Veteran Awarded Service Connection For Acid Reflux And Ibs

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Citation Nr: 0930908

Decision Date: 08/18/09 Archive Date: 08/27/09

DOCKET NO. 05-10 656 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in New

Orleans, Louisiana

THE ISSUE

1. Entitlement to service connection for irritable bowel

syndrome (IBS).

2. Entitlement to service connection for gastroesophageal

reflux disease (GERD).

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of

the United States

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

N. Snyder, Associate Counsel

INTRODUCTION

The Veteran had active service from May 1967 to February

1971.

This matter came before the Board of Veterans' Appeals

(Board) on appeal from a decision of December 2003 by the

Department of Veterans Affairs (VA) New Orleans, Louisiana,

Regional Office (RO).

FINDING OF FACT

The Veteran's IBS and GERD had its onset in service.

CONCLUSION OF LAW

1. The criteria for service connection for a IBS have been

met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§

3.303, 3.310 (2008).

2. The criteria for service connection for GERD have been

met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§

3.303, 3.310 (2008).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000

(VCAA), the United States Department of Veterans Affairs (VA)

has a duty to notify and assist claimants in substantiating a

claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.

§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In this case,

the Board is granting in full the benefit sought on appeal.

Accordingly, assuming, without deciding, that any error was

committed with respect to either the duty to notify or the

duty to assist, such error was harmless and will not be

further discussed.

Service Connection

The Veteran seeks service connection for irritable bowel

syndrome (IBS) and gastroesophageal reflux disease (GERD).

He contends that the conditions had its onset in service

and/or that they are secondary to his service-connected

anxiety disorder.

Service connection may be granted for a disability resulting

from injury or disease incurred in or aggravated by active

service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To

establish service connection for the claimed disorder, there

must be medical evidence of a current disability; medical or,

in certain circumstances, lay evidence of in-service

incurrence or aggravation of a disease or injury; and medical

evidence of a nexus between the claimed in-service disease or

injury and the current disability. When a condition noted in

service is not shown to be chronic, or where chronicity might

be legitimately be questioned, continuity of symptomatology

is required to support the claim. See 38 C.F.R. § 3.303. In

this case, because the in-service finding of malaria is not

shown to be a chronic disability, continuity of

symptomatology is required.

Service connection may be granted for disability shown to be

proximately due to, or the result of, a service-connected

disorder. See 38 C.F.R. § 3.310(a). This regulation has

been interpreted by the Court to allow service connection for

a disorder which is caused by a service-connected disorder,

or for the degree of additional disability resulting from

aggravation of a nonservice-connected disorder by a service-

connected disorder. See Allen v. Brown, 7 Vet. App. 439

(1995). The Board notes that 38 C.F.R. § 3.310 was amended

effective October 10, 2006, to implement Allen. See 71 Fed.

Reg. 52,744-47 (Sept. 7, 2006). Under the revised section

3.310(:D (the existing provision at 38 C.F.R. § 3.310( was

moved to sub-section ©), the regulation provides that any

increase in severity of a nonservice-connected disease or

injury proximately due to or the result of a service-

connected disease or injury, and not due to the natural

progress of the disease, will be service-connected. In

reaching this determination as to aggravation of a

nonservice-connected disability, consideration is required as

to what the competent evidence establishes as the baseline

level of severity of the nonservice-connected disease or

injury (prior to the onset of aggravation by service-

connected condition), in comparison to the medical evidence

establishing the current level of severity of the nonservice-

connected disease or injury. These findings as to baseline

and current levels of severity are to be based upon

application of the corresponding criteria under the Schedule

for Rating Disabilities (38 C.F.R. part 4) for evaluating

that particular nonservice- connected disorder. See 71 Fed.

Reg. 52,744-47 (Sept. 7, 2006).

The Veteran has reported that his symptoms had their onset

during service and persisted since service. He has noted

that he did not seek regular treatment for his symptoms until

the mid-1990s. He has explained, however, that although he

did have symptoms prior to that time, he believed he could

control the symptoms on his own. See January 2008 hearing

transcript.

The service medical evidence documents treatment for

constipation in February and October 1970. The records note

that the Veteran was advised to improve his diet and to eat

more roughage as well as to use mineral oil and fleet enemas.

The service treatment records also document that the Veteran

was seasick on multiple occasions and that he was treated for

nausea, general weakness, and stomach cramps - assessed as

intestinal flu - in June 1969. The service medical evidence

is otherwise silent as to any gastrointestinal complaints,

and the January 1971 separation record reports normal

findings for the abdomen and viscera.

The post-service medical evidence includes treatment records

which reflect a clinical history of GERD since approximately

1995 (first assessment of record dates in December 1999) and

assessments of hiatal hernia and Schatzki ring in December

1999, diverticulosis and benign neoplasm of colon in July

2004, and acute gastroenteritis in September 2006. The

records also indicate that the Veteran underwent hernia

repair in 1995. See generally Hall and VA treatment records.

The post-service treatment records do not report any

assessments of IBS.

The post-service medical evidence also includes reports from

VA examinations. A September 2004 VA psychiatric examination

record reflects the Veteran's history of IBS for the previous

18 months which he believed was related to job stresses and

an examiner's opinion that the IBS was related to the

service-connected anxiety disorder. The examiner provides no

medical rationale for the finding of IBS or the nexus

opinion, however, and it appears that the "diagnosis" and

opinion were based solely on the Veteran's history of IBS

from job stresses.

A VA gastrointestinal examination was then conducted in

December 2008 to clarify whether the Veteran had a

gastrointestinal disorder that onset in service or was

causally related to service or a service-related disability.

The December 2008 VA examination record reflects the

Veteran's history of heartburn since approximately 1974, when

he was in his mid-20s, as well as vomiting during episodes of

gastrointestinal flu or gastroenteritis, rare dysphagia, and

weekly regurgitation. Based on this history, review of the

claims file, and examination, the examiner diagnosed the

Veteran with GERD. The examiner stated that the Veteran's

GERD was not caused by or a result of motion sickness or

anxiety disorder. He explained that hiatal hernia and GERD

occur commonly and are not generally related to either

anxiety or stress; rather, the symptoms are due to acid

reflux in the esophagus. Additionally, he stated that the

Veteran's dysphagia was probably due to his Schatzki ring,

which was an incidental (and probably life-long) condition

that was unrelated to acid reflux, GERD, or anxiety or

stress.

The examination record also reflects the Veteran's history of

a pattern of cramps, urgency, and loose stool after meals

since approximately 1974, after he separated from service.

The Veteran also reported having intestinal pain, nausea

several times a week, vomiting less than weekly, and

constipation less than monthly. Based on the Veteran's

history, review of the claims file, and examination, the

examiner diagnosed the Veteran with IBS. The examiner stated

that the Veteran's IBS was less likely as not caused by or a

result of the episodes of constipation in service or the

service connected anxiety disorder. He explained the while

stress can commonly affect the function of the intestinal

tract (as in having diarrhea before a big examination),

stress or anxiety do not directly cause the intestinal tract

to be "irritable". Furthermore, the examiner believed that

the IBS had not onset during service because the Veteran had

reported that the onset of his condition had post-dated

service.

The veteran claims that he has had stomach problems and runny

bowel movements which started in service. See January 2008

Board hearing. The Board finds the Veteran's report of

having running bowels and stomach problems in service to be

credible. The Board further finds that his assertion that he

has continued to have these symptoms since service to be

credible as well. The Veteran's complaints of stomach

problems and runny bowels have been diagnosed as IBS. While

a VA physician has stated that IBS was not related to the

veteran's episodes of constipation in service, there was no

opinion given to the effect that the IBS was not related to

the stomach problems and runny bowels the veteran reported

having in service. The Board finds that the Veteran is

credible to give lay statements regarding having symptoms of

runny bowels and stomach pains in service which continued

after service. Since these symptoms have been linked to a

diagnosis of IBS and since the Board finds it credible that

these symptoms have existed since service, the Board finds

that service connection for IBS is warranted.

With respect to the claim of service connection for GERD, the

Board notes that the veteran has a current diagnosis. His

service medical records reveal that the veteran was treated

for nausea, general weakness and stomach cramps which were

assessed as an intestinal flu. Although the veteran reported

having heartburn, vomiting, weekly regurgitation and rare

dysphagia in 1974, the Board finds that his statements during

his January 2008 Board hearing, to the effect that these

types of symptoms were first manifested in service and

continued after service, to be credible. While the VA

examiner in December 2008 stated that the Veteran's GERD was

not related to motion sickness or to the service-connected

anxiety disorder, the examiner did not related that his GERD

was not related to his episodes of nausea, heartburn, etc.,

that he had in service. In applying the benefit-of-the-doubt

doctrine, the Board finds that service connection for GERD is

warranted.

ORDER

Service connection for IBS is granted.

Service connection for GERD is granted.

____________________________________________

K. Osborne

Veterans Law Judge, Board of Veterans' Appeals