Citation Nr: 22018909 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-58 964A DATE: March 30, 2022 ORDER Entitlement to service connection for gastroenteritis is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDING OF FACT The evidence of record weighs persuasively against finding that the Veteran has had gastroenteritis since the filing of this claim or proximate to that, much less because of his service or service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for gastroenteritis. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1988 to May 2008. This appeal to this Board of Veterans' Appeals (Board) is from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In October 2019, the Board granted the Veteran's claim of entitlement to service connection for gastroesophageal reflux disease (GERD) with hiatal hernia. However, the Board instead remanded these claims for service connection for gastroenteritis and bilateral pes planus (flat feet) back to the RO, so back to the AOJ, for further development and consideration. That additional development since has been completed, as directed, at least as concerning the claim for gastroenteritis. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). So, the Board is now deciding the claim for gastroenteritis. But the same cannot be said for the claim for bilateral pes planus, so the Board is again remanding this other claim. The Veteran had a "virtual" teleconference hearing in November 2021, concerning both claims, before the undersigned Veterans Law Judge (VLJ) of this Board. A transcript of the hearing is of record. Entitlement to service connection for gastroenteritis is denied. The Veteran contends his symptoms of chronic diarrhea and epigastric pain are owing to gastroenteritis, which he in turn attributes to his military service. Alternatively, he argues that his symptoms should be considered an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) due to his service in Southwest Asia. He received the Southwest Asia service medal, a Kuwait Liberation medal, and countless other awards and commendations evidencing qualifying service in Southwest Asia. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 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 relevant disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection also may be granted presumptively when there are 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, 2026. 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 an MUCMI. 38 C.F.R. § 3.317(a)(2)(i). The term "chronic" means that the disability has existed for six months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). An illness is an MUCMI when either the etiology or the pathophysiology of the illness is inconclusive but is not an MUCMI when both the etiology and the pathophysiology of the illness are partially understood. See Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medical unexplained. An MUCMI 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). Pathophysiology" is defined as "the physiology of abnormal states; spec[ifically]: the functional changes that accompany a particular syndrome or disease." Webster's Third New International Dictionary of the English Language Unabridged 1655 (1966). The determination of whether a condition is an MUCMI must be based on an individual Veteran's circumstances, rather than the illness as it is understood in the general public. Most fundamental to this claim at hand, however, is the Veteran first establishing he has this claimed disability else, for all intents and purposes, there is no current disability to, in turn, relate or attribute to his military service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there necessarily can be no valid claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). As an initial matter, the Board sees the Veteran's service treatment records (STRs) reflect complaints of stomach pain, vomiting, and diarrhea, also show a diagnosis of gastroenteritis in July 1993. He has both testified and submitted a written pleading indicating that he has experienced chronic diarrhea since his service that causes three to four loose, liquid, or watery bowel movements per day resulting in dehydration. The Board observes, however, that a May 2009 VA examination just approximately a year after his separation indicates he reported no history of diarrhea. Similarly, a June 2012 VA treatment, so from some 3 years later, also notes there were no then recent changes to bowel habits. The report of a November 2016 VA examination notes epigastric pain with bloatedness, heartburn, and an acidic, metallic taste for which he was given Tums. There again was no mention of diarrhea. Similarly, treatment notes from a primary care visit in March 2017 recount his history of heartburn and acid taste in his mouth but do not note diarrhea on his chronic problems list or otherwise mention it in the context of his significant health issues. In September 2017, a VA treatment note concerning gastrointestinal (GI)/Digestive issues indicates he continued to experience heartburn but made no mention of diarrhea. In October 2016, the Veteran had a VA compensation examination to assess the current nature and etiology of his claimed stomach conditions. After examination, the examiner diagnosed gastric ulcer and duodenal ulcer, also related these conditions to the Veteran's military service. And, indeed, it was partly, if not primarily, because of that examination and supporting medical opinion that service connection since was granted for the gastric ulcer with duodenal ulcer (now with GERD with hiatal hernia). The Veteran did not, however, report during that examination experiencing any diarrhea. In November 2017, the Veteran had another VA compensation examination to reassess his claimed stomach conditions, and the examiner confirmed the diagnoses of gastric ulcer and duodenal ulcer but did not provide any additional opinion regarding diagnosis and/or etiology of the Veteran's additionally claimed gastroenteritis. But no symptoms of diarrhea were noted during this examination, either. In January 2018, the Veteran was treated for bloody stools; however, treatment notes indicate he continued to deny diarrhea and constipation. Following remand of this claim in October 2019, the Veteran had an additional VA compensation examination in July 2020, at the conclusion of which the diagnoses of gastric ulcer and duodenal ulcer again were confirmed. It is worth repeating that service connection already has been granted for these conditions (now in the guise of GERD with hiatal hernia). The July 2020 examiner acknowledged the Veteran's complaints of chronic epigastric pain, however, indicated there was no pathology present for a separate diagnosis of gastroenteritis. Instead, this examiner explained the Veteran's recurrent abdominal pain, which is well documented in his treatment records, is attributable to his already service-connected peptic ulcer disease (i.e., his gastric and duodenal ulcers). This examiner further explained that, according to established medical literature, gastroenteritis is a self-limiting condition caused by viral infection. Therefore, while the Veteran contends that he experiences chronic diarrhea as a result of this additional stomach condition, the evidence of record, including his VA treatment notes and examinations, do not support this contention. As for the Veteran's additional contention that he has an undiagnosed illness or MUCMI as a result of his service in Southwest Asia, for purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) an MUCMI; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The Veteran has a known diagnosis of peptic ulcer disease (PUD), and the VA examiner has attributed the Veteran's symptoms to that known diagnosis. The most probative evidence is against finding that he has an undiagnosed illness (to the contrary, it in fact has been diagnosed as peptic ulcers, more specifically, gastric and duodenal that are now under the guise of GERD with hiatal hernia). He also does not have an MUCMI since his epigastric pain is not part of a multi-symptom illness. Thus, while the Veteran's STRs show a diagnosis of gastroenteritis, it is not shown that he has continued to have this condition (i.e., that it is "chronic"), as partly evidenced by the fact that his post-service treatment records and his personal lay statements clarify his recurrent abdominal pain and distress, instead, has been attributed to his PUD (gastric and duodenal ulcers now in the guise of GERD with hiatal hernia). Since a layman, he cannot provide probative opinion attributing his symptoms to a particular diagnosis and, in turn, linking them to his service or service-connected disability. See Kahana v. Shinseki, 24. Vet. App. 428 (2011) (explaining that whether medical versus lay evidence is needed to support a claim is a case-by-case, i.e., fact specific, determination based on the type of condition being claimed in terms of whether simple or instead complex). While the Board acknowledges the Veteran's contention that he has an additional medical condition causing chronic epigastric pain and chronic diarrhea, this has not been confirmed objectively even after the additional examination on remand. So, he has not met the most essential element of this claim by first establishing he has this claimed condition or has at some point since filing this claim or proximate to that. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997). Because there is no evidence of an additional diagnosis of gastroenteritis so, in other words, an additional disability beyond the disability (PUD, now GERD with hiatal hernia) for which he is already being compensated upon which benefits could be granted, the appeal for compensation for this additionally claimed disability (gastroenteritis) is denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In denying this claim, the Board finds the benefit of the doubt doctrine is not applicable because there is not an "approximate" (nearly equal) balance of evidence for versus against this claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to service connection for bilateral pes planus is again remanded. During his hearing, the Veteran testified that he began experiencing foot pain in 2010, approximately two years after separating from service. He explained that he has difficulty standing because of pain in the middle of his foot. He is competent to testify concerning his foot pain and the impact of it. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran initially had a VA compensation examination concerning this claim in October 2016, which the Board subsequently found inadequate in turn prompting the Board's remand of this claim in October 2019. During the additional July 2020 VA examination that the Veteran resultantly had, the examiner noted there was no diagnosis or treatment for bilateral (meaning left and right foot) pes planus until October 24, 2016, when X-rays during the prior VA examination confirmed pes planus and calcaneal spurs. Consequently, the July 2020 examiner (like the prior October 2016 examiner) provided an unfavorable nexus opinion based on the length of time between conclusion of the Veteran's service and his eventual diagnosis and treatment. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy period following his service during which there was no clinical documentation of the claimed disorder). As the Board previously explained, however, this claim is not predicated on the notion of direct incurrence of this condition during the Veteran's service since it was "noted" during his military enlistment examination. Hence, he had this condition, even then, when beginning his service. Therefore, this claim, instead, is predicated on the alternative notion that his service aggravated this pre-existing condition meaning worsened it beyond its natural progression. And, to this end, an examiner has not, however, considered the Veteran's hearing testimony under oath attesting that he experienced foot pain to a greater extent as early as just two or so years after separating from the military, thus, prior to when objectively indicated according to the most recent July 2020 VA examiner. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that lay evidence is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as treatment records. So, the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc); Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). That said, the Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). More medical comment (an addendum opinion) consequently is needed to better assist in determining whether the Veteran's service aggravated his pre-existing bilateral pes planus again, meaning worsened it beyond its natural progression. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain additional medical comment (addendum opinion) concerning whether the Veteran's military service aggravated his pre-existing bilateral pes planus meaning worsened it beyond its natural progression? *In responding, the examiner's attention is directed to the Veteran's November 2021 hearing testimony attesting that he experienced foot pain to a greater extent just two years after separating from service, even though the July 2020 VA examiner concluded there was no diagnosis or treatment until more recently in October 2016 (when the Veteran had his initial VA examination). *Thus, it first must be accepted the Veteran had bilateral pes planus even when beginning his service in May 1988 since it was "noted" during his induction examination. So, the determinative issue, instead, is whether his service aggravated this pre-existing condition meaning worsened it beyond its natural progression. Hence, if there is reason to believe there should be more documentation of this condition during the Veteran's service and in the years prior to October 2016, such as in the way of treatment, the examiner must provide more explanation of why this is a reasonable expectation. In other words, the examiner cannot merely equate the absence of treatment with the absence of symptoms. [**NOTE: Whether the Veteran needs to be re-examined (meaning undergo another in-person examination) to provide this additional medical comment on this determinative issue of aggravation is left to the discretion of the clinician designated to provide the addendum opinion.] To assist in making this important determination, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.