GERD was diagnosed in December 2013, the Board pointed out that this statement was not supported by the evidence of record, as a diagnosis of GERD was not reflected in the treatment records associated with the claims file. Instead, the evidence showed that the Veteran did, in fact, report feeling nauseated after eating in December 2013; however, the diagnosis was “h pylori” and subsequent treatment records reflect that “helicobacter pylori gastrointestinal tract infection” was listed on the Veteran’s active problem list. Because the VA examiner reported that the Veteran had been diagnosed with GERD but the treatment records diagnosed H. Pylori, the Board stated that there remains a question as to whether the Veteran’s gastrointestinal complaints are attributable to GERD, IBS, or any other disease with a clear and specific etiology. There was also a question as to whether the Veteran’s gastrointestinal complaints represent an undiagnosed illness, a functional gastrointestinal disorder, which would qualify as a diagnosable but medically unexplained chronic multi-symptom illness (MUCMI), or a diagnosable chronic multi-symptom illness with partially explained etiology. The case was subsequently remanded for a medical opinion. Pursuant to the January 2020 Board remand, the Veteran was afforded new examinations in February 2021. These reports documents that the Veteran stated that he would feel a sense of gagging and wanting to throw-up after eating. The Veteran also reported that while in Iraq, he drank unfiltered water and his stomach became upset with constant diarrhea for a few days but that he now experiences normal bowel movements. He reported that he did not recall ever being treated for H. Pylori and was never told he has gastritis or any other stomach condition. Following the examinations, the Veteran was diagnosed with GERD. In addressing the nature and etiology of the Veteran’s disability, the examiner reported that the Veteran’s GERD is “less likely than not incurred in or caused by” the Veteran’s active duty service, to include exposures in Southwest Asia because the Veteran denied having frequent indigestion or heartburn as well as stomach or intestinal trouble in his report of medical history completed in June 2009. Instead, the examiner noted that the Veteran’s upset stomach and diarrhea resolved after three days while in Iraq and that he “no longer has an upset stomach or diarrhea related to a likely viral illness or food borne illness. The examiner opined that the Veteran’s symptoms can be attributed to a known clinical diagnosis – GERD, because he experiences symptoms related to reflux or regurgitation after eating meals which is common with GERD. It was noted that he does not have any symptoms that are not attributable to this diagnosis. Because the Veteran’s symptoms have been attributed to a known diagnosis, and there is no symptomatology that is not attributable to a known diagnosis, the Gulf War presumption does not apply in this case. Nevertheless, the Veteran may be entitled to service connection on a direct basis. As discussed, the Veteran has been diagnosed with a current disability. During the hearing, the Veteran testified that he believed his GERD was caused by the food he ate and the water he drank while in Iraq. He reported having diarrhea for six or seven days after drinking unfiltered water and that his stomach “wasn’t the same” afterwards. While cognizant of the Veteran’s statements that his GERD symptoms had their onset during service and have continued to the present, the Board finds that the contemporaneous evidence of record is more reliable than the Veteran’s statements. As noted by the VA examiner, the Veteran’s in-service symptoms appear to have resolved as the Veteran denied having frequent indigestion or heartburn as well as stomach or intestinal trouble in his report of medical history completed in June 2009. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). Such statements suggest that the Veteran did not experience ongoing symptoms. If the Veteran had been experiencing such symptoms, they would have been documented at this time as the report of medical history documents the Veteran’s complaints for other issues. The Board recognizes that H. Pylori was listed among the Veteran’s active problems in outpatient treatment records. As discussed above, the July 2014 VA examiner appears to have referenced these treatment records and found that they were consistent with GERD. Following a remand for clarification, the Veteran was afforded a VA Stomach and Duodenal conditions examination in February 2021 and, while a diagnosis of Helicobacter Pylori was noted to have been rendered in July 2019, the examiner found that the Veteran does not have, and has never had such a disability. Because two VA examiners have now reviewed the findings of H. pylori and determined that the Veteran has GERD, and the Veteran stated that he does not recall being treated for this disease and that he has never been told that he has gastritis, the Board finds that the weight of evidence suggests that the Veteran does not have H. Pylori. After a review of the record, the Board finds that the preponderance of the evidence is against the claim of service connection for GERD. The Veteran is currently diagnosed with GERD, a known clinical diagnosis and not an “undiagnosed illness.” However, there is no competent and credible evidence linking the Veteran’s GERD disability to service. The only competent opinions of record addressing the relationship between the current condition and service are those of the VA examiners, and such opinions are against the claim. While the Veteran contends that his GERD is related to his military service, there is no indication that he has specialized training in diagnosing such a disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 77 (Fed. Cir. 2007). In this regard, the diagnosis of a gastrointestinal disability requires medical testing and training to identify. Thus, the Veteran’s lay opinion as to the diagnosis or etiology of his claimed disability is not competent evidence and is assigned less probative weight. Further, the Veteran’s statements of ongoing symptoms which began during service have been found to be not credible in light of the contemporaneous evidence of record which indicates otherwise. The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved, and service connection for GERD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for a deviated septum The Veteran seeks service connection for a deviated septum. He has asserted that he broke his nose during service and as a result he continues to have a deviated septum, breathing problems, and chronic upper respiratory infections. See September 2019 Board Hearing transcript. During an in-service June 2009 self-report of medical history, the Veteran noted a broken nose. A clinical examination of the Veteran’s nose revealed no abnormalities. In an April 2013 treatment record, the Veteran reported a previous broken nose that gives him breathing problems. Post-service treatment records from December 2013, November 2015, and August 2016 reflect a history of fractured nose. During a July 2014 VA examination, the Veteran reported that he fractured his nose in 2007 during an altercation where he was jumped by fellow service members. The VA examiner noted a slight leftward deviation of the nasal bone on examination. He noted a July 2014 x-ray revealed no fracture or nasal bone deformities, nasal septum is midline, and paranasal sinuses are clear. The VA examiner opined, based on the fact the Veteran now has a slighted deviated nose without septal deviation evident on today’s physical examination, it is less likely than not the Veteran’s nasal bone fracture, deviated septum, hypertrophy nasal turbinates and nasal cavity/sinus otherwise unspecified diagnoses in March 2014, was incurred in service. Additionally, the VA examiner noted that there are no medical records in service that show treatment or diagnosis of nasal fracture and although the Veteran reported nasal fracture on separation, the examiner noted that he had a normal nose examination. The Board remanded the issue in its January 2020 decision because the July 2014 VA examiner relied on private treatment records that are not associated with the Veteran’s claims file. Specifically, the July 2014 VA examiner referred to post-service records dated in March 2014 which showed the Veteran was diagnosed with a nasal bone fracture, deviated septum, hypertrophy nasal turbinates and nasal/cavity otherwise unspecified. The Board noted that a review of the claims file revealed no private treatment records dated in March 2014 which contain a diagnosis of a nasal bone fracture, deviated septum, or hypertrophy of the nasal turbinates. In this regard, the Board noted that results of the CT scan may reveal a septal deviation or other findings suggestive that the post-service diagnoses are likely related to the in-service report of a broken nose. In a letter dated August 6, 2020, VA requested that the Veteran complete and return an enclosed VA Form 21-4142 (Authorization to Disclose Information to VA) so that it could obtain the authorization to request treatment records from the Veteran’s private medical provider from March 2014 to the present. On August 19, 2020, the Veteran returned an incomplete form. A second request was made by the VA in a letter dated August 27, 2020. To date, the Veteran has not submitted a completed VA Form 21-4142. The duty to assist is not a one-way street. A claimant may not passively wait for assistance when his cooperation is needed for evidentiary development he has asserted is critical to a claim for VA benefits [nor may he deliberately choose to ignore requests for authorizations for VA to secure records deemed necessary to properly adjudicate his claims]. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In a February 2021 supplemental statement of the case the RO denied service connection for a deviated septum because no private records could confirm the issue claimed, and the objective medical evidence does not support a nasal fracture during active duty or diagnosis of a nasal fracture with clinical evidence post service discharge which could be linked to an active duty period. There is no competent and credible evidence linking a deviated septum or residuals of a fractured nose to the Veteran’s active duty service. To the extent the Veteran contends that he hase experienced ongoing symptoms since his active duty service, such statements are not credible in light of the in-service report of medical history where he denied having breathing problems, shortness of breath, wheezing, and sinusitis. The Veteran reported a history of a broken nose, was examined, and was found to be clinically normal. To the extent the Veteran contends that he now has a deviated septum that is related to an in-service injury, the Board finds that he is not competent to opine on whether such a post-service disability is related to an in-service injury. Such an opinion would require knowledge on the onset, progression, and etiology of such disabilities. The record does not indicate that the Veteran has the required knowledge, experience, or training to opine on such matters. Given the above, the Board finds that there is no competent and credible evidence linking the Veteran’s deviated septum to his active duty service. As a result, service connection for a deviated septum must be denied. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. In the Joint Motion, the parties agreed the Board erred by not ensuring that VA complied with its duty to assist under the requirements of 30 U.S.C. §5103A(c) and 38 C.F.R. §§ 3.159(c)(2), (3), to obtain relevant treatment records. The parties noted that in August 2019, the Veteran was authorized to seek non-VA medical care under the Veteran’s Choice Program. See November 2020 Joint Motion. In October 2019, Veteran was seen by Dr. P. R. Id. The consultation referral noted the reason for the referral was chronic hearing loss and noted a provisional diagnosis of unspecified hearing loss. Id. The record does not contain these treatment records. Further, the record contains no evidence that VA followed the procedures required under 38 C.F.R. §§ 3.159(c)(2), (3), to obtain these records and therefore, the parties agreed that the Board failed to ensure satisfaction of the duty to assist prior to adjudication of the Veteran’s claim. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain and associate with the claims file any outstanding private treatment records, to include all records from Dr. P. R. that the Veteran was authorized to receive under the Veterans Choice Program. The RO should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 3. After records development is completed, the claims file should be sent to an appropriate clinician to obtain an addendum opinion to determine the nature and likely etiology of Appellant’s hearing loss. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hearing loss had causal origins in service or is otherwise related to Appellant’s active duty service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After undertaking any additional development deemed appropriate and giving Appellant full opportunity to supplement the record, adjudicate the pending claims in light of any additional evidence added to the record. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.