Citation Nr: 21025186 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-34 556 DATE: April 27, 2021 ORDER Entitlement to service connection for an undiagnosed illness manifested by chronic diarrhea is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for Barrett’s esophagus is remanded. Entitlement to service connection for hiatal hernia is remanded. Entitlement to service connection for a left knee disability, claimed as joint pains secondary to service in Southwest Asia, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s chronic diarrhea is due to an undiagnosed illness presumptively related to his service in the Southwest Asia theater of operations. CONCLUSION OF LAW The criteria for entitlement to service connection for an undiagnosed illness manifested by chronic diarrhea have been met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1989 to August 1993, to include service in Southwest Asia during the Persian Gulf War. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board as to the issues on appeal in the July 2019 VA Form 9. Subsequently, in February 2020 correspondence and again in April 2021, the Veteran’s attorney requested in writing that the hearing request be withdrawn. As such, the Board finds there is no hearing request pending at this time, as the previous request has been withdrawn. 38 C.F.R. § 20.704(e). The Board remanded the claim in October 2020 for further development by the RO. The case has been returned to the Board for further appellate action. Entitlement to service connection for an undiagnosed illness manifested by chronic diarrhea 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 also be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term “chronic” means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms, 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). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The term “MUCMI” refers to 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. 38 C.F.R. § 3.317(a)(2)(ii). Functional gastrointestinal disorders constitute a MUCMI. 38 C.F.R. § 3.317(a)(2)(B). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). The Veteran contends his diarrhea is a manifestation of an undiagnosed illness or a MUCMI. See February 2019 VA Form 646; February 2020 correspondence. Here, the Veteran had active service in the Southwest Asia theater of operations. See DD-214. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Moreover, the Veteran has exhibited objective indications of a qualifying chronic disability, namely gastrointestinal signs or symptoms, which manifested to a compensable degree within the presumptive period concluding on December 31, 2021, and have existed for at least six months. See 38 C.F.R. § 3.317(a), (b). The Veteran reported that the episodes of diarrhea began in 2013 or 2014, and that he presented to the emergency room several times in May 2016. He reported that he presently experiences frequent episodes and takes immodium to treat these symptoms. See February 2019 VA Form 646; February 2020 correspondence. The Board finds that the Veteran has provided credible and competent statements regarding his symptoms following service. The lay evidence is further corroborated by multiple medical treatment records. Notably, private treatment records dated April and November 2010 noted diarrhea and gastroenteritis; a November 2013 record noted persistent gastritis lasting several months. A VA treatment record dated June 2016 indicated that the Veteran reported to a local hospital in May for severe diarrhea requesting a medication refill. A VA treatment record dated August 2016 noted that the Veteran reported to a local hospital three times in the past month due to chronic nausea and diarrhea and that treatment providers could not find a cause. A VA treatment record dated October 2017 noted a history of recurrent nausea, vomiting, and diarrhea. Private treatment records dated November 2019 noted occasional loose bowel movements. Based on the favorable evidence in the record, VA twice throughout the pendency of this claim sought a competent medical opinion regarding the etiology and pathophysiology of the Veteran’s diarrhea symptoms. The Board finds that none of the opinions of record are adequate. The Veteran first underwent a VA examination in August 2018. In an October 2020 decision, the Board found that this examination was inadequate because it did not address the pathology of the Veteran’s diarrhea. Following the October 2020 Board remand, the RO scheduled a second VA examination in January 2021. The January 2021 VA examiner opined that no diagnosis of chronic diarrhea could be made. The record shows merely acute complaints of diarrhea that are subjective in nature and not supported by medical treatment records. No complaints of diarrhea were noted in service. The symptoms were likely caused by use of medication. As such, it is less likely than not that the claimed condition was incurred in or caused by service. The Board finds that this addendum opinion is inadequate as the rationale relies on a lack of “objective” evidence. This is not the evidentiary standard. Moreover, it does not address the Veteran’s lay statements that while ceasing the use of Metformin decreased the frequency of episodes, it did not eliminate them. See February 2020 correspondence. The Veteran also reported to the examiner that he presently experiences at least three daily episodes per week. He was prescribed immodium within the past year and takes this intermittently throughout the week. He reported that these symptoms have persisted for years and worsened through time. See January 2021 examination disability benefits questionnaire (DBQ). As there is no diagnosis of a disability, the Veteran’s signs and symptoms cannot be considered a MUCMI. See 38 C.F.R. § 3.317(a)(2)(ii). However, the Board finds that the Veteran’s chronic diarrhea is due to an undiagnosed illness, which has manifested to a degree of at least 10 percent within the presumptive term, and existed for at least 6 months, pursuant to 38 C.F.R. §§ 3.317(a), 4.114, DC 7319. As such, the criteria for a grant of service connection for an undiagnosed illness manifesting as chronic diarrhea pursuant to 38 C.F.R. § 3.317 is met and an award of service connection is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. 2. Entitlement to service connection for Barrett’s esophagus is remanded. 3. Entitlement to service connection for hiatal hernia is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The RO obtained a January 2021 VA medical opinion regarding the etiology of the Veteran’s GERD. However, the medical opinion is inadequate because it does not address an undated service treatment record (STR) indicating possible reflux or the Veteran’s lay statements, noted in the DBQ, that he noticed heartburn in service. Furthermore, the opinion does not address the Veteran’s environmental exposures in the Southwest Asia theater of operations beyond a single, conclusory statement. Accordingly, remand is required to ensure the record contains a VA opinion that adequately addresses both the medical and lay evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). The case must be returned for an addendum opinion. The RO also obtained January 2021 VA medical opinions regarding the etiology of the Veteran’s Barrett’s esophagus and hiatal hernia. The examiners indicated that these conditions may be secondary to the Veteran’s GERD. As the outcome of the Veteran’s claim of service connection for GERD may impact his claim of entitlement to Barrett’s esophagus and hiatal hernia, the latter claims are inextricably intertwined with the former claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Therefore, adjudication of the claims for Barrett’s esophagus and hiatal hernia must be deferred until the RO has adjudicated the Veteran’s remanded service connection claim for GERD. 4. Entitlement to service connection for a left knee disability, claimed as joint pains secondary to service in Southwest Asia, is remanded. The RO obtained a January 2021 VA medical opinion pursuant to the October 2020 Board remand, which found that the prior VA examination of record lacked an opinion on etiology because the examiner did not find any diagnosis. The Board finds that the January 2021 medical opinion is also inadequate. While the examiner provided a diagnosis, knee strain, the opinion does not address a February 1993 STR indicating that the Veteran reported simultaneous trauma to the left hip and knee or VA treatment records dated October 1999, noting a report of bilateral knee joint pain, and December 1999, noting a painful knot on the left upper thigh that affected his sitting and standing. Thus, the case must be returned for an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). On remand, the examiner will be asked to address these medical records. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s GERD. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that the Veteran’s GERD is etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service, to include acknowledged environmental exposures in Southwest Asia. An opinion that merely relies on the exclusion of GERD as a presumptive Persian Gulf War qualifying chronic disability will not be sufficient. In rendering this opinion, the examiner should address the following: (1) an undated service treatment record indicating possible reflux; (2) the Veteran’s lay statements that he noticed heartburn in service; (3) the Veteran’s lay statements that he had symptoms in 1994 or 1995, shortly after separation from service. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Following the completion of directives #1-2, obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s Barret’s esophageus. After reviewing the claims folder in its entirety, the examiner should address the following: (a) Is the Veteran’s Barret’s esophageus at least as likely as not related to an in-service injury, event, or disease in service, to include acknowledged environmental exposures in Southwest Asia? (b) If the answer to (a) is no, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s Barret’s esophageus is a manifestation of: (i) an undiagnosed illness; or (ii) a medically unexplained chronic multi-symptom illness? (c) In the alternative, is the Veteran’s Barret’s esophageus disability at least as likely as not (50 percent or greater probability) caused by his GERD; and (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s Barret’s esophageus has been aggravated by his GERD? If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 4. Following the completion of directives #1-2, obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s hiatal hernia. After reviewing the claims folder in its entirety, the examiner should address the following: (a) Is the Veteran’s hiatal hernia at least as likely as not related to an in-service injury, event, or disease in service, to include acknowledged environmental exposures in Southwest Asia? (b) If the answer to (a) is no, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hiatal hernia is a manifestation of: (i) an undiagnosed illness; or (ii) a medically unexplained chronic multi-symptom illness? (c) In the alternative, is the Veteran’s hiatal hernia at least as likely as not (50 percent or greater probability) caused by his GERD; and (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hiatal hernia has been aggravated by his GERD? If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 5. Following completion of directive #1, obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s left knee strain. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on the following: (a) Is it as least as likely as not (a 50 percent probability or greater) that the Veteran’s left knee strain is etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service, to include acknowledged environmental exposures in Southwest Asia? (b) If the answer to (a) is no, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s left knee strain is a manifestation of: (i) an undiagnosed illness; or (ii) a medically unexplained chronic multi-symptom illness? In rendering this opinion, the examiner should address the following: (1) a February 1993 STR indicating that the Veteran reported simultaneous trauma to the left hip and knee; (2) an October 1999 VA treatment record noting a report of bilateral knee joint pain; and (3) a December 1999 VA treatment record, noting a painful knot on the left upper thigh that affected sitting and standing. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Ryan Frank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.