Citation Nr: A25035013 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240702-453151 DATE: April 16, 2025 ORDER Service connection for an acquired gastrointestinal disability, to include diverticulosis, gastritis, and a hiatal hernia, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's acquired gastrointestinal disability, to include diverticulosis, gastritis, and a hiatal hernia, is causally related to her active-duty service. CONCLUSION OF LAW The criteria for service connection for an acquired gastrointestinal disability, to include diverticulosis, gastritis, and a hiatal hernia, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Army on active duty from October 1993 to July 1996 and from March 1997 to August 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2024 rating decision of a Department of Veterans Affairs (VA), an agency of original jurisdiction (AOJ). In the July 2024, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2024 decision on appeal. Any evidence submitted after the AOJ decision on appeal, cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As a final preliminary matter, generally, the Board may not decide an appeal before the deadline for requesting an Appeals Improvement and Modernization Act (AMA) docket switch has elapsed. 38 C.F.R. § 20.202(c)(2) allows Veterans to switch AMA dockets by completing and submitting a new VA Form 10182 within 60 days from the date the Board receives the original VA Form 10182, or one year from the date the AOJ mails notice of the decision on appeal, whichever is later, unless (1) a Veteran has already submitted evidence or testimony as described in 38 C.F.R. §§?20.302 and 20.303, or (2) the Veteran or their representative has requested a waiver of the ability to request to switch dockets during this timeframe. See Williams v. McDonough, 37 Vet. App. 305, 307. If the Board issues a decision before this timeframe has elapsed - and does not otherwise find that the appellant waived the time to request a docket switch - the Board fails to afford the appellant due process. In this case less than one year has elapsed since the Veteran was notified of the May 2024 rating decision on appeal. However, as the Board is granting the Veteran's claim in full, it would be nonsensical to hold this decision in abeyance as no prejudice will result from issuance of this decision. Service connection for an acquired gastrointestinal disability, to include diverticulosis, gastritis, and a hiatal hernia, is granted. The Veteran contends she has an acquired gastrointestinal disability, to include diverticulosis, gastritis, and a hiatal hernia that is causally related to her active-duty service. See August and December 2023 VA 21-526EZ, Fully Developed Claims (Compensation) and VA 20-0995 Supplemental Claim Application. Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §§3.159(a)(2). It is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter (which includes but is not limited to equipoise), VA shall give the benefit of the doubt to the claimant. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 778 (Fed. Cir. 2021). In this case, the Veteran's April 1992 military enlistment medical examination reported the Veteran had no medical limitations or abnormalities. See April 1992 STR - Medical (VA received February 2014). However, in 1998 and in 1999 while the Veteran was serving on active duty the Veteran was medically treated for recurrent abdominal pain and bloody stool. See December 1998 and April 1999 STR - Medical (VA received February 2014). In 2006, the Veteran completed a VA examination and again reported experiencing gastrointestinal complications including recurrent abdominal pain and bloody stool since 2000. See August 2006 VA Examination. After reviewing the evidence of record, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issues of service connection for diverticulosis, gastritis, and a hiatal hernia, to encompass any acquired gastrointestinal disability. 38 CFR 4.113 discusses co-existing abdominal conditions and directs, "There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title 'Diseases of the Digestive System,' do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14." At various times during her active-duty service and since, the Veteran has been diagnosed with varying gastrointestinal conditions and/or symptoms. More recently, in August 2023 the Veteran completed a private medical treatment examination and was diagnosed with a hiatal hernia and gastritis. See August 2023 Correspondence - Johns Hopkins Medicine Treatment Record. In 2024, the Veteran completed a VA stomach and intestinal conditions examination, and the examiner diagnosed the Veteran with gastritis and diverticulosis. See January and March 2024 C&P Exams. Therefore, the Board finds the Veteran has established she has a current disability, an acquired gastrointestinal disability, to include diverticulosis, gastritis, and a hiatal hernia, satisfying the first element of service connection. In January 2024, VA completed a medical opinion that opined the Veteran's gastrointestinal disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The opinion's rationale was there is a lack of substantiating evidence supporting a nexus between the current diagnosis of erosive gastritis and military service. See January 2024 C&P Exam. However, the examiner did not address the Veteran's reports of her continued symptoms since onset and that such symptoms have worsened over time, nor did the examiner address the Veteran's medical treatment records that documented the Veteran was treated multiple times during and since her active-duty service for gastrointestinal symptoms. Moreover, the examiner did not opine as to the etiology of the Veteran's gastrointestinal disability. Therefore, the Board finds the opinion has minimal probative value. In March 2024, VA completed a medical opinion that opined the Veteran's gastrointestinal disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The opinion's rationale was the Veteran had no issues related to the claimed gastrointestinal disability, including diverticulitis, prior to military service; the current diagnosis of diverticulosis is related to the symptoms during service; and there is evidence of chronicity, and a nexus has been established. See March 2024 C&P Exam. The Veteran's service treatment records and VA treatment records corroborate the Veteran's reported in-service incurrence of her gastrointestinal disability and symptoms. Moreover, as part of the May 2024 rating decision, the AOJ conceded the Veteran has a gastrointestinal disability, to include diverticulosis, gastritis, and a hiatal hernia and that the Veteran's service treatment records show a qualifying event, injury, or disease that had its onset during the Veteran's active-duty service. The Board is bound by these favorable findings. 38 C.F.R. § 3.104. Therefore, the Board finds the Veteran has established there was an in-service incurrence or aggravation of her gastrointestinal disability, satisfying the second element of service connection. As to the third element of service connection, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the Board finds the Veteran is competent to report her gastrointestinal disability symptoms and their onset. The Veteran claimed her gastrointestinal disability symptoms began during her active-duty service and have continued since, with no reason to find her not credible. The evidence is at least evenly balanced as to whether the Veteran's gastrointestinal disability symptoms have continued since onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds there is a causal relationship between the present disability and the disease or injury incurred or aggravated during service, therefore, satisfying the third element of service connection. (Continued on the next page) ? Accordingly, the Veteran's service connection claim for an acquired gastrointestinal disability, to include diverticulosis, gastritis, and a hiatal hernia is granted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Frederic P. Gallun Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Morales 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.