190410-9561

CourtBoard of Veterans' Appeals
DecidedDecember 31, 2019
Docket190410-9561
StatusUnpublished

This text of 190410-9561 (190410-9561) is published on Counsel Stack Legal Research, covering Board of Veterans' Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
190410-9561, (bva 2019).

Opinion

Citation Nr: AXXXXXXXX Decision Date: 12/31/19 Archive Date: 12/31/19

DOCKET NO. 190410-9561 DATE: December 31, 2019

ORDER

Entitlement to service connection for irritable bowel syndrome (IBS) is denied.

Entitlement to service connection for asthma is denied.

Entitlement to service connection for gall bladder removal (cholecystectomy) is denied.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied.

Entitlement to service connection for gastroparesis is denied.

FINDINGS OF FACT

1. The preponderance of the evidence is against finding that IBS began during active service or is otherwise related to an in-service injury or disease.

2. The preponderance of the evidence is against finding that asthma began during active service or is otherwise related to an in-service injury or disease.

3. The preponderance of the evidence is against finding that gall bladder removal occurred in active service or is otherwise related to an in-service injury or disease.

4. The preponderance of the evidence is against finding that GERD began during active service or is otherwise related to an in-service injury or disease.

5. The preponderance of the evidence is against finding that gastroparesis began during active service or is otherwise related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for IBS are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for gallbladder removal are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for gastroparesis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active service from May 1983 to May 1987.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Board is honoring the Veteran's choice to participate in VA's Rapid Appeals Modernization Program (RAMP).

The Veteran selected the Supplemental Claim lane when she submitted the RAMP election form in May 2018, which affords her 30 days to submit additional evidence or to notify VA of evidence that VA could assist in gathering. The Veteran timely appealed an April 2019 RAMP rating decision to the Board.

In the April 2019 rating action, the RO issued favorable findings that new and relevant evidence had been received sufficient to reopen the claims for service connection in this decision. These service connection claims are addressed in the remand section below.

1. Service connection for IBS

2. Service connection for asthma

3. Service connection for gall bladder removal (cholecystectomy)

4. Service connection for GERD

5. Service connection for gastroparesis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

The analyses below focus on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

Initially, the Board notes that the Veteran’s service treatment records are unavailable. In a September 2014 letter, VA notified the Veteran that her service treatment records could not be located, and she was requested to submit any available evidence in support of her claims to include copy of her service treatment records. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board also notes that a military personnel record from September 1987 includes a notation that the Veteran had her medical and dental service treatment record but had not returned them. The RO has requested the Veteran provided these records, but she reports she does not have them.

The Board acknowledges that the lack of in-service records makes it more difficult to prove her case, but there are other avenues of providing evidence than just service treatment records. Here, for example, the Veteran has provided the statements from her family member and former spouse that she had symptoms of the disabilities on appeal during active service. However, the Veteran’s claim fails ultimately in that there are no competent medical opinions of record that suggest that the conditions on appeal are related to service.

A review of the medical evidence of record shows that the Veteran has provided a prescription medication list that shows her prescription history starting in 2002 up until the present day.

In an August 2013 private treatment letter, Dr. F.W. reports that the Veteran was first treated in 2002 for GERD and IBS. Dr. F.W. noted a history of a cholecystectomy in October 2010 and a diagnosis of gastroparesis in June 2012.

In a September 2013 private treatment letter, Dr.

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Related

Jandreau v. Nicholson
492 F.3d 1372 (Federal Circuit, 2007)
Timberlake v. Gober
14 Vet. App. 122 (Veterans Claims, 2000)
Rick K. Kahana v. Eric K. Shinseki
24 Vet. App. 428 (Veterans Claims, 2011)
Gilbert v. Derwinski
1 Vet. App. 49 (Veterans Claims, 1990)
O'Hare v. Derwinski
1 Vet. App. 365 (Veterans Claims, 1991)
Caluza v. Brown
7 Vet. App. 498 (Veterans Claims, 1995)
Rucker v. Brown
10 Vet. App. 67 (Veterans Claims, 1997)
Pond v. West
12 Vet. App. 341 (Veterans Claims, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
190410-9561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/190410-9561-bva-2019.