Citation Nr: 23026432 Decision Date: 05/05/23 Archive Date: 05/05/23 DOCKET NO. 11-07 469 DATE: May 5, 2023 ORDER Entitlement to service connection for a recurrent gastrointestinal disability to include irritable bowel syndrome (IBS), also claimed as the result of exposure to Persian Gulf War environmental hazards, is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his current recurrent gastrointestinal disability to include IBS began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a recurrent gastrointestinal disability, to include IBS, also claimed as the result of exposure to Persian Gulf War environmental hazards, have been met. 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 in the U.S. Army from January 2001 to April 2001, September 2004 to July 2005, and April 2007 to July 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in December 2017, December 2020, and May 2022. In May 2022, the Board remanded these matters to complete additional development, including to obtain outstanding private and VA treatment records. After completing additional development, the RO issued an October 2022 Supplemental Statement of the Case denying entitlement to service connection for IBS and right shoulder disability, and returned these matters to the Board for appellate review. The Board notes that pertinent evidence has been associated with the claims file since the October 2022 Supplemental Statement of the Case, which includes the January 2023 private medical opinions and the November 2022 lay statements. The Board may not consider this evidence in the first instance and must be referred to the agency of original jurisdiction (AOJ), unless this procedural right is waived by the Veteran, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal. 38 C.F.R. § 20.1305(c). The Board notes that in an April 2023 correspondence, the Veteran through his authorized representative waived this procedural right; hence, a referral to AOJ to consider this pertinent evidence is not required, and the Board may proceed with adjudicating the appeal on merit. Id. Entitlement to service connection for a recurrent gastrointestinal disability to include IBS, also claimed as the result of exposure to Persian Gulf War environmental hazards. The Veteran contends that he has a gastrointestinal disability to include IBS, which began during active service and is directly related to his active service, to include due to exposure to Persian Gulf War environmental hazards. 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; 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt should be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt should be resolved in favor of the claimant. See 38 C.F.R. § 3.102. Thus, the question for the Board is whether the Veteran has a current gastrointestinal disability to include IBS that began during active service or is at least as likely as not related to an in-service injury, event, or disease, to include due to exposure to Persian Gulf War environmental hazards. The existence of a current gastrointestinal disability is not in question. In a February 2023 private opinion, the examiner noted that the Veteran has a diagnosis of IBS. Also, several VA treatment records noted the Veteran received treatment for diarrhea and abdominal pain. As far as in-service incurrence of a gastrointestinal disability is concerned, the Board notes that several service treatment records, including the December 2004, February 2005, March 2005, June 2005, December 2006, June 2007, December 2007, and January 2008 treatment records, noted abdominal pain, nausea, and diarrhea. Thus, the second element of service connection, an in-service injury, event, or disease, has been met. Thus, the question becomes whether the Veteran's current gastrointestinal disability to include IBS began during his active service or is at least as likely as not related to an in-service injury, event, or disease, including the in-service gastrointestinal problems. On this question there is evidence in favor of and against the claim. The evidence against the claim includes a December 2016 VA medical opinion, in which the examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a supporting rationale, the examiner stated there is no evidence of a chronic condition causing diarrhea or other intestinal complaints, but rather intermittent complaints of unrelated episodes of acute gastroenteritis. Furthermore, the examiner stated that the Veteran has been seen sporadically for acute gastroenteritis since January 2001 and has been treated symptomatically with resolution of symptoms. Acute gastroenteritis is typically viral and self-resolves without treatment in less than two weeks. There is no evidence of any complaints of diarrhea or an intestinal condition (even including acute complaints) since January 2013. In a September 2021 VA medical opinion, the examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the supporting rationale, the examiner noted several service treatment records and post service treatment records until 2013, treating the Veteran's gastrointestinal symptoms, including diarrhea. The examiner stated that the episodes of diarrhea were reported episodically and of acute duration throughout records. Diagnoses rendered in records included acute gastroenteritis/viral etiologies, both of which typically are acute and resolve spontaneously. Chronic diarrhea is a diagnosable condition, and is typically diagnosable condition once workup has been pursued. Therefore, the Veteran's reports of episodic diarrhea during service and post service related to acute gastroenteritis/viral etiologies, as diagnosed throughout records. The Board finds the December 2016 and September 2021 VA medical opinions inadequate because the examiners did not address several service treatment records and post-service treatment records noting gastrointestinal symptoms during and after service, including VA treatment records after January 2013. Furthermore, VA examiners did not note diagnosis of IBS, whereas, the Board notes that VA and private treatment records noted the diagnosis of IBS. The evidence in favor of the claim includes two February 2023 private positive nexus opinions noting that the Veteran has IBS that began during active service and related to exposure to various environmental hazards. One of these opinions is from private examiner S. G. J., in which the examiner stated that the Veteran was seen on several occasions for IBS, and most recently he was seen in January 2023. The examiner explained that the Veteran constantly experiences abdominal pain and bloating; however, flare-ups further exacerbate his pain. The examiner also noted that the Veteran suffers with alternating spells of diarrhea and constipation, and has to go to restroom frequently. Finally, the examiner stated that after a detailed review of the Veteran's history, it has been determined that his IBS manifested while the Veteran was an active duty service member, and most likely etiology is exposure to various environmental hazards. Also, in a February 2023 private medical opinion, the examiner B. K. K., stated that the Veteran was seen by gastroenterologist, and a diagnosis of IBS was given. The examiner noted that during flare-ups the Veteran has diarrhea for 3 to 4 days in a row, which happens about 4 times per month. Symptoms also include bloating and abdominal pain. The Veteran also has fecal incontinence that can impact both personal and professional life. The examiner stated that IBS can have multiple triggers, and the Veteran had exposure to burns pits, diesel fuels, depleted uranium, and sandstorms during his service in Iraq from 2007 to 2008. The examiner concluded that these exposure likely contributed to the Veteran's gastrointestinal symptoms. The Board finds that the February 2023 private medical opinions are adequate and have great probative value because these are based on an accurate medical history and contain detailed supporting rationales with clear conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran's medical history is replete with gastrointestinal symptoms. Service treatment records from December 2004, February 2005, March 2005, June 2005, December 2006, June 2007, December 2007, January 2008, and February 2008; and post service treatment records from September 2009, November 2009, July 2011, November 2011, December 2011, January 2013, February 2015, May 2019, June 2019, January 2022, and February 2022 noted abdominal pain and diarrhea. One of these records noted blood in stool. Also, a May 2019 VA treatment record indicated that the Veteran has IBS, and his digestive issues began during his active service. Finally, the evidence in favor of the claim includes the October 2022 lay statements from the Veteran's wife and a friend reporting that the Veteran has gastrointestinal problems, including diarrhea and constipation since 2008. Consequently, the Board finds the evidence of record is in favor or at least be in equipoise as to whether the Veteran's current IBS incurred in service or is directly related to his active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a recurrent gastrointestinal disability to include IBS is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a right shoulder disability is remanded. In December 2020, the Board remanded the matter to obtain a medical opinion on the claimed right shoulder condition. The Board specifically directed the examiner to provide an opinion as to whether the Veteran's claimed right shoulder disability is directly related to his active service or secondary to any of the service-connected disabilities. The Board also directed the examiner to provide an opinion as to whether the Veteran's right shoulder disability underwent any incremental increase, regardless of its permanence, due to a service-connected disability. Consequently, the Veteran underwent an in-person VA examination in May 2021 for the claimed right shoulder disability. The examiner completed the examination report in September 2021, in which she noted the diagnoses of right shoulder bicipital tendonitis and rotator cuff tendonitis. In the accompanying medical opinion, the examiner stated that the Veteran's right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including the June 2007 in-service right shoulder pain. As a supporting rationale, the examiner stated that the Veteran was seen in April 2007 with a normal right shoulder examination. The Veteran was also seen in June 2007 for right shoulder pain due to a hyperextended shoulder and was diagnosed with right shoulder joint pain and exercises provided. The Veteran was seen in 2011 for C&P [compensation and pension] examination with provider L., who diagnosed the Veteran with left shoulder strain but reported that left shoulder condition was less likely than not related to the complaints and treatment received in service due to lack of chronicity of complains and care. However, records are silent for c/o right shoulder pain during this examination. A medical board examination summarized a comprehensive overview of the Veteran's chronic medical conditions in April 2012, which included a left shoulder condition. This examination and summary was silent for right shoulder condition. The examiner noted that currently the Veteran reports diffuse right shoulder pain over the proximal bicipital tendon and "inside the joint". Range of motion is painful and reduced on examination. The examiner stated that the Veteran's examination notes positive testing indicative of a rotator cuff condition and proximal bicipital tendonitis condition. The current right shoulder X-ray is within normal limits. The examiner also noted that the Veteran was seen for a shoulder injury in 2007 and no reports of ongoing right shoulder condition in 2011 or 2012 which were both comprehensive reviews of the Veteran's medical conditions, which suggest that the right shoulder injury in 2007 was acute and resolved. Therefore, the examiner concluded that it is less likely than not that the Veteran's current right shoulder condition incurred during service. The examiner also opined that the Veteran's right shoulder disability is less likely than not proximately due to or aggravated beyond its natural progression by a service-connected disability. The examiner provided the same rationale that she provided for the above noted direct service connection theory, and merely stated that tendonitis is an inflammatory condition that caused localized pain to a region of body, and other conditions cannot cause or aggravate the right shoulder condition. The Board finds the September 2021 VA medical opinion on theory of secondary service connection inadequate because the supporting rationale is conclusory without sufficient explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, the examiner did not address whether any of the Veteran's service-connected disabilities caused any incremental increase in his non-service-connected right shoulder condition, even though the examiner was specifically directed by the Board to provide an opinion on this aspect of secondary service connection. Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019). Thus, the Board finds that a remand is warranted to obtain a new medical opinion as to whether the Veteran's current right shoulder condition is proximately due to or aggravated by a service-connected condition. The matter is REMANDED for the following action: 1. Obtain a new medical opinion on the nature and etiology of the Veteran's right shoulder condition, preferably from an orthopedic specialist if available. Further in-person examination of the Veteran is left to the discretion of the clinician providing the new medical opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. 2. After reviewing the claims file, and copy of this remand, the examiner should address the following: Provide an opinion as to whether the Veteran's current right shoulder disability is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by his service-connected disabilities, including but not limited to left shoulder condition, right index finger condition, left knee condition, right wrist condition, and left ankle condition. In providing the above requested opinions, specifically the opinion on aggravation of the Veteran's right shoulder disability, the examiner should address whether any of the Veteran's diagnosed right shoulder conditions had any incremental increase in severity, regardless of its permanence, due to any of the service-connected conditions. Complete and separate supporting rationales for the opinions on the claimed causation and aggravation of the claimed right shoulder disability must be provided. If the examiner determines that it is not possible to provide an opinion without resorting to speculation, then the examiner must provide an explanation of why that is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or a deficiency in the examiner's knowledge. 3. Thereafter, if the benefit sought remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.