Citation Nr: 22013705 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-46 748 DATE: March 10, 2022 ORDER Service connection for a disorder manifested by constipation is denied. Service connection for a headaches disorder is denied. FINDINGS OF FACT 1. The Veteran's disorder manifested by constipation did not have its onset in service, did not manifest within one year of service, was not caused by an in-service event, injury, disease, nor was it caused or aggravated by any service-connected disability. 2. The Veteran's headaches disorder did not have its onset in service, did not manifest within one year of service, was not caused by an in-service event, injury, disease, nor was it caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a disorder manifested by constipation have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a headaches disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1982 to April 1986 and from March 1987to October 1993, including service in the Persian Gulf, and his decorations include the Southwest Asia Service Medal. In addition, he served in the Reserve and National Guard. This matter come before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in April 2019, May 2020, November 2020 and June 2021 decisions for further development. In April 2019, the Board denied service connection for constipation and for headaches. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate and remand the April 2019 Board decision as to the issues of entitlement to service connection for constipation, headaches, and a cervical spine disability. An order memorializing the JMPR was issued by the Court in February 2020. In May 2020, the Board denied entitlement to service connection for a cervical spine disability and remanded the claims to service connection for constipation and headaches, in accordance with the January 2020 JMPR. In November 2020 and June 2021 Board decisions, the matters were again remanded to obtain additional rationale and supplemental clarifying opinions. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for a disorder manifested by constipation The Veteran contends that he has chronic constipation, primarily as a result of an undiagnosed illness or multi-symptome illness following his exposure to toxic substances during the Persian Gulf War. The Veteran's service treatment records including the reports of his service entry into and separation from his first period of active duty, show that he denied that he then had or had ever had, a frequent indigestion or stomach, liver, or intestinal trouble of any kind. The Veteran reported rectal pain/discomfort associated with prostatitis in December 1991, and in December 1992, he reported perineal pain and rectal discomfort; however, the examination showed normal results. The Veteran's November 1993 service separation examination and April 2004 Reserve entrance examination showed that his abdomen and viscera and anus and rectum were normal. The Veteran's constipation was first manifested in January 2010 during treatment ator through Center Grove Family Medicine. To the examiner, it appeared to be related to medication the Veteran was taking for his non-service-connected Buerger's disease. He was reportedly taking a stool softener every evening. He reported constipation again in December 2011and was treated for an anal fissure in June 2012. However, during treatment at Center Grove Family Medicine in February 2013, it was noted that the Veteran's constipation was occasional in nature. Moreover, during his October 2013 VA examination, the examiner noted that the Veteran did not have episodes of bowel disturbance with abdominal distress; the Veteran acknowledged that stool softeners had corrected the constipation. The VA examiner noted that constipation had a specific etiology unrelated to a specific exposure event experienced by the Veteran during service in Southwest Asia. During a May 2018 VA examination by a different VA examiner, the Veteran reported constipation two to three times a week and abdominal distention. However, the examiner noted that the Veteran had no evidence of weight loss, malnutrition, or serious complications or other general health effects attributable to his intestinal condition. Following the examination, the examiner opined that it was less likely than not that chronic constipation was incurred in or caused by a specific exposure event experienced by the Veteran during service in the Gulf War theater, or which is due to the treatment for rectal pain treated in December 1992 while the Veteran was in-service. The parties to the January 2020 JMPR, which was granted by the Court's order, agreed that the May 2018 VA medical opinion was inadequate because the examiner merely provided conclusionary statement without a clear rationale for the opinion rendered. In explaining the rationale for the negative opinion, the examiner listed all of the possible factors for constipation but did not clearly explain what factors were applicable to the Veteran or why a nexus to service was unlikely. The Board further noted in May 2020 that the examiner's rationale statement concluded with an opinion that conflicted with the earlier negative nexus opinion. The Board remanded the matter to afford the Veteran a new VA examination to discuss the Veteran's in-service treatment and determine whether his claimed constipation is related to that treatment or any other in-service events or risk factors. The Veteran was afforded a VA examination for intestinal conditions in May 2020 in which he reported a history of abdominal distention 5-6 times a week, daily constipation, and frequent episodes of bowel disturbance with abdominal distress. The VA examiner in May 2020 noted that it is less likely than not that the Veteran's constipation was incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that the Veteran's previous symptoms of constipation in service in December 1991 were acute in nature and would not be related to current findings, noting in-service the Veteran was diagnosed with inflammation of the prostate and that his current chronic constipation is unrelated to military service. In the November 2020 Board decision, the Board stated it could not make a fully informed decision on the issue of entitlement to service connection for constipation between no VA examiner fully opined as to direct service connection, to include environmental exposures while serving in Southwest Asia. The Board concluded that the May 2020 VA examiner failed to provide a thorough rationale for the conclusions reached and fully address the Veteran's lay statements that his symptoms of chronic constipation began in-service and continued since. In addition, the examiner failed to fully address whether the Veteran's chronic constipation is directly caused by his service in Southwest Asia and exposure to environmental toxins to include whether his symptoms constitute a medically unexplained chronic multi-symptom illness (MUCMI) a diagnosed illness without conclusive pathophysiology or etiology. Therefore, the matter was remanded for a supplemental VA opinion. Post-remand, a VA examiner opined in February 2021 that it is less likely than not that the Veteran has a diagnosis of chronic constipation that was incurred in or caused by service and environmental exposure in Southwest Asia during service; the examiner held that constipation is a multifactorial condition that many times is temporary and situationally based and there is no contemporaneous or substantive objective evidence in the claims file to support an association between the constipation and service in Southwest Asia, to include none of the Veteran's enlistment or separation physicals mentioning any bowel or gastrointestinal issues. In a March 2021 Correspondence, the Veteran further asserted that his constipation condition was secondarily related to his service-connected atrial fibrillation, atrial flutter and obstructive sleep apnea. In the April 2021 written argument, the Veteran's representative, The American Legion, contended that his constipation began while in active duty and argued that the February 2021 VA examiner did not explain how the Veteran's constipation had an unexplained spontaneous cure and an unexplained but somehow unrelated post-service recurrence. The written argument also provided a link to medical literature that suggested psychological trauma was linked to bowel disorder and asserted that the constipation could be secondarily linked to Veteran's service-connected psychiatric disability. In June 2021, the Board concluded that although opinions were obtained in November 2020 regarding whether disorders manifested by constipation were related to service, the record would benefit if additional rationale was obtained, and the matter was again remanded. The Veteran was provided a VA examination for intestinal condition in July 2021, and he was not diagnosed with an intestinal condition. He reported bowel movements once every two to three days with use of over-the-counter stool softener. The VA examiner concluded that the Veteran does not meet the diagnostic criteria for chronic constipation. The examiner explained that The American Gastroenterological Association defines constipation as being infrequent bowel movements (less than three per week) or difficulty in passing stools. The examiner indicated that the Veteran described having scrublous hard stools (small balls often packed together) but does not have difficulty in elimination and does not have fewer than three bowel movements per week. The examiner added that the Veteran's recollection and contention is that his bowel pattern was established while on active duty; however, the examiner held that the medical records contradict his recollection as the Veteran denied problems with the gastrointestinal tract in the 2004 National Guard report of medical history, and medical records submitted by the Veteran indicated occasional constipation had its onset in 2013. The examiner added that a review of a one-day diet would support that the Veteran's bowel complaints are the result of dietary patterns that do not promote bowel regularity. The Veteran's complaints relative to bowel elimination are not an illness or disability, it was not incurred in service, and it is not related to the in-service complaints of rectal pain that were associated with prostatitis as the prostate is located anterior to the rectum and referred pain to the rectum is not uncommon. Rather, the examiner opined that Veteran's complaints relative to fecal elimination are not in any way etiologically related to military service, to include the Persian Gulf service, and it is also not secondary to or aggravated by in-service condition, event, or exposure. The Board acknowledges that the Veteran contends that his chronic constipation had its onset in service and is proximately caused by his service-connected disabilities. In this regard, the Veteran is certainly competent to report his symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (veteran is competent to testify as to symptomatology capable of lay observation). However, the Veteran has denied having a condition manifested by constipation for many years after his second period of service. Moreover, consistent with the findings in Miller v. Wilkie, 32 Vet. App. 249 (2020), the VA examiners acknowledged the Veteran's report of constipation since service and noted the inconsistent account in the negative nexus opinions of record. While the Veteran is competent to report his symptoms, his account of constipation since service is inconsistent with the contemporaneous lay and medical evidence. As such, the Board gives more probative weight to the VA examiners' medical opinions than the Veteran's lay contentions. In sum, the preponderance of the competent, credible, and probative evidence indicates that the Veteran's constipation disorder is not related to service or caused or aggravated by any service-connected disability. The evidence of record does not show that the Veteran has had recurrent constipation issues since he separated from service. Accordingly, the claim for service connection for a disorder manifested by constipation is denied. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a disorder manifested by constipation is warranted. Rather, the evidence persuasively weighs against a grant of service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. Service connection for a headaches disorder The Veteran asserts that his headaches are a result of a head injury sustained in a 1990 motor vehicle accident (MVA) while in service, while also contending that they are the residuals of his experiences in the Persian Gulf War. The reports of the Veteran's medical history at the time of his entry into his first period of active duty shows that he denied that he then had or had ever had, frequent or severe headaches of any kind. Physical examinations of his head, face, neck, and scalp, as well as his neurologic processes were normal. In August 1984, the Veteran complained of a headache in association with a viral syndrome and, in May 1985, he complained of a headache in association with coryza. However, there were no findings of a chronic, identifiable headache disability during the remainder of his first period of service, and during his service separation examination, his head, face, neck, and scalp, as well as his neurologic processes were, again, found to be normal. The entrance examination prior to his second period of active duty was, similarly, normal. During his second period of active duty, the Veteran reported that he had headaches in September 1988 following a typhoid shot and again in association with a viral syndrome. Sinus headaches were noted in December 1988 in association with an upper respiratory infection. As above, however, there were no findings of a chronic, identifiable headache disability. Indeed, during his 5-year examination in November 1992, his September 1993 service separation examination, and his April 2004 entry examination for the Reserve, the Veteran denied that he then had, or had ever had frequent or severe headaches. Each time, his head, face, neck, and scalp and neurologic processes were found to be normal. Following his VA examinations in October 2013 and May 2018, the relevant diagnoses were migraine headaches and cluster headaches. It was noted that they had first been manifested years after service and that it was less likely than not that they were related to service. The May 2018 VA examiner noted that the Veteran's headaches were not post-traumatic in nature. In this regard, the Board noted in its April 2019 decision that in May 2015, VA examined the Veteran to determine whether he had the residuals of a traumatic brain injury (TBI). Following the examination, the examiner found that the Veteran did not then have, nor had he ever had, a TBI. The AOJ subsequently denied entitlement to service connection for the residuals of a TBI. The January 2020 JMPR, which was granted by the Court, reflects that the parties' agreement that the Board failed to provide an adequate statement of reasons or bases in denial of the service connection claim and failed to discuss all "potentially applicable" provisions of law and regulation, to include direct service connection. The Board acknowledges that in May 2020 that the May 2018 VA examiner noted the Veteran's lay statements supporting that his headaches began in-service but accepted that the headaches had existed prior to service in rationalizing the negative nexus opinion. As such, the presumption of soundness attaches, and the Veteran is presumed sound at entry; thus, it was improper to find that service connection was not warranted due to a pre-existing disability. The Board remanded the matter to afford the Veteran a new VA examination to determine the nature and etiology of the Veteran's headaches. The Veteran was provided a VA examination for headaches in May 2020, in which he was diagnosed with migraines and reported ongoing headaches two to three times a month. The VA examiner in May 2020 noted that it is less likely than not that the Veteran's headaches were incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that he Veteran's previous in-service symptoms were related to acute illness including mild headaches and sinus headaches which resolved and that the Veteran's current headaches are less likely than not related to his military service. In November 2020, the Board determined that it could not make a fully informed decision on the issue of entitlement to service connection for headaches because no VA examiner fully opined as to direct service connection, to include environmental exposures while serving in Southwest Asia. The Board noted that the May 2020 VA examiner failed to provide a reasoned rationale for the negative nexus opinion and to fully address the Veteran's contentions that his headaches are directly caused by his service in Southwest Asia to include whether his symptoms constitute a medically unexplained chronic multi-symptom illness (MUCMI) a diagnosed illness without conclusive pathophysiology or etiology. Therefore, the matter was remanded for a supplemental VA opinion. Post-remand, a VA examiner opined in February 2021 that it is less likely than not that the Veteran has a diagnosis of headaches that was incurred in or caused by service and environmental exposure in Southwest Asia during service. The examiner held that the Veteran has suffered from headaches and migraines as far back as in 1982 based on the service treatment records and medical records in the file and also was in a MVA in 1990 and there was evidence of concern for a TBI based on that accident. There is no contemporaneous or substantive objective evidence in the claims file to support an association between the headaches and service in Southwest Asia, to include none of the Veteran's enlistment or separation physicals mentioning any headaches. In a March 2021 Correspondence, the Veteran further asserted that his headaches condition was secondarily related to his service-connected posttraumatic stress disorder (PTSD), atrial fibrillation, atrial flutter and obstructive sleep apnea. In the April 2021 written argument, The American Legion maintained that the Veteran's headaches began while in active duty and argued that the February 2021 VA examiner did not explain how the Veteran's headaches had an unexplained spontaneous cure and an unexplained but somehow unrelated post-service recurrence. The written argument also provided a link to medical literature that suggested headaches have a medical link to sleep apnea and evidence suggested a link between PTSD and chronic headaches. Another article mentioned discussed that stressor events for PTSD appear to be directly associated with migraines; the Veteran asserted that the headaches could be secondarily linked to Veteran's service-connected psychiatric disability. In June 2021, the Board concluded that although opinions were obtained in November 2020 regarding whether chronic headaches were related to service, the record would benefit if additional rationale was obtained, and the matter was again remanded. In July 2021, the Veteran was afforded a VA examination for headaches, in which he was not diagnosed with a headache condition. Veteran reported current headaches as related to stress starting in neck radiating towards right side of forehead, occurring twice weekly and resolved with ASA and relaxation. He also stated he has headaches of a different character that start over the right eye with rapid onset with bilateral eye watering that last a matter of minutes to two hours. He stated that the headaches do not interfere with work. The VA examiner stated that the Veteran's recollection and contention is that his headaches were present while on active duty, but the medical records contradict his recollection. In the 2004 National Guard report of medical history, the Veteran denied headaches and medical records submitted by the Veteran indicated that his first complaints of headaches were in 2009. The Veteran did present for viral syndromes that included headache as a symptom; but this is not considered the equivalent of a headache syndrome. The examiner concluded that Veteran's current description of his headaches, which he associated with stress and work as well as the nature of his work, was suggestive of muscle tension headaches. The VA examiner noted that reported frequency of headaches is significantly different than that reported in 2015 and it is noted that the Veteran does not endorse headaches in primary care appointments at the VA. The VA examiner subsequently opined that the Veteran's complaints of headaches were not incurred during service and are not etiologically related to service, including the motor vehicle accident in which he sustained a scalp laceration, and Persian Gulf service. The examiner also opined that the headaches are not secondarily caused or aggravated by any in-service condition, event, or exposure and the MVA would not result in headaches more than a decade after the accident. The Board acknowledges that the Veteran contends that his chronic headaches had its onset in service and is proximately caused by his service-connected disabilities. In this regard, the Veteran is certainly competent to report his symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (veteran is competent to testify as to symptomatology capable of lay observation). However, the Veteran has denied having a headaches disorder for many years after his second period of service. Moreover, consistent with the findings in Miller v. Wilkie, 32 Vet. App. 249 (2020), the VA examiners acknowledged the Veteran's report of headaches since service and noted the inconsistent account in the negative nexus opinions of record. While the Veteran is competent to report his symptoms, his account of headaches since service is inconsistent with the contemporaneous lay and medical evidence. Consequently, the Board gives more probative weight to the VA examiners' medical opinions than the Veteran's lay contentions. In sum, the preponderance of the competent, credible, and probative evidence indicates that the Veteran's headaches are not related to service or caused or aggravated by any service-connected disability. The evidence of record does not show that the Veteran has had recurrent issues with chronic headaches since he separated from service. Accordingly, the claim for service connection for headaches is denied. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for headaches is warranted. Rather, the evidence persuasively weighs against a grant of service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.