Citation Nr: 21028543 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 13-17 916 DATE: May 11, 2021 ORDER Entitlement to service connection for irritable bowel syndrome (IBS) is denied. FINDING OF FACT The Veteran's IBS clearly and unmistakably preexisted his active service, was clearly and unmistakably not aggravated beyond its natural progress by his active service, is not a manifestation of an "undiagnosed" illness, and is not shown to be etiologically related to his service. CONCLUSION OF LAW The criteria for service connection for IBS are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306 (a), 3.317 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on Active Duty for Training in the United States Army Reserve from May 1982 to July 1982, and then from November 1983 to March 1984. He then served on active duty in the United States Air Force from October 1990 to April 1991, to include Operation Desert Shield/Storm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran appealed the Board's August 2017 decision to the United States Court of Appeals for Veterans Claims (Court), which in an August 2018 order, granted the parties' Joint Motion for Remand (JMR), vacating the Board's August 2017 decision and remanding the claim for compliance with the terms of the JMR. The Board remanded this matter in November 2018 for additional development. The Board finds that there has been substantial compliance and that it may now proceed with a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for IBS. The Veteran seeks service connection for IBS, to include on a direct basis, and/or as aggravated by his active duty service in the Persian Gulf, and/or as a result of environmental exposures during service. The Veteran is a Persian Gulf War veteran under 38 C.F.R. § 3.317. 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). A veteran is presumed to have been sound upon entry when no preexisting condition is noted upon examination for entry into service. When rebutting the presumption of soundness, the burden is on VA to show by clear and unmistakable evidence both the pre-existence of disability prior to service and that the disability was not aggravated during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also, Wagner v. Principi, 370 F.3d 1089, 1095-96 (Fed. Cir. 2004). The presumption of soundness does not apply where an entrance examination was not conducted, but the presumption does apply where an existing examination record was lost or destroyed while in VA custody. See, Smith v. Shinseki, 24 Vet. App. 40, 46 (2010); Quirin v. Shinseki, 22 Vet. App. 390, 396 n.5 (2009); Lee v. Brown, 10 Vet. App. 336, 339 (1997). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A September 1987 treatment record from NYC Health notes the Veteran reported having diarrhea for 1.5 weeks. Infectious diarrhea vs. Crohn's disease was noted. In his April 1981 enlistment examination, the Veteran denied experiencing frequent indigestion or stomach or intestinal trouble. A September 1987 private treatment record notes the Veteran underwent a sigmoidoscopy and was diagnosed with questionable inflammatory bowel disease with colitis. A January 1988 service treatment record from NYC Health notes the Veteran's chronic diarrhea was found to be secondary to irritable bowel. A May 1989 treatment record from Bellevue Hospital notes the Veteran had chronic diarrhea. A May 1989 treatment record from Bellevue Hospital notes the Veteran reported having diarrhea. In a March 1990 periodic examination, the Veteran denied experiencing frequent indigestion or stomach or intestinal trouble, and no such problems were found upon examination. The Board notes that the record contains no entrance for when the Veteran entered into active duty in October 1990 and neither the Veteran nor his representative have argued that such an examination exists. As there is no record of the Veteran having a medica examination contemporaneous to his entrance on active duty in October 1990, the Board finds that the presumption of soundness does not apply here. In his March 1991 separation examination, the Veteran denied experiencing frequent indigestion or stomach or intestinal trouble, and no such problems were found upon investigation. March 1995 treatment records from Walter Reed Army Medical Center notes the Veteran had longstanding IBS and reported having intermittent diarrhea. In a March 1995 Gulf War Psychosocial Assessment from Walter Reed Army Medical Center, the Veteran reported that about a year after returning from the Persian Gulf he began having sleep disorders and irritable bowel disorder. The Veteran was afforded a VA intestinal conditions examination in January 2013. A diagnosis of irritable bowel syndrome was noted. The Veteran reported that he was in Desert Storm and had problems with his bowels, especially diarrhea. In a September 2013 letter, the Veteran stated that he served as a medical service technician during Operation Desert Storm. He then stated that during his initial advance training as a medical specialist at Fort Sam Houston in 1982 he had "severe bouts of irritable bowel syndrome." He then stated that during his period of advanced medical training in 1983 and 1984, he was treated at Womack Army Hospital for chronic diarrhea. He then asserted that his IBS was aggravated by his service during Operation Desert Storm. In an October 2016 VHA opinion, a VA Gastroenterologist reviewed the Veteran's medical records, noted that he has had chronic, intermittent diarrhea since at least September 1987, was diagnosed with IBS in 1988, and that he did not complain of symptoms of diarrhea while he was on active duty in October 1990 and November 1990 while in Saudi Arabia, though was sent back for depression. The examiner then stated that no exacerbation of his IBS was noted at the time of his active service, characterized the IBS and diarrhea as preexisting, noted that his current IBS is the same chronic disease as the preexisting IBS, and opined that "[t]he AOJ did not err when it denied service connection for irritable bowel syndrome. Here, the Board notes that the doctor did not state whether the Veteran's IBS clearly and unmistakably preexisted his service and provided no rationale for his opinion. Further, the examiner made a legal determination regarding the validity of the AOJ's denial. Medical personnel are utilized to provide medical examinations and opinions; they cannot make legal conclusions. Instead, analyzing the medical evidence of record and assigning probative value is a legal determination solely within the Board's adjudicative authority as finder of fact. Cf. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). For these reasons, the Board affords this opinion no probative value. A September 6, 2018 VA treatment record notes the Veteran was diagnosed with IBS in 1995 and was previously able to deal with his symptoms, but in the prior 2 to 3 years the symptoms have worsened in terms of urgency. The Veteran was afforded a VA contract intestinal conditions examination in September 2019. A diagnosis of irritable bowel syndrome was noted with a date of onset in 1990. The Veteran reported that when he was in Saudi Arabia, he had loose bowels 2 to 3 times daily which has continued. The VA examiner opined that the Veteran's IBS is at least as likely as not incurred in or caused by his service, noting that IBS was diagnosed in 1995 and that the symptoms developed while he was in Saudi Arabia. Here, the Board notes that the examiner clearly did not view the claims file as the evidence of IBS from 1987 through 1989 was not discussed, but instead relied solely on the Veteran's statement that his symptoms began in 1990 while in Saudi Arabia. As such, the examiner's opinion is based on a false premise and is of no probative value. The Veteran was afforded a VA intestinal conditions examination in December 2020. A diagnosis of IBS from September 14, 1987 was noted. The Veteran reported that his IBS began in October 1990 during Desert Storm when he was in Saudi Arabia and had to constantly go to the bathroom for bowel movements. The examiner noted that September 1987 treatment records from Bellevue Hospital Center noted that Veteran had chronic diarrhea and a history of diarrhea with stress and that an impression of IBS was rendered. The examiner then opined that the Veteran's IBS was less likely than not incurred in or caused by his service, noting that the condition clearly and unmistakably began in 1987 as confirmed by private treatment records. The examiner then noted that, "[a]ccording to Medscape, Irritable bowel syndrome is a chronic relapsing disorder characterized by recurrent symptoms of variable severity" and that "[t]he veteran's medical records do[] not support a aggravation of his irritable bowel syndrome beyond its natural course with a poor prognosis due to an in-service injury, event or illness such as (Weight loss, Diarrhea at night, Rectal bleeding, Iron deficiency anemia, Unexplained vomiting, Difficulty swallowing, Persistent pain that isn't relieved by passing gas or a bowel movement)." The examiner then concluded that his IBS was clearly and unmistakably not aggravated by his service but by the natural progress of the condition. Here, the Board finds that the examiner's opinion is probative 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). The Board notes that the Veteran is certainly competent to report symptoms such as diarrhea and bowel frequency. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board also notes that the Veteran has inconsistently reported the start of his symptoms. As noted above, the Veteran asserted first having irritable bowel about a year after returning from Iraq at a March 1995 examination at Walter Reed. Subsequently, in a September 2013 letter, he asserted that his IBS began during his periods of ACDUTRA in 1982 and 1983 through 1984 and was aggravated by his active duty service in 1990. The Veteran then advised the September 2019 and December 2020 VA examiners that his IBS started in 1990 while in Iraq. The Board must assess not only competency of any lay statements, but also their credibility. See, Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In weighing credibility, VA may consider internal inconsistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, the record establishes a pattern of inconsistent reporting, which calls into question the Veteran's overall credibility and the reliability of his statements offered in support of her claim for benefits. Jandreau; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence and conflicting statements of the veteran in weighting credibility). Additionally, and as noted above, the Veteran denied having experienced frequent indigestion, stomach or intestinal problems in March 1990 and April 1991 service medical examinations. The Court has held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). Further, while the Veteran has asserted an aggravation of his IBS by his service in Iraq, he has not demonstrated that he is competent to provide such an opinion. The Board finds that the question regarding aggravation of IBS to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See, Jones v. Brown, 7 Vet. App. 134, 137 (1994). Here, the Veteran has not demonstrated that he possesses such specialized knowledge or training and has merely asserted that aggravation occurred. As such, the Board finds the Veteran's lay statements to be of limited probative value. Even if the presumption of soundness were to apply to the Veteran during his period of active duty, the Board finds that it has been rebutted. Here, the preponderance of the competent, credible evidence of record shows that the Veteran's IBS had its onset in 1987, that it clearly and unmistakably preexisted his active duty service and was clearly and unmistakably not aggravated by his active duty service. Regarding the claim that the Veteran's IBS should be granted service connection as a medically unexplained multisymptomatic chronic illness, the Board finds that the medical evidence of record weighs against any finding that the Veteran's IBS symptoms are a qualifying chronic disability under 38 C.F.R. § 3.317. Private and VA medical professionals have clearly and consistently provided a specific diagnosis of IBS for the Veteran's symptoms and there is no indication that the Veteran has bowel symptoms that are not encompassed by the current IBS diagnosis which clearly and unmistakably preexisted he Veteran's active duty service in the Persian Gulf. There is no reasoned medical opinion conflicting with it or evidence of bowel symptoms that are not encompassed by the current IBS diagnosis. Based on the above, the Board finds that service connection for IBS is not warranted and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brian P. Keeley 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.