Citation Nr: 21032864 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 11-07 291 DATE: May 28, 2021 ORDER Entitlement to service connection for irritable bowel syndrome (IBS) is denied. Entitlement to service connection for residuals of left hip replacement is granted. Entitlement to service connection for arthritis of the joints is denied. FINDINGS OF FACT 1. The Veteran's IBS was not shown during a period of active service or a period of active duty for training. 2. The evidence is in relative equipoise as to whether the Veteran's residuals of left hip replacement are secondary to the service-connected low back disability. 3. Arthritis of the joints was not shown during a period of active service or within a year of discharge therefrom; it was not shown during a period of active duty for training, nor is it shown to be related to injury incurred during inactive duty for training, and arthritis of the joints is not shown to be secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for IBS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for residuals of left hip replacement have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for IBS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had military service, including active duty for training from September 1983 to February 1984, and active duty from January 1991 to July 1991, and from October 1991 to May 1992. He also served in the United States Army National Guard until March 2007. In April 2013, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In correspondence dated in April 2021, the Veteran was notified that the VLJ who conducted his April 2013 hearing was no longer employed by the Board, and he was given the opportunity to request an additional Board hearing before another VLJ. However, as the Veteran did not respond within 30 days from the date of the April 2021 correspondence, the Board assumes that he did not want another hearing and will proceed accordingly based on the April 2013 hearing transcript already of record, which the undersigned has reviewed in detail. This case was previously remanded by the Board in May 2014, August 2016, July 2017, and September 2020, for additional development, which has been completed. The Board remand also remanded claims for entitlement to service connection for a respiratory disorder, a low back disability and sleep apnea. During the pendency of the appeal, in November 2020 and January 2021 rating decisions the Agency of Original Jurisdiction (AOJ) granted service connection for a respiratory disorder, a low back disability and sleep apnea. As the Veteran has not disagreed with the rating or effective date assigned, the issues are no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. Reserve and National Guard service generally means active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). The term active military service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). The presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 only applies to periods of active duty and not to the veteran's ACDUTRA or INACDUTRA with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for IBS The Veteran seeks service connection for IBS. He asserts that IBS symptoms initially manifested in 1990 or 1991 during active service. He has attributed his IBS to stress from being the military, as well as to being tasked with cleaning equipment returning from Southwest Asia while he was deployed in Germany. The evidence shows that the Veteran suffers from multiple gastrointestinal issues, including IBS and gastroesophageal reflux disease (GERD) with gastric ulcers. Service connection has been established for GERD with gastric ulcers. The service treatment records show he was treated for gastric ulcers in 1988 and for GERD in 1989. In May 1991, the Veteran reported a history of frequent indigestion, but denied stomach trouble. National Guard records show that in August 2001, the Veteran reported frequent indigestion or heart burn, as well as stomach intestinal trouble or ulcer. In the notes, he specifically attributed his symptoms to an ulcer in 1988 and acid reflux. He reported taking medication for GERD. IBS was not noted. In March 2006, the Veteran reported that he was undergoing gastrointestinal testing with 13 emergency room visits resulting in gallbladder removal, appendix removal and hernia repair. Private treatment notes in 2005 recorded a diagnosis of IBS. In March 2006, the Veteran's treating clinician, Dr. K.C., recorded a two and half year history of abdominal pain, with a diagnosis of IBS five years earlier, with complaints of cramping, gas, and alternating constipation and diarrhea. He was treated with Bentyl and Vicodin. Dr. K.C. highlighted a recent medical history that included an abdominal and pelvic CT scan in December 2004, which showed fatty liver and mild sigmoid diverticulosis; an abdominal x-ray in December 2005, which was normal; head CT in January 2006, which was normal; and a small bowel follow through in December 2004, which was normal. He had also undergone several surgical interventions for his abdominal pain including laparoscopy in December 2004 with subsequent appendectomy. In March 2005, he underwent cholecystectomy for mild chronic cholecystitis. In June 2005, he underwent a right hernia repair, with a history of colonoscopy and upper endoscopy approximately two years earlier, which were significant only for mild sigmoid diverticulosis and mild gastritis, respectively. Accordingly, while the evidence of record shows that the Veteran experienced multiple gastrointestinal problems since 1988, the evidence fails to document IBS during active duty. The service treatment records, National Guard records and private treatment records, document a diagnosis of IBS after 2000. It is noteworthy that the records show that the Veteran was extensively treated and examined prior to 2000, for multiple gastrointestinal problems, but not IBS. There is no objective evidence to support a finding of IBS until many years after discharge from active duty service in May 1992. The Board acknowledges that the medical evidence shows that the Veteran was initially diagnosed with IBS while still enlisted in the National Guard. However, the records do not reflect that the Veteran suffered from IBS due to an event that occurred in the line of duty while performing ACDUTRA, and as a disease, service connection for IBS noted during a period of INACDUTRA is inapplicable. The record as well does not otherwise contain a medical opinion relating the Veteran's IBS to active duty service or a period of ACDUTRA. In a September 2007 statement, Dr. K.C. noted that the Veteran had a 15 year history of gastrointestinal problems, including ulcers, GERD, and IBS. Dr. K.C. stated that the Veteran's gastrointestinal issues were in check until three years earlier when the Veteran reported multiple times to the emergency room for extreme gastrointestinal pain for which he underwent extensive gastrointestinal testing. Dr. K.C. stated that the Veteran's gastrointestinal complaints were most likely the result of stress related to his military service and meeting the demands of his military requirements. It is not disputed that the Veteran had gastrointestinal problems dating back to the 1990s, as noted by Dr. K.C. Indeed, there is ample evidence showing treatment for gastrointestinal issues since that time, including the service-connected GERD and ulcers. Nonetheless, IBS was not shown until after 2000. It is important for the Veteran to understand that IBS is not an "injury" during the limited periods of active service (an example being a leg injury caused by a fall during weekend training). Simply having the problem while the Veteran is in the National Guard is not enough. The record as well does not otherwise contain a medical opinion relating the Veteran's IBS to active duty service or a period of ACDUTRA. On VA examination in July 2008, the Veteran reported a history of onset of IBS symptoms in 1995 with diarrhea, gas, and pain. Reportedly, the Veteran was seen by a gastroenterologist who diagnosed IBS. He also related a history of acid reflux, stomach ulcers, and diverticulitis. On VA examination in December 2015, the Veteran reported that he was diagnosed with IBS at the same time as he was diagnosed with the service-connected GERD in 1988. He contended that both disorders had onset in 1990-1991 while stationed in Germany, thus they should both be service connected. Following a review of the claims file and an examination of the Veteran, the examiner diagnosed IBS and opined that the condition was less likely than not related to military service. In support of the opinion, the examiner cited to the service treatment records and post-service medical evidence. Specifically, the fact that treatment notes from Dr. K.C. reported that IBS was initially diagnosed sometime in the early 2000s, after discharge from active duty during a period of INACDUTRA. The examiner added that IBS was not worsened during his National Guard service. In December 2016, following a review of the claims file, a VA examiner opined that IBS was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran reported onset of IBS around the same time as GERD and gastric ulcers in 1988 or 1989, and Dr. C.K.'s treatment notes recorded onset of IBS after 2000. Either way, the disease would not have had onset during active duty or ACDUTRA. The Veteran was provided a VA examination related to his IBS in February 2020. At that time, the Veteran reported being diagnosed with IBS about 20 to 25 years earlier. The examiner noted that the Veteran was treated for gastric ulcers in 1988 and GERD in 1988/1989. In a report of medical history in May 1991, the Veteran reported frequent indigestion, but denied stomach, liver, or gall bladder problems. Thereafter in 2004, he sought treatment from a specialist in gastroenterology. In a report of medical history in 2007, the Veteran endorsed a history of frequent indigestion, as well as stomach, intestinal and liver problems, ulcer, gall bladder or gallstones. The examiner opined that IBS was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner stated that a 2004 treatment record showed that the Veteran's abdominal symptoms began in 2004 during inactive duty. On VA examination in November 2020, the Veteran reported onset of IBS in 1991. The examiner, however, noted that while treatment records prior to 2000s showed gastrointestinal complaints and treatment, IBS was not recorded until after 2000. The evidence showed that the Veteran was not started on treatment with medication for IBS until 2002. Following a review of the claims file and an examination of the Veteran the examiner opined that the Veteran's IBS was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while the Veteran reported onset of IBS symptoms in 1991, the evidence failed to document any complaints or treatment for bowel problems until approximately 2002, at which time records reflect that IBS was initially suspected and he was put on Bentyl. Thus, there was a gap of approximately 11 years between Veteran's claimed onset of IBS symptoms during active duty in 1992 and his initial diagnosis of IBS. Therefore, the examiner concluded that it was less likely than not that IBS had onset during active duty, as claimed by the Veteran. The Board finds that the November 2020 VA examiner's medical opinion is highly probative in this matter because it is based on a review of the claims folder, it is consistent with other evidence of record, and considered the Veteran's contentions. The VA examiner's medical conclusion heavily weighs against the claim for service connection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's assertions that he currently suffers from IBS that is related to his active duty service. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether IBS was present, and/or are related to his military service, requires medical expertise that the Veteran has not demonstrated since these disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Additionally, the Board notes that the Veteran suffered from multiple gastrointestinal problems since 1988. Whether the symptoms the Veteran experienced during active duty service or following service are in any way related to the currently diagnosed IBS, as opposed to his other gastrointestinal problems, requires medical expertise to determine because it involves a complex medical matter. Significantly, despite extensive testing prior to 2000, IBS was not diagnosed until thereafter. To the extent the Veteran and Dr. K.C. attributed the Veteran's gastrointestinal issues to stress related to his military service and meeting the demands of his military requirements, nothing in the service treatment records or National Guard records supports a finding that the Veteran was having mental health problems during service. Examination reports throughout service show that he was psychiatrically evaluated as normal and in reports of medical history the Veteran consistently denied nervous trouble of any sort, depression, or excessive worry. In any event, service connection has not been established for a mental health disorder and there is no legal basis upon which to award service connection for a IBS on a secondary basis. See 38 C.F.R. § 3.310. Finally, to the extent the Veteran is seeking compensation under the provisions of 38C.F.R. §3.317 for a disability due to undiagnosed illness or a medically unexplained chronic multi symptom illness occurring in Persian Gulf Veterans, the Veteran did not serve in Southwest Asia during the Persian Gulf War and is not entitled to presumptive service connection under 38 C.F.R. § 3.317(a). As the preponderance of the evidence is against the claim, the claim for service connection for IBS is denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for residuals of left hip replacement 3. Entitlement to service connection for arthritis of the joints The Veteran seeks service connection for residuals of left hip replacement and arthritis of the joints, to include as secondary to low back disability. The service treatment records for the periods of active duty fail to document arthritis of multiple joints, and in reports of medical history, the Veteran denied a history of arthritis. An emergency room treatment note in December 2005, shows that the Veteran presented with complaints of abdominal pain. Imaging studies revealed mild to moderate degenerative osteoarthritis of both hips. Private treatment records in January 2007, show the Veteran presented with complaints of sudden left hip pain for two months. Imaging in 2007 studies revealed mild degenerative arthritis of left hip. In January 2007 K.C. noted degenerative changes of the spine and joints. In September 2007, the Veteran reported a history of left hip pain for at least three years. The Veteran underwent left hip replacement in October 2008. A VA examination report in July 2008, noted the Veteran's report of generalized arthritis of the joints, hips, and knees, having onset in the 1990s. Imaging studies revealed arthritis of the hips, right knee, left femur and neck. In November 2020, a VA examiner noted that the service treatment records failed to show joint arthritic conditions. Following a review of the claims file the examiner opined that the claimed arthritis of the joints was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based the opinion on the fact that the Veteran was not diagnosed with arthritis of the joints during active duty service, or within one year of discharge from active duty service in 1992. Additionally, there was no evidence of joint injuries while in service. Concerning the left hip, the VA examiner reported that degenerative changes of the lumbar spine were known to decrease lumbar lordosis and limit lumbar flexion and extension, leading to altered pelvic mechanics and increased demand for hip motion. This alteration in biomechanics would cause increased wear and tear that would aggravate the residuals of total left hip replacement. In January 2021, a VA examiner reviewed the evidence of record and opined that the Veteran's arthritis of the joints and left hip disability was not caused or aggravated by the Veteran's back disability. The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance. Concerning the residuals of the left hip replacement, the Board is of the opinion that this point has been attained, based on the medical opinion of the VA examiner in November 2020, which supports a finding that the Veteran's now service-connected back disability aggravated the residuals of left hip replacement. The Board acknowledges that the VA examiner in January 2021 provided a negative nexus opinion. However, as the balance of positive and negative evidence is in relative equipoise, the benefit of the doubt rule applies. Thus, secondary service connection is warranted. See 38 C.F.R. §§ 3.310, 3.102; Gilbert, supra. As the Board has granted secondary service connection it need not address direct service connection, or any other theories for service connection, in this matter. With regards to the Veteran's claim for service connection for arthritis of the joints, the record does not reflect that a disability manifested by multiple joint arthritis during the Veteran's periods of active duty service, arthritis was not shown within one year following discharge from active duty service in 1992. Additionally, there is no indication that the claimed condition developed during a period of ACDUTRA, nor were joint injuries recorded during INACDUTRA. On the question of a nexus between arthritis of the joints and service and/or a service-connected disability, the weight of the evidence is against the claim. The VA examiners in November 2020 and January 2021, provided evidence against the claim on a direct and secondary basis. The Board finds the opinion of the VA examiners in 2020 and 2021 to be highly persuasive and probative in finding that the evidence does not support a conclusion that arthritis of the joints was caused or aggravated by service or the service-connected back disability. The examiners' findings were based on a review of the evidence, including the service treatment records and examination reports. The examiners considered the complete record and the Veteran's contentions, and provided reasoning that is supported by the record. See Nieves-Rodriguez, 22 Vet. App. at 304. Significantly, there is no competent medical opinion of record linking arthritis of the joints to service or a service connected disability. The Board has considered the statements from the Veteran asserting that his arthritis of the joints had onset during active duty service or was caused or aggravated by the back disability. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot self-diagnose because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); See Jandreau, 492 F.3d at 1377. The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. The Board can not ignore the evidence of the VA examiners. Additionally, to the extent the Veteran is asserting continuity of symptomatology from active duty service (which is not entirely clear), the Board finds such statements inconsistent with the overall record. In this regard, treatment records during service failed to document any complaints of arthritis or joint stiffness until after 2005, and the Veteran consistently denied a history of arthritis in reports of medical history while on active duty. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against his claim for service connection for arthritis of the joints. As the preponderance of the evidence weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claims for service connection for arthritis of the joints must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. (Continued on the next page) (Continued on the next page) John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.