Citation Nr: A25035200 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240111-408018 DATE: April 16, 2025 ORDER Service connection for a hernia is denied. Service connection for a sphincterectomy is granted. Service connection for benign paroxysmal positional vertigo (BPPV) is granted. REMANDED Service connection for bilateral plantar fasciitis is remanded. Service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's hernia began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's sphincterectomy was as likely as not caused or aggravated by his service-connected gastroesophageal reflux disorder (GERD) with irritable bowel syndrome (IBS) and gastric ulcer. 3. Resolving the benefit of the doubt in favor of the Veteran, his BPPV had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a hernia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a sphincterectomy as secondary to service-connected GERD with IBS and ulcer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for BPPV are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1988 to April 1992, with service in the Persian Gulf. In the January 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 notice of the March 2023 and July 2023 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. 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 for service connection for a hernia, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for plantar fasciitis and a cervical spine disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Service connection for a hernia is denied. The Veteran contends that his hernia is related to due to physical activities and strain in service. 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, 5107; 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). Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness (MUCMI) that is defined by a cluster of signs or symptoms such as: (1) chronic fatigue syndrome; (2) fibromyalgia; or (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317 (a)(2). The term MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Manifestations of undiagnosed illness or MUCMI include fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). Pursuant to 38 C.F.R. § 3.320 (a)(5), a Veteran with service in the Southwest Asia theater of operations shall be presumed to have been exposed to fine, particulate matter during such service unless there is affirmative evidence to establish the Veteran was not exposed. On August 10, 2022, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was enacted. Section 303 of this law provides that, if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in a toxic exposure risk activity ("TERA"), then VA shall obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the gastrointestinal disabilities and the toxic exposure risk activities during service. Pub. L. 117-168, § 303 (to be codified at 38 U.S.C. § 1168 ). This development was accomplished in June 2023. The Board also notes VA memoranda regarding TERA, Individual Longitudinal Exposure Record, status as a "Persian Gulf Veteran" as specified by 38 U.S.C. § 1117 and presumptive toxic exposure per 38 U.S.C. § 1119 added to the record in January 2023. After considering all of the evidence, however, the Board concludes that the evidence of record persuasively weighs against finding that the Veteran's hernia began during service or is otherwise related to an in-service injury, event, or disease. First, the VA treatment records and the VA examinations show the Veteran was not diagnosed with a hernia until March 2012. This diagnosis come many years after separation from service in 1992. Further, on August 2022 VA examination, the Veteran reported the date of onset of his hernia was in 2012. The August 2022 VA examiner opined that the Veteran's hernia is not at least as likely as not related to service in the Persian Gulf. The examiner explained that there was a known causes for a hernia, and that the medical literature did not support the theory that it would be due to toxic exposure while in the Persian Gulf. In June 2023, the Veteran once again reported that the date of onset of his hernia was 2012. The VA examiner concluded that it was less likely than not that the Veteran's hernia was related to his service. The examiner explained that an episode of gastroenteritis, shown in service, would not be related to the Veteran's hernia in 2012, which was instead related to a sports injury. It was more likely that a post-service injury was the cause of his hernia. Then, in June 2023, a VA examiner concluded that it was less likely than not that the Veteran's hernia was related to toxic exposure risk activities, after considering the total potential exposure through all applicable military deployments and the synergistic effect of all toxic exposure. The examiner explained that hernias are due to congenital and acquired conditions, to include familial dispositions, being overweight, and/or acute or chronic trauma and age. Here, the Veteran has provided very little insight as to how the hernia he suffered in 2012 relates to his service. While he claimed that it was due to his duties in service, there is no indication in the service treatment records that he suffered from a hernia in service. Moreover, there is no evidence that he suffered from a hernia from 1992 to 2012. Additionally, as described above, the medical opinions of record weigh against the claim. And finally, there is no indication that the Veteran's hernia is an undiagnosed illness, a MUCMI, or is due to TERA participation. The Veteran believes his hernia is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that the Veteran has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In that regard, the Veteran has not stated that he has suffered from abdominal pain since service that would describe a hernia. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a hernia is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for a sphincterectomy is granted. The Board finds that the Veteran's sphincterectomy is related to his service-connected GERD with IBS and ulcer. In June 2023, the Veteran reported that while deployed in Kuwait, he experienced anxiety, abdominal pain, and bloating, and started to have loose stools and diarrhea. It was noted that the Veteran suffered from ongoing diarrhea and associated rectal pain that resulted in a rectal tear and sphincterectomy in 2014 due to anal fissure. It was found that his GERD, IBS, and ulcer were related to his service, and he was awarded service connection. From this examination, it is clear that his sphincterectomy was due complications related to these service-connected conditions. Thus, while the crux of the VA opinions obtained in this matter discuss only whether the Veteran's sphincterectomy was related to an episode of gastroenteritis in service, the Board finds that service connection for this condition is warranted on that secondary basis. Therefore, service connection for a sphincterectomy, as due to service-connected GERD with IBS and ulcer, is granted. 3. Service connection for BPPV is granted. The Board finds that, when resolving the benefit of the doubt in favor of the Veteran, his BPPV had its onset in service. First, the service treatment records reflect that on March 1992 separation examination, the Veteran reported experiencing motion sickness that was mild. Therefore, there is evidence that the Veteran was suffering symptoms of motion sickness, and the related feelings, in service as he has contended. In that regard, at the June 2023 VA examination, the Veteran reported that while onboard the naval ship in service he had some sea sickness that resolved. However, once he separated from service, he was observed to be swaying while he walked, and he began to experience "spells" when he would feel all of a sudden off balance like he did on the ship, making him nauseous. Although the VA examiner concluded that the Veteran's current BPPV was less likely than not related to his seasickness in service, explaining that seasickness would not result in years of vertigo, the Board sees the claim differently. Despite this conclusion, it appears from the evidence that the Veteran likely began to experience his vertigo while he was in service. Thus, while it was described as seasickness or motion sickness while in service, there is evidence to suggest that it was the beginning of his current BPPV. The Veteran reported at his VA examination that he suffered from dizziness ever since service, and that he began to experience spells even when no longer on his ship. He stated that he had not gotten the condition checked out soon after service, but he did later inquire as to the cause of these symptoms of dizziness. This trajectory shows a link between the current diagnosis and the in-service symptoms, especially since the symptoms described have not changed. Accordingly, based upon the above evidence of in-service symptoms, credible lay statements that the symptoms continued since service, and a current diagnosis encapsulating these ongoing symptoms, the Board finds the benefit of the doubt weighs in the Veteran's favor and service connection for BPPV is warranted. REASONS FOR REMAND 1. Service connection for bilateral plantar fasciitis is remanded. The Board finds a duty to assist error with regard to this claim. The service treatment records reflect that on January 1988 enlistment examination, the Veteran was noted to have mild pes planus, bilaterally. The Veteran has reported that he experienced foot pain during service. However, the March 2023 rating decision did not discuss this evidence of a pre-existing condition of pes planus, nor did the AOJ obtain a VA opinion to determine whether the pre-existing pes planus caused or aggravated plantar fasciitis in service. Because pes planus and planter fasciitis are interrelated conditions, a VA opinion should have been obtained. 2. Service connection for a cervical spine disability is remanded. The Board finds a duty to assist error with regard to this claim. The Veteran contends that his cervical spine strain is related to his combat duties in service. The record reflects that he served onboard the USS Theodore Roosevelt (CVN-71) when it served in the Persian Gulf during the Persian Gulf war. The available evidence does not contain enough information to determine whether the Veteran 'engaged in combat with enemy.' The phrase 'engaged in combat with the enemy' requires that a Veteran has personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008). Combat for VA purposes does not apply to Veterans who merely served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. Id. As this is an important distinction for a service connection analysis, the AOJ should inquire with the Veteran as to his duties in service and attempt to verify any combat participation if possible. And, although the Veteran reported that his cervical spine disability began in the 1990s while in service, a VA opinion as to the etiology of his cervical spine disability was not obtained. Given the Veteran's possible combat, and also the reported and probable physical nature of his service, such opinion should have been obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his plantar fasciitis. The examiner must review the claims file. Is the Veteran's plantar fasciitis at least as likely as not related to service, including the Veteran's report of foot pain in service, to include the notation of mild pes planus on January 1988 entrance examination? Provide a rationale to support the opinion(s). 2. Ask the Veteran to provide further detail about his combat in service. If possible, verify the Veteran's combat service. 3. Following directive 2), schedule the Veteran for a VA examination for cervical spine disability. The examiner must review the claims file. Is the Veteran's cervical spine disability at least as likely as not related to service, including his report of neck pain in service, his duties onboard ship as part of Operation Desert Shield, and any shown or described combat service? M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Erdheim, 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.