Citation Nr: 21023871 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-09 993 DATE: April 21, 2021 ORDER Service connection for irritable bowel syndrome-diarrhea (IBS-D) is granted. Service connection for gastroesophageal reflux disease (GERD) is denied. REMANDED Service connection for an upper respiratory disorder, to include sinusitis.   FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. He is diagnosed with IBS-D that is compensably disabling. 2. The Veteran’s GERD did not have its onset during or within the initial year of separation, and, is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for IBS-D are met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for GERD are not 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 served on active duty from May 1989 to May 1993. The case is on appeal from a May 2015 rating decision. In October 2018, the Veteran testified at a Board hearing. In April 2019, the Board remanded the appeal for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, service connection may be granted for veterans who served in the Southwest Asia Theater during the Persian Gulf War and exhibits objective indications or symptoms of a qualifying undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI), so long as the objective symptoms occurred either during service in the Southwest Asia Theater or manifested 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 MUCMI is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, excluding structural gastrointestinal diseases. Functional gastrointestinal disorders are noted to be 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, and indigestion. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for IBS. The Veteran seeks service connection for IBS. He maintains that symptoms had their onset during service and that he has had the same symptoms ever since. Lending credibility to the Veteran’s assertions are his STRs reflecting gastroenteritis in May 1990. In addition, positive bowel sounds were noted in July 1992. Further, pursuant to the Board’s April 2019 remand, the Veteran was afforded a VA examination in November 2019. The examination report notes symptoms of alternating diarrhea and constipation and abdominal pain and cramping. The examiner noted sufficient evidence of a relationship between Gulf War service and IBS in updated medical literature. Although the examiner did not diagnose IBS, the March 2015 VA examination report reflects that IBS-D was diagnosed in August 2014. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time the claim for service connection is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In that respect, the August 2014 records reflecting a formal diagnosis of IBS-D based on clinical testing note a two year history of symptoms of abdominal cramping, bloating, early satiety, increased stool frequency, and change in stool consistency. See January 2016 CAPRI documents. Further, the March 2015 VA examiner noted the Veteran’s report of abdominal distress and bowel disturbance for 15 to 20 years, and weekly episodes of bowel disturbance were reported. Thus, the Board finds that the Veteran has had IBS-D throughout the appeal period. The Board finds that the Veteran’s IBS-D is related to his Gulf War service. IBS is listed as a MUCMI (functional gastrointestinal disorder) under 38 C.F.R. § 3.317, which essentially replaces the nexus element, and there is not sufficient affirmative evidence to outweigh the Veteran’s credible report of in-service symptoms. Further, the evidence shows that the condition is at least compensably disabling under 38 C.F.R. § 4.114, Diagnostic Code 7319. After resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s IBS-D is a result of Persian Gulf War service as a MUCMI. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for IBS-D is warranted. 2. Service connection for GERD. The Veteran seeks service connection for GERD. He maintains that symptoms had their onset during service and that he has had the same symptoms ever since. However, as the Veteran’s GERD is a diagnosed condition, it cannot be considered an undiagnosed illness. 38 C.F.R. § 3.317(a)(1)(ii). Moreover, GERD is a structural gastrointestinal disorder and therefore not considered a MUCMI. 38 C.F.R. § 3.317(a)(2)(i)(B)(3); 76 Fed. Reg. 41696 (Jul. 15, 2011); see Atencio v. O’Rourke, 30 Vet. App. 74, 83 (2018). Thus, presumptive service connection for GERD under § 3.317 is not warranted. Although presumptive service connection for GERD under § 3.317 is not warranted, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the question for the Board is whether the Veteran’s GERD began during service or is at least as likely as not related to an in-service injury, event, or disease. Pursuant to the Board’s April 2019 remand, the Veteran was afforded a VA examination in November 2019, and an addendum VA opinion was provided in August 2020. The August 2020 opinion states that the Veteran’s GERD was caused by post service relaxation of the lower esophageal sphincter and unrelated to service, including gastroenteritis in May 1990. Pain was noted to be a nonspecific symptom and not pathognomonic for GERD. Further, gastroenteritis was noted to be an acute and transitory condition caused by viral infection, and one that does not cause, or progress to, GERD. No evidence that the in-service gastroenteritis did not resolve without residual was reported, noting that the April 1993 separation examination showed a normal abdomen and viscera, and that the Veteran denied having or having had frequent indigestion. Additionally, no immediate post service medical records indicating treatment for GERD or a related condition were noted. The opinion states that the Veteran’s GERD is less than likely related to service, including in-service gastroenteritis. The Board notes that although the Veteran is competent to report his symptoms, a determination as to whether the Veteran’s GERD is related to service is a complex matter requiring related medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As the Veteran has no known or reported medical expertise, he is not legally competent to establish a nexus between GERD and service; thus, his opinions as to causation lack probative value, and an opinion by a qualified medical professional is required to decide the claim. In that regard, the August 2020 opinion rendered by the VA physician constitutes such competent medical evidence. Further, as this opinion is unequivocally stated, consistent with the record, and supported by cited evidence of record, the Board finds that this medical opinion is probative evidence against the Veteran’s claims. That is, the expert medical evidence outweighs the Veteran’s report of a continuity of symptomatology and his lay opinion on the matter, even if such a theory is intuitively plausible to a lay person. The preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and service connection for GERD is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d).   REASONS FOR REMAND Service connection for an upper respiratory disorder, to include sinusitis. Pursuant to the Board’s April 2019 remand, the Veteran was afforded a VA examination in November 2019. The examiner stated that it was less than likely that the Veteran’s sinusitis, allergic rhinitis, epistaxis, or deviated septum is related to service, including environmental exposures in the Persian Gulf. Although the opinion reflects various causes for the conditions, noting that the Veteran’s deviated nasal septum was either a congenital defect or due to injury, the opinion does not sufficiently address the Veteran’s statements with respect to onset of symptoms during service. In addition, and even though the examiner acknowledged that the Veteran’s service dental records reflected easy bleeding and bruising, the opinion as to nose bleeds was based on the absence of a diagnosis of epistaxis in the Veteran’s STRs. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner’s opinion inadequate that relied on the absence of contemporaneous medical evidence). Moreover, and although insufficient medical literature of an association between service in the Persian Gulf and respiratory disease was noted, signs or symptoms that may be a manifestation of a MUCMI include signs or symptoms involving the respiratory system. 38 C.F.R. § 3.317(b). Based on the above, the Board finds that remand for an addendum opinion is warranted. The matter is REMANDED for the following action: Return the claims file to the VA examiner who conducted the November 2019 examination. If the November 2019 examiner is not available, the claims file should be provided to an appropriate medical professional to render the requested opinions. The need for another examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) for an upper respiratory disorder, including sinusitis, is left to the discretion of the medical professional offering the addendum opinions. After review of the entire claims file, the examiner should opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that an upper respiratory disorder, including sinusitis, rhinitis, and epistaxis, had its onset during or within the initial year after service or is otherwise related to an in-service injury, event, or disease, to include exposure to environmental hazards during his service in Persian Gulf. The examiner should address a May 2015 VA examination report reflecting diagnoses of maxillary sinusitis and rhinitis, and referencing epistaxis (nose bleeds), as well as Dental Health Questionnaires during service in May 1990, October 1991, and November 1992 in which the Veteran indicated that he bled easily, as well as the Veteran’s in-service exposure to Persian Gulf War contaminants. If there are symptoms related to a respiratory disorder that cannot be attributed to a known diagnosis, the examiner must provide an opinion as to whether any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a MUCMI related to the Veteran’s Persian Gulf War service. (b.) Whether the Veteran’s deviated septum is a congenital defect, congenital disease, or an acquired condition. The terms “disease” and “defect” must be interpreted as being mutually exclusive. For VA purposes, the term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. The term “defect” is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Defects are static conditions that are incapable of improvement or deterioration, whereas diseases are capable of such progression. If not a congenital disease or defect, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s deviated septum had its onset during, or is otherwise related to service? If deemed a congenital disease, the examiner should explain whether the disorder clearly and unmistakably pre-existed service. If so, the examiner should opine as to whether the disorder clearly and unmistakably was not aggravated during service. Aggravation is an increase in severity beyond the natural progress of the disease or temporary flare-up. Rationale for all opinions expressed should be provided. If the reviewing clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.