Citation Nr: 21030712 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-04 364 DATE: May 19, 2021 ORDER Entitlement to service connection for irritable bowel syndrome (IBS) is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. FINDINGS OF FACT 1. The Veteran had qualifying active service in the Southwest Asia Theater during the Persian Gulf War, and he has a current diagnosis of chronic IBS that has manifested to at least a compensable degree. 2. The competent and credible evidence is at least in equipoise as to whether the Veteran's GERD had its onset in service. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for IBS have been met. 38 U.S.C. §§ 1101, 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1991 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, as germane to the claims before the Board, denied service connection for fibromyalgia, a bowel condition, and GERD. In August 2017, the RO granted service connection for fibromyalgia, and that award is considered a full grant of the relief sought by the Veteran. Thus, the fibromyalgia claim is no longer in appellate status. The service connection claims for a bowel condition and GERD are the only issues that remain on appeal. A Board video-conference hearing was held in September 2020 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Pertinent Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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(e)(1). Service connection may 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 multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). 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). Examples of MUCMIs include chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disabilities). 38 C.F.R. § 3.317(a)(2)(B). A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. IBS The Veteran seeks service connection for IBS. First, the Board finds that the probative medical evidence shows that the Veteran is currently diagnosed with IBS. See February 2020 Gastrointestinal Consultation; September and October 2020 VA outpatient treatment notes. 38 C.F.R. § 3.317(a)(2)(i)(B)(3). Second, the Board finds that the Veteran is a Persian Gulf veteran. 38 C.F.R. § 3.317(e). His enlisted performance report indicates he had active service in Southwest Asia in support of Operations Desert Storm, Southern Watch, and Desert Focus, and was awarded the Kuwait Liberation Medal for his service. The Board notes that IBS is on the list of medically unexplained chronic multi-symptom illnesses subject to presumptive service connection for Persian Gulf Veterans. 38 C.F.R. § 3.317. Thus, medical nexus evidence is not required. Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004). Rather, the issue becomes whether the Veteran's IBS symptoms are consistent with at least 10 percent disability rating, which is assigned for moderate IBS indicated by frequent episodes of bowel disturbance with abdominal distress. See 38 C.F.R. § 4.114, Diagnostic Code (DC) 7319. On review, the Board finds that the evidence is in equipoise as to whether his symptoms more nearly approximate at least a compensable disability rating of 10 percent under 38 C.F.R. § 4.114, DC 7319. The Veteran reported symptoms of IBS and diarrhea since his service, with abdominal pain, alternating diarrhea and constipation, and relieved by a bowel movement. See e.g., Hearing Transcript, page 14, 15, 18; June 2016 Gulf War Registry Examination; October 2020 VA Treatment Record. The Veteran's statements regarding his current IBS symptoms are competent as his reported symptoms are observable by a lay person through his or her senses. Layno, supra. Indeed, the Veteran is competent to describe his IBS symptoms, including their onset and continuity since service. The Board finds the Veteran's statements credible regarding the onset and ongoing presence of his IBS. Moreover, the Veteran's lay statements are consistent with the medical evidence of record reflecting that those symptoms are cumulatively diagnosed as IBS. In a September 2020 VA Intestinal Conditions DBQ completed by the Veteran's VA primary care physician, it was noted that the Veteran originally began having symptoms while in military service in 1993 to 1994 with abdominal pain, bloating, diarrhea and urgency 6 to 8 times per day. The examiner also specifically indicated that the Veteran had IBS with diarrhea 6 to 8 times per day, alternating diarrhea and constipation most often due to medication, abdominal distension manifesting as daily bloating experienced with diarrhea, with frequent episodes of bowel disturbance with abdominal distress, and episodes of exacerbations and/or attacks of the intestinal condition, including diarrhea with abdominal pain, bloating, gas, fecal incontinence, nausea and vomiting. The Board finds the DBQ highly probative. With resolution of any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's IBS symptoms have approximated the criteria for at least a compensable rating. The Board recognizes prior VA medical evidence dated in June 2016 and August 2017 that found no evidence of a bowel condition but finds the evidence of less probative value as it did not address the competent and credible lay statements regarding his bowel symptoms and solely relied on the absence of a diagnosis in his treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based upon the above, service connection for the currently diagnosed IBS, as a qualifying chronic multi-symptom illness related to service in the Persian Gulf, is granted. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. GERD The Veteran contends that he has GERD that began in service. The Veteran is currently diagnosed with GERD, with symptoms such as persistently recurrent epigastric distress, pyrosis, reflux, and sleep disturbance caused by esophageal reflux which occur 4 times or more per year. See June 2016 VA Examination Report. This medical evidence satisfies the first element of a claim for service connection. GERD is not considered a MUCMI under 38 C.F.R. § 3.317 and therefore, presumptive service connection under 38 C.F.R. § 3.317 is not for application here. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The Board now turns to the issue of service connection on a direct basis. Although the Veteran's service treatment records do not show a diagnosis or treatment of GERD while in service, the Veteran admitted at his Board hearing that he did not seek medical care for gastrointestinal issues in service as he felt that was not something he should have complained about. At any rate, the lack of a GERD diagnosis in the STRs is not necessarily fatal to the claim. The record contains two medical opinions addressing the etiology of the Veteran's GERD. In conjunction with his VA "Gulf War" medical examination in June 2016, a medical opinion was obtained, and the examiner opined "GERD is not related to environmental exposures." However, the June 2016 VA medical opinion is accorded no probative weight as it is a mere conclusory statement with no supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Another VA medical opinion was obtained in August 2017. The examiner opined there was insufficient evidence to support that the Veteran's diagnosis was incurred in or caused by the Veteran's time in the military. While the examiner noted the history of having reflux symptoms for years and using Tums, the examiner found his service treatment records revealed no evidence the Veteran reported or complained of GERD symptoms during his time in military service or received any treatment or care during his time in the military, and referenced one post-service private treatment record which denied heartburn. See August 2017 VA Medical Opinion. However, the Board finds the August 2017 medical opinion is inadequate as the examiner did not address the lay statements regarding the onset, symptoms, and his self-treatment during his service, and instead relied on the lack of complaints in his service treatment records to support a negative opinion. See Dalton, supra. Despite the lack of competent evidence of a nexus however, the Board finds highly probative the Veteran's lay statements in this case with regard to the onset of his gastrointestinal symptoms in service and the fact that he had those same symptoms (later diagnosed as GERD) ever since. The Veteran reported in his June 2016 VA compensation examination and August 2016 notice of disagreement that the onset of his GERD symptoms was in service. During the Board hearing, he noted he experienced significant heartburn, regurgitation, and acid reflux while in service. The Veteran is competent to report observable symptoms, and the Board has no reason to doubt his account of his symptoms. See Layno, supra; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, in support of the claim, the Veteran submitted four "buddy" statements that indicate that the Veteran used antacids, with one commenting, "I often joked that he was using that stuff 'like an old man.'" These competent buddy statements are consistent with the Veteran's lay statements and are found to be credible. With resolution of any doubt in his favor, the Board finds that the competent and credible lay evidence is in relative equipoise as to whether the Veteran's GERD had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for GERD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.