Citation Nr: A25035897 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240912-472722 DATE: April 18, 2025 REMANDED Entitlement to service connection for a gastrointestinal disorder, to include as secondary to a service-connected condition or its medications, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1988 to December 1991, with service in Southwest Asia from September 1990 to April 1991. Having served in a location covered under 38 U.S.C. § 1119, the Veteran is presumed to have been exposed to certain substances, chemicals, and airborne hazards because of his service. See 38 U.S.C. § 1119. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Following a June 2023 request for higher-level review and an October 2023 rating decision, this timely appeal of the denial followed. In the September 2024 notice of disagreement, the Veteran indicated: "Direct Review by a Veterans Law Judge: I do not want a Board hearing and will not submit any additional evidence in support of my appeal." To better explain the docket choice in the VA Form 10182, "direct review" means that the Board's decision must be based solely on evidence already of record at the time of the rating decision on appeal. Therefore, the Board is ordinarily bound to an evidentiary window that closed October 16, 2022. See 38 U.S.C. §§ 7104, 7113; 38 C.F.R. §§ 20.300, 20.301, 20.801. Any evidence that was not considered by the Board in this AMA decision may be resubmitted along with a supplemental claim (VA Form 20-0995). See generally 38 U.S.C. § 5104C; 38 C.F.R. § 3.2500. If that evidence, or any new evidence the Veteran wishes to submit with his supplemental claim, is relevant to the issue of service connection for these disabilities, the VA will readjudicate it. See 38 U.S.C. § 5108; 38 C.F.R. § 3.2501; Cook v. McDonough, 36 Vet. App. 175 (2023). The Board notes that it has thoroughly reviewed the record in conjunction with this case. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that "absent specific evidence indicating otherwise," VA is presumed to have reviewed all evidence in the record when deciding a case.). Although the Board has an obligation to provide adequate reasons and bases for its decisions, there is no need to discuss, in detail, the entire body of evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that the Board is not required to discuss all the evidence of record but rather it must address the relevant evidence.); see also Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (38 U.S.C. § 7104 requires the Board to address all regulations that are made "potentially applicable through the assertions and issues raised in the record."). Any failure by the Board to mention evidence in its decision does not trigger a presumption that it was not considered. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007). The matter is now before the Board for consideration. Service Connection Generally, 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. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. See generally 38 C.F.R. § § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to a service-connected condition or its medications, is remanded. Regarding the first element of service connection, the record is not clear regarding an actual diagnosis. See, e.g., January 2019, June 2020, June 2022, and September 2022 VA Intestinal Conditions examination reports. Addressing functional impairment as a diagnosis, the United States Court of Appeals for the Federal Circuit (Fed Circuit) concluded: [Section 1110] specifically states that compensation is due for a disability 'resulting from personal injury suffered or disease contracted in line of duty...,' not that the disability itself must be the qualifying personal injury or aggravation suffered by the veteran (emphasis in original)...[W]hile a diagnosed condition may result in a disability, the disability itself need not be diagnosed...[W]e find that 'disability' in § 1110 refers to the functional impairment of earning capacity not the underlying cause of said disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran reports the following gastrointestinal symptoms: (1) "He very seldom sleeps well and is always having to stop to use the restroom (see September 2018 Buddy / Lay Statement);" (2) "diarrhea for a long time...mainly diarrhea, but when I take the medication, I get constipated (see January 2019 VA Intestinal Conditions examination report);" (3) "stomach cramps / pain and constant diarrhea (see June 2022 VA Intestinal Conditions examination report);" and (4) "Does the Veteran's intestinal condition impact his or her ability to work? [x] Yes...Due to chronic diarrhea, Claimant is limited in focus and concentration during symptom exacerbations, all of which limit productivity and efficiency (see June 2022 VA Intestinal Conditions examination report)." Having established an impairment in earning capacity according to Saunders, the first element of service connection has been satisfied. Concerning an in-service event, service treatment records are silent for complaints of, treatment for, or a diagnosis related to a gastrointestinal disorder. See August 1988 to December 1991 Veteran service treatment records, July 1991 Southwest Asia Demobilization Medical Evaluation, and July 1991 Report of Medical History. At the June 2022 VA medical examination, the Veteran provided an onset date of symptoms as "1992 / 1993." See June 2022 VA Intestinal Conditions examination report. The Veteran is certainly competent to report readily observable symptoms, including stomach cramps, diarrhea, and constipation. However, the Board must weigh the Veteran's lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ["a legal concept determining whether testimony may be heard and considered"] and credibility ["a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"]). As each of the VA medical examiners pointed out, there is no evidence of treatment for gastrointestinal symptoms in the record, including the Veteran's claim of being prescribed Rifaximin. See January 2019, June 2020, June 2022, and September 2022 VA Intestinal Conditions examination reports. Further, the Veteran reported to the June 2022 VA medical examiner: "He states that about 4-5 years ago he reported this condition to the Houston VA-Hospital per treating Provider and he believes he was told it 'Could be linked to his chronic fatigue syndrome.'" See June 2022 VA Intestinal Conditions examination report. However, evidence of symptoms related to chronic fatigue syndrome comes from the Veteran. See May 2018 VA C & P Examination Note ("The Veteran has claimed a disability pattern related to chronic fatigue syndrome."). The Board does not need to make a finding regarding the probative value and weight to be given to the Veteran's lay evidence. The Veteran has claimed that he experienced gastrointestinal symptoms since "1992 / 1993." He has not claimed, nor does the record reflect, that the gastrointestinal symptoms were "noted during service," so the provisions regarding chronicity and continuity of symptomatology would not apply. See 38 C.F.R. § 3.303(b). Further, assuming arguendo that the Veteran satisfied the second element required for service connection, competent and credible evidence of in-service incurrence, the medical examinations of record have all provided negative opinions on direct service connection. See January 2019, June 2020, June 2022, and September 2022 VA Intestinal Conditions examination reports. Nonetheless, the Veteran is still entitled to consideration for secondary service connection, to include obesity as an intermediate step. The record indicates that the Veteran underwent "lap band surgery per Private provider in Austin, Tx to lose weight 2017 / 2018 which did not help correct the gastrointestinal condition." See June 2022 VA Intestinal Conditions examination report. While obesity cannot be a disability in and of itself, it may be an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). The Veteran is also entitled to consideration for service connection under the Honoring our PACT Act of 2022, Pub. L. 117-118. See also VBA Letter 20-22-10, Processing Claims Involving the PACT Act, 87 Fed. Reg. 78, 543 (Dec. 22, 2022). As noted by the June 2022 and September 2022 VA medical examiners, "no underlying cause has been identified thus far...there is not enough data." See June and September 2022 VA Intestinal Disorders examination reports. Therefore, the Veteran may still be considered for presumptive service connection of an undiagnosed, medically unexplained, chronic multi-symptom gastrointestinal illness. See 38 C.F.R. § 3.317. For these reasons, the evidence of record is not sufficient to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Board regrets the delay associated with additional development, a remand is required to address the pre-decisional duty to assist error in obtaining private treatment records and providing the Veteran with a diagnostic work up to effectively diagnose, if possible, categorize, and determine the etiology of the Veteran's gastrointestinal symptoms. See 38 U.S.C. § 1168. The matters are REMANDED for the following actions: 1. Provide the Veteran with an opportunity to identify, with sufficient clarity, the records of 2009 colonoscopy, the records of his 2017 / 2018 Austin, Texas laparoscopic band surgery, and any other private treatment records relevant to his claim of service connection for a gastrointestinal disorder, to include a prescription for Rifaximin. a. The United States Court of Appeals for Veterans Claims (CAVC) held, "The claimant cannot passively wait for VA's assistance in circumstances where he or she may or should have information that is essential in obtaining evidence." See Zarycki v. Brown, 6 Vet. App. 91 (1993); see also Wamhoff v. Brown, 8 Vet. App. 517 (1996) ("The duty to assist in the development and adjudication of a claim is not a one-way street."); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not a one-way street."). 2. Provide a VA medical examination, to include TERA, for the Veteran to determine the nature and etiology of any gastrointestinal disorder. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner. 3. All clinical testing and interviewing, to include a full diagnostic work up and colonoscopy, if medically necessary, must be performed in each of the examination instances. Upon completion of the above, each of the examiner should respond to the following inquiries: a. What diagnosis, if any, best approximates the Veteran's claimed symptoms? Upon determination of any current diagnoses, to include a gastrointestinal disorder, the examiner should respond to the following: b. Whether the evidence is at least approximately balanced or nearly equal that a claimed disability, if so diagnosed, was incurred in, aggravated by, or otherwise attributable to, an event, injury, or incurrence during the Veteran's active-duty service (related to any event, injury, or incurrence, during the Veteran's active-duty service), to include service in Southwest Asia? See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). c. Secondary service connection exists if the claimed condition-here, a gastrointestinal disorder-was caused by a service-connected disability-including an acquired psychiatric disorder and / or chronic fatigue syndrome, singularly or in the aggregate. See Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023), describing "caused by" as simple but for causation, a not only broad but even "sweeping" concept that requires unbroken links in the causal chain); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2012). i. Regarding obesity as an intermediate step, the examiner should opine as to whether the Veteran's service-connected conditions, to include an acquired psychiatric disorder and / or chronic fatigue syndrome, caused the Veteran to become obese. ii. If the answer is yes, then the examiner should opine as to whether the Veteran's laparoscopic band surgery aggravated the Veteran's gastrointestinal symptoms. d. A condition is aggravated if it is chronically worsened by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) ("[W]hen aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation."). 4. Provide a detailed rationale, citing to data in the record, for any conclusions reached, noting that a VA medical opinion is considered inadequate when it relies exclusively on the lack of evidence in the service treatment records to dissociate a claimed condition from the Veteran's military service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). 5. The VA examiner must consider and address the statements of the Veteran and set forth a clear and reasoned analysis, the source of the most probative value in a medical report, including generally accepted medical opinion, applicable studies and literature, and evidence from the record, to include more than the absence of evidence, for all conclusions in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 6. If any of the requested responses cannot be made without resorting to speculation, the examiner must state as much and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 7. If the opinion does not include adequate responses to the requested report, it must be returned to the providing examiner for corrective action. Timothy Cothrel Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Small, B. (BVA) 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.