Citation Nr: 18131197
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-35 237A
DATE:	August 31, 2018
ORDER
1. Entitlement to service connection for irritable bowel syndrome (IBS) is granted.
2. Entitlement to service connection for a cervical spine disability, to include degenerative disc disease, cervical spondylosis, and thoracic outlet syndrome, is denied.
REMANDED
3. Entitlement to service connection for chronic fatigue syndrome is remanded.
4. Entitlement to service connection for a left shoulder disability is remanded.
5. Entitlement to service connection for myofascial syndrome is remanded.
FINDINGS OF FACT
1. The Veteran is diagnosed with irritable bowel syndrome (IBS) which is presumptively related to his active service in the Southwest Asia theater of operations during the Persian Gulf War.
2. A chronic cervical spine disability, to include degenerative disc disease and cervical spondylosis, did not have its onset during active service or within one year of service discharge and is not otherwise related to active service, to include thoracic outlet syndrome assessed in November 1988.
CONCLUSIONS OF LAW
1. The criteria for service connection for irritable bowel syndrome (IBS) have been met.  38 U.S.C. §§ 1110, 1117, 5107(2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017).
2. The criteria for service connection for a cervical spine disability, to include degenerative disc disease, cervical spondylosis, and thoracic outlet syndrome have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from February 1985 to February 1989 and from June 1989 to June 1993, to include service in the Southwest Asia theater of operations during the Persian Gulf War from August 1990 to March 1991.
The Board notes that additional VA and private evidence has been added to the claims file since the September 2015 statement of the case (SOC) was issued and the Veteran’s claims were subsequently certified to the Board in April 2016.  The Board is mindful that the Veteran’s formal appeal was submitted after February 2, 2013; as such, a waiver of initial review by the Agency of Original Jurisdiction (AOJ) is not required regarding the submitted private evidence.  See 38 U.S.C. § 7105(e) (2012).  With respect to the VA treatment records associated with the file, the Board notes that such records either support the grant of the Veteran’s IBS claim discussed below or are not relevant to his cervical spine claim denied below; as such, a remand for the issuance of a supplemental statement of the case (SSOC) considering such evidence would serve no useful purpose except to further delay the Veteran’s appeal.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  To establish a right to compensation for a present disability, 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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  
Additionally, service connection may also be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2017).  Functional gastrointestinal disorders, including irritable bowel syndrome (IBS), are considered medically unexplained chronic multisymptom illnesses that qualify as a chronic disability.  Id.
Even where service connection cannot be presumed, service connection may still be established on a direct basis.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  
1. Entitlement to service connection for irritable bowel syndrome (IBS).
The Veteran claims entitlement to service connection for IBS, to include presumptive service connection as due to Gulf War exposure.  Following a review of the evidence of record, the Board finds that presumptive service connection is warranted.  
An October 2015 VA examination documents the Veteran’s diagnosis of IBS since 1993.  The Veteran reported symptoms including alternating diarrhea and constipation.  The VA examiner noted that the Veteran’s symptoms included frequent episodes of bowel disturbance with abdominal distress, and concluded that his IBS was a functional gastrointestinal complaint which was related to active service in Southwest Asia.  
As noted above, IBS is a functional gastrointestinal disorder that constitutes a medically unexplained chronic multisymptom illness within the meaning of 38 C.F.R. § 3.317, and thus a chronic qualifying disability under 38 U.S.C. § 1117.  Additionally, the Board finds that the Veteran’s IBS has manifested to a compensable degree given his report and the October 2015 VA examiner’s finding of frequent episodes of bowel disturbance with abdominal distress.  See 38 C.F.R. § 4.114, Diagnostic Code (DC) 7319 (2017).  As there is no affirmative evidence that the disability was not incurred during the Veteran’s service in Southwest Asia, service connection for IBS is warranted on a presumptive basis in accordance with the provisions of 38 U.S.C. § 1117.
2. Entitlement to service connection for a cervical spine disability, to include degenerative disc disease, cervical spondylosis, and thoracic outlet syndrome.
The Veteran also claims entitlement to service connection for a cervical spine disability, to include degenerative disc disease, cervical spondylosis, and thoracic outlet syndrome, and originally claimed as an upper back or neck condition.  
Service treatment records do not document the onset of a chronic cervical spine disability.  In November 1988, the Veteran complained of sharp neck pain after getting up from a seated position quickly; his condition was assessed as upper thoracic facet syndrome.  Notably, a subsequent April 1991 report of medical history documents the Veteran’s denial of recurrent back pain.  Additionally, although the Veteran waived a separation examination in April 1993, a dental health questionnaire from the previous month documents his denial of any physician’s care; serious illness, operation, or hospitalization; or change in health in past two years; moreover, he did not indicate any relevant medical conditions or problems.  
Upon VA back examination in November 2011, the Veteran reported chronic thoracic spine pain and the examiner noted a diagnoses of thoracic outlet syndrome.  Upon VA cervical spine examination in April 2012, the VA examiner diagnosed degenerative disc disease and opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner noted that the Veteran was seen and treated for upper thoracic syndrome during active service; however, the Veteran’s current problem was degenerative disc disease which the VA examiner attributed to the normal aging process.  
Post-service private treatment records document relevant diagnoses, including cervical and thoracic spondylosis without myelopathy, and cervical radiculopathy, with related treatment.  Notably, however, private treatment records do not contain a positive nexus opinion which relate the Veteran’s current upper back or cervical conditions to his active service.  
The Board finds that the April 2012 VA examiner’s opinion is entitled to great probative weight as it was based upon a thorough review of the claims file and properly considered the Veteran’s service treatment records which document his November 1988 complaint of upper back pain assessed as upper thoracic facet syndrome; moreover, it is well-supported by a reasoned rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  
The Board has also considered the lay statements of record, which are probative evidence insofar as they report observable symptoms.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, to the extent that lay evidence of record asserts that the Veteran has a chronic cervical spine disability which is etiologically related to his active service, such statements are of little probative value given the Veteran’s lack of medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Moreover, the Veteran’s lay statements in support of his claim are of no probative value given their internal inconsistency. See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  During the pendency of his claim, the Veteran has asserted that his current cervical and upper back complaints began during active service in November 1988 when he complained of upper back and neck pain and was assessed with upper thoracic facet syndrome and have continued to the present time.  However, as discussed above, service treatment records clearly document the Veteran’s more contemporaneous denials of recurrent back pain and related health problems subsequent to his isolated in-service complaint in November 1988.  
In conclusion, the most probative evidence of record weighs against the Veteran’s claim of entitlement to service connection for a cervical spine disability, to include degenerative disc disease, cervical spondylosis, and thoracic outlet syndrome.  There is no probative evidence of record that a current cervical spine disability, diagnosed as degenerative disc disease and cervical/thoracic spondylosis, first manifested within one year of service discharge, and the preponderance of evidence weighs against a finding that a current cervical spine disability is otherwise etiologically related to active service.  As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim is denied.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
REASONS FOR REMAND
1. Entitlement to service connection for chronic fatigue syndrome is remanded.
An August 2016 rating decision denied the Veteran’s claim of entitlement to service connection for chronic fatigue syndrome.  In October 2016, the Veteran filed a timely notice of disagreement (NOD) as to that issue.  See 38 C.F.R. § 20.201 (2017).  A statement of the case (SOC) is required when a claimant protests a determination.  38 C.F.R. §§ 19.26, 19.29 (2017).  VA has not issued an SOC addressing that issue.  Therefore, remand is required for the issuance of an SOC regarding the Veteran’s claim.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  The SOC must be issued unless the Veteran’s claim is resolved, such as by a complete grant of the benefit sought, or withdrawal of the Veteran’s October 2016 NOD as to that issue.  
The remanding of this issue must not be read as an acceptance of jurisdiction over the same by the Board.  The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely NOD to a decision denying the benefit sought and a timely substantive appeal after issuance of an SOC.  38 U.S.C. § 7105 (2012); Roy v. Brown, 5 Vet. App. 554 (1993).  Therefore, the AOJ should return the Veteran’s claim of entitlement to service connection for chronic fatigue syndrome to the Board only if the Veteran perfects his appeal in accordance with the provisions of 38 U.S.C. § 7105.  
2. Entitlement to service connection for a left shoulder disability is remanded.
3. Entitlement to service connection for myofascial syndrome is remanded.
A November 2015 rating decision denied the Veteran’s claims of entitlement to service connection for a left shoulder disability and myofascial syndrome.  In January 2016, the Veteran filed a timely notice of disagreement (NOD) as to those issues.  See 38 C.F.R. § 20.201.  VA has not issued an SOC addressing these issues.  Therefore, remand is required for the issuance of an SOC regarding the Veteran’s claims.  See Manlincon, 12 Vet. App. at 240-41.  The SOC must be issued unless the Veteran’s claims are resolved, such as by a complete grant of the benefits sought, or withdrawal of the Veteran’s January 2016 NOD as to those issues.  
The remanding of these issues must not be read as an acceptance of jurisdiction over the same by the Board.  The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely NOD to a decision denying the benefit sought and a timely substantive appeal after issuance of an SOC.  38 U.S.C. § 7105; Roy, 5 Vet. App. 554.  Therefore, the AOJ should return the Veteran’s claims of entitlement to service connection for a left shoulder disability and myofascial syndrome to the Board only if the Veteran perfects his appeal in accordance with the provisions of 38 U.S.C. § 7105.  
The matters are REMANDED for the following action:
Provide the Veteran and his representative with a statements of the case (SOC) addressing the issues of (1) entitlement to service connection for chronic fatigue syndrome; (2) entitlement to service connection for a left shoulder disability; and (3) entitlement to service connection for myofascial syndrome.  The Veteran must be advised of the time limit in which he may file a substantive appeal as to those issues.  38 C.F.R. § 20.302(b) (2017).  If, and only if, the Veteran timely perfects an appeal, return the matters to the Board for further adjudication, if otherwise in order.

 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Chad Johnson, Counsel 

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