IRRITABLE COLON SYNDROME (SPASTIC COLITIS MUCOUS COLITIS)

J. PARKER · 2024 · Case ID: A24030468

MIXED

Summary

The veteran, who served from June 1980 to June 2000, including service in Southwest Asia, appeals the denial of service connection for Irritable Bowel Syndrome (IBS) and a left hip disability, and the grant of service connection for GERD and migraine headaches. The Board denied service connection for IBS, finding no current diagnosis or qualifying symptoms, and no evidence supporting service connection. For the left hip disability, claimed as secondary to a service-connected lumbar spine condition, the Board denied service connection, finding no current left hip disability or functional impairment of earning capacity, and attributing the veteran's reported functional limitations to the service-connected right hip condition. Service connection for GERD was granted, with the Board finding the evidence in equipoise regarding its onset during service and resolving doubt in the veteran's favor based on service treatment records showing heartburn and a GERD diagnosis. Service connection for migraine headaches was also granted, with the Board finding the evidence in equipoise regarding their onset during service, noting the veteran's reported history of headaches and treatment during service, and applying the benefit of the doubt.

Rationale

No current diagnosis of IBS; Veteran denied symptoms consistent with IBS; No signs, symptoms, complaints, treatment, or findings attributable to IBS in VA or private records

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210212-135208

Full Decision Text

Citation Nr: A24030468
Decision Date: 06/10/24 Archive Date: 06/10/24

DOCKET NO. 210212-135208
DATE: June 10, 2024

ORDER

Service connection for irritable bowel syndrome (IBS) is denied.

Service connection for a left hip disability, to include as secondary to the service-connected lumbar spine disability, is denied.

Service connection for gastroesophageal reflux disease (GERD) is granted.

Service connection for migraine headaches is granted.

FINDINGS OF FACT

1. Shortly prior to and during the period on appeal, the evidence does not show a current diagnosis of IBS, and does not show symptoms of a qualifying chronic disability.

2. Shortly prior to and during the period on appeal, the evidence does not show a current left hip disability, or a functional impairment in earning capacity due to left hip pain.

3. The evidence shows current diagnoses of GERD and migraine headaches.

4. Headaches were not "noted" at service entrance.

5. The current GERD and migraine headaches had their onset during service.

CONCLUSIONS OF LAW

1. The criteria for service connection for IBS have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.

2. The criteria for service connection for a left hip disability, to include as secondary to the service-connected lumbar spine disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for GERD have been met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.

4. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant, had active service from June 1980 to June 2000, which included service in Southwest Asia.

The instant case is on appeal to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In January 2020, the Veteran filed a claim seeking, in pertinent part, service connection for IBS, a bilateral hip disability, GERD, and headaches. During the appeal, service connection for a right hip disability was granted; therefore, only service connection for a left hip disability remains on appeal as to the claimed bilateral hip disability.

In February 2020, the VA RO issued a rating decision that denied service connection for IBS and a left hip disability and deferred the claims for service connection for headaches and for GERD. In March 2020, the VA RO issued a rating decision that denied service connection for headaches and again deferred the claim for service connection for service connection for GERD.

In April 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the February 2020 VA RO rating decision denying service connection for IBS and a left hip disability and the March 2020 VA RO rating decision denying service connection for headaches.

In April 2020, the VA RO issued a rating decision that denied service connection for GERD. In June 2020, the Veteran submitted an HLR request and requested review of the April 2020 VA RO rating decision denying service connection for GERD.

In September 2020, the VA RO issued an HLR rating decision that considered the evidence of record as of the February 2020 VA RO rating decision denying service connection for IBS and a left hip disability. The September 2020 VA RO HLR rating decision found an error in the February 2020 denial and found that both claims would need to be reconsidered after additional evidence was obtained. The September 2020 VA RO HLR rating decision considered the evidence of record as of
RO issued a rating decision that denied service connection for GERD. In June 2020, the Veteran submitted an HLR request and requested review of the April 2020 VA RO rating decision denying service connection for GERD.

In September 2020, the VA RO issued an HLR rating decision that considered the evidence of record as of the February 2020 VA RO rating decision denying service connection for IBS and a left hip disability. The September 2020 VA RO HLR rating decision found an error in the February 2020 denial and found that both claims would need to be reconsidered after additional evidence was obtained. The September 2020 VA RO HLR rating decision considered the evidence of record as of the March 2020 VA RO rating decision denying service connection for migraines and found that the claim would need to be reconsidered after additional evidence was obtained. The September 2020 VA RO HLR rating decision considered the evidence as of the April 2020 VA RO rating decision denying service connection for GERD and found that the claim would need to be reconsidered after additional evidence was obtained.

Given these findings, the VA RO returned the claims for service connection for IBS, a left hip disability, migraines, and GERD to the supplemental claim lane.

In December 2020, the VA RO issued a rating decision considering all evidence of record and denied service connection for IBS, a left hip disability, headaches, and GERD. This is the AMA rating decision on appeal.

In the February 2021 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 December 2020 VA RO rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the December 2020 VA RO rating 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection Legal Authority

In this case, the Veteran appeals for service connection for IBS, a left hip disability, GERD, and headaches under a variety of theories. The contentions are discussed further below in each section.

Direct Service Connection

Service connection can be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.

Secondary Service Connection

Under 38 C.F.R. § 3.310, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Gulf War Presumptive Service Connection

Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including disability resulting from an undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026, and which 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).

As of
. 439, 448 (1995) (en banc).

Gulf War Presumptive Service Connection

As of August 10, 2022, the PACT Act of 2022 eliminated the manifestation period and the degree to which a qualifying chronic disability must manifest to be presumed as due to service in the Persian Gulf. See 38 U.S.C. § 1117 (2022). Thus, undiagnosed illness and medically unexplained chronic multisymptom illness (MUCMI) may now manifest at any time and to any degree (including noncompensable). Therefore, there is no longer a requirement for a chronic disability to manifest to a degree of 10 percent or more prior to an end date (currently December 31, 2026), as stated in the regulation. See 38 C.F.R. § 3.317(a) (2022). The end date is no longer applicable and will be removed in a forthcoming regulatory change. See VBA Letter 20-22-10 at 16, Processing Claims Involving the PACT Act, 87 Fed. Reg. 78543 (Dec. 22, 2022).

In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).

A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) that warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a), (c).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b).

Effective July 13, 2010, VA amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multi-symptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multi-symptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct. 7, 2010).

Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c).

Presumption of Soundness

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b).

1. Service Connection for Irritable Bowel Syndrome is Denied.

The Veteran filed a claim seeking service connection for IBS on January 2, 2020, and filed an appeal to the Board in February 2021 seeking service connection for IBS. The Veteran has not asserted a theory of service connection for IBS or provided any contentions to why service connection is warranted.

After a review of the lay and medical evidence of record, the Board finds that the persuasive weight of the evidence is against a finding of a current IBS disability and service connection under any theory of entitlement cannot be granted.

With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency).

At a February 2020 VA examination, the VA examiner did not find that a diagnosis of IBS was warranted; rather, the examiner wrote that the Veteran denied constipation, diarrhea, bloating, and/or abdominal pain that would be consistent with a diagnosis of IBS. The Veteran also denied abdominal distension, anemia, nausea, and vomiting. The February 2020 VA examiner wrote that the Veteran denied an IBS diagnosis and informed the examiner that the claim was for GERD. The February 2020 VA examiner accordingly opined that a diagnosis of IBS was not warranted.

The VA treatment records do not include any signs, symptoms, complaints, treatment, or findings attributable to IBS, such as those that were considered
2020 VA examination, the VA examiner did not find that a diagnosis of IBS was warranted; rather, the examiner wrote that the Veteran denied constipation, diarrhea, bloating, and/or abdominal pain that would be consistent with a diagnosis of IBS. The Veteran also denied abdominal distension, anemia, nausea, and vomiting. The February 2020 VA examiner wrote that the Veteran denied an IBS diagnosis and informed the examiner that the claim was for GERD. The February 2020 VA examiner accordingly opined that a diagnosis of IBS was not warranted.

The VA treatment records do not include any signs, symptoms, complaints, treatment, or findings attributable to IBS, such as those that were considered by the February 2020 VA examiner. The VA treatment records also do not include a diagnosis of IBS. There are no gastrointestinal private treatment records.

Because the persuasive weight of the evidence is against a finding of a current IBS disability or symptoms of a qualifying chronic disability shortly prior to or at any time during the period on appeal, service connection for IBS under any theory of entitlement must be denied. See Brammer, 3 Vet. App. at 223; see also McClain, 21 Vet. App. at 319; Romanowsky v. Shinseki, 26 Vet. App. at 289.

2. Service Connection for a Left Hip Disability is Denied.

The Veteran appeals for service connection for a left hip disability, asserting that a claimed left hip disability is either directly caused by service or is due to (secondary to) the service-connected back disability. See January 2020 Claim.

Given the facts of this case, the Board finds that the persuasive weight of the evidence is against a finding of a left hip disability, or a functional impairment in earning capacity due to left hip pain shortly prior to or during the period on appeal.

In Saunders v. Wilkie, 886 F.3d 1356 (2018), the Federal Circuit stated that "'disability' in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity." See Saunders, 886 F.3d at 1363. It was also stated that "pain in the absence of a presently-diagnosed condition can cause functional impairment." Id. at 1368. It was additionally stated that "to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68.

As noted, the Veteran filed a claim for service connection for a bilateral hip disability. After additional development, service connection for a right hip disability was granted and service connection for a left hip disability was denied.

At a November 2020 VA examination, the VA examiner found that the right hip has degenerative joint disease and that there is no diagnosis pertaining to the left hip. Although the history section notes a history of bilateral hip pain in 2008, the current findings do not include a notation of left hip pain during the examination or any findings of a left hip disability that was shortly prior to or during the period on appeal.

As of the November 2020 VA examination, all left hip range of motion measurements, to include the initial motion, motion after three repetitions, and the estimated range of motion measurements as to repeated use over time and during flare-ups were normal; all right hip range of motion measurements were abnormal.

Although the November 2020 VA examiner noted a functional impact of difficulty walking long distances and running as well as difficulty getting up from a sitting position, the November 2020 VA examiner did not opine as to whether this impairment was due to the diagnosable right hip degenerative joint disease or whether any left hip pain contributed to the impairment. The November 2020 VA examiner only proffered a nexus opinion as to a right hip disability, given the findings of the examination that showed only right hip findings and disability.

The Board finds that, given the circumstances of this case (namely no range of motion deficits for the left hip and significant range of motion deficits for the right hip and a diagnosis as to the left hip but not as to the right hip), the listed functional impact was due to the right hip disability and not due to any left hip pain, which was not noted during the exam.

This finding is consistent with the VA treatment records, which show complaints of and treatment for right hip pain. An October 2019 VA treatment record documents mild degenerative joint disease of the right hip and questionable scattered bone islands and/or loose bodies at the joint space of the right hip.

The Board has considered the holding in Saunders in the instant
.

The Board has considered the holding in Saunders in the instant decision and has assessed whether the evidence shows functional impairment of earning capacity caused by the left hip. The evidence of record does not indicate symptoms severe enough to result in a functional impairment of earning capacity caused by the left hip. At no point shortly prior to or during the period on appeal did the Veteran assert a functional impairment in earning capacity or describe impairments that could serve as the basis for finding such. The persuasive weight of the lay and medical evidence is against such a finding of functional impairment in earning capacity due to left hip pain.

Because the persuasive weight of the evidence is against a finding of a left hip disability shortly prior to or during the period on appeal, service connection cannot be granted under any theory of entitlement, to include on a direct basis and as secondary to the service-connected lumbar spine disability. See Brammer at 223; McClain at 319; Romanowsky at 289. As such, the appeal for service connection for a left hip disability must be denied.

3. Service Connection for GERD is Granted.

4. Service Connection for Migraine Headaches is Granted.

The Veteran appeals for service connection for GERD and for migraine headaches. Concerning GERD, the Veteran has asserted that GERD (also claimed as achalasia with reflux) is warranted on a presumptive gulf war theory of entitlement. The Veteran has not asserted a specific theory of service connection for migraine headaches. See January 2020 Claim.

Preliminarily, the evidence shows a current diagnosis of GERD and of migraine headaches. See, e.g., March 2020 VA Examinations (diagnosing GERD and migraine headaches). The current disability requirement has been met.

The Board finds that the evidence is at least in relative equipoise on the question of whether the current GERD and migraine headaches had their onset during service, that is, whether they were directly "incurred in" service (38 C.F.R. § 3.303(d)).

Concerning GERD, the Veteran reported at the March 2020 VA examination that he first noted symptoms of heartburn in the early 1990s during service, that he went to see a medical professional at the time, and that he was diagnosed with acid reflux and given an antacid. See March 2020 VA Examination. Multiple service treatment records support this history that was given by the Veteran. See, e.g., September 1994 Service Treatment Record (finding epigastric heart burn for which the Veteran was given Mylanta); July 1999 Service Treatment Record (diagnosing GERD and atypical chest pain).

The Veteran also reported contemporaneously to service in the March 1997 Report of Medical History that he experienced heartburn from time to time. This report of medical history is the closest to service separation that exists in the claims file and is highly probative as to the existence of GERD during service and close to service separation.

Concerning migraine headaches, the Board first notes that the Veteran first reported a history of some headaches in the October 1979 Report of Medical History at service entrance. No sequelae or current headache diagnosis were "noted" in the concurrent October 1997 Report of Medical Examination.

Because headaches were not "noted" in the concurrent October 1997 Report of Medical Examination, the Veteran is presumed sound and a showing of aggravation of a preexisting headache disability is not needed. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the March 2020 VA opinion that denies service connection due to no aggravation of a preexisting condition is not based on the applicable legal principles and is not probative.

The Veteran reported at the March 2020 VA examination that he experienced migraine headaches during service. Service treatment records support this history. See, e.g., November 1986 Service Treatment Record (noting that the Veteran has headaches); November 1999 Service Treatment Record (noting headache, tingling sensations, and dizziness).

The Veteran also
of aggravation of a preexisting headache disability is not needed. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the March 2020 VA opinion that denies service connection due to no aggravation of a preexisting condition is not based on the applicable legal principles and is not probative.

The Veteran also reported contemporaneously to service in the March 1997 Report of Medical History that he experienced migraine headaches that were treated with medication, which was usually successful. This report of medical history is the closest to service separation that exists in the claims file so is probative as to the existence of migraine headaches during service and close to service separation.

Given the above evidence, the Board finds that the evidence is at least in relative equipoise as to the question of whether the currently existing GERD and migraine headache disability had their onset during service and were directly "incurred in" service. The Board will resolve reasonable doubt in favor of the Veteran to find such direct incurrence and accordingly will grant direct service connection (38 C.F.R. § 3.303(a), (d)) for GERD and for migraine headaches. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Although the Veteran has asserted that service connection for GERD is warranted on a Persian Gulf presumptive basis, the Board need not address that separate contention as service connection is being granted on a direct basis.

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Smith, Amy K. (she/her/hers)

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.

Analyze in VA Law Explorer