Citation Nr: 25014769 Decision Date: 12/10/25 Archive Date: 12/10/25 DOCKET NO. 18-47 029 DATE: December 10, 2025 ORDER Entitlement to service connection for a gastrointestinal disability, to include gastroenteritis, is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran has a current gastrointestinal disability to include gastroenteritis which began during active service, or is otherwise related to an injury or disease during active service, or caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability, to include gastroenteritis, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1986 to May 1991. He was a member of the Air Force Reserve and California Air National Guard from September 1993 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for gastroenteritis. The Veteran filed a notice of disagreement (NOD) in April 2016, and a statement of the case (SOC) was issued in September 2018. He perfected a timely appeal in October 2018. In December 2020, the Veteran presented sworn testimony during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In an October 2021 decision, the Board, in pertinent part, denied the claim of entitlement to service connection for a gastrointestinal disability to include gastroenteritis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). While the appeal was pending at the Court, the Veteran's attorney and VA's General Counsel filed a Joint Motion for Partial Remand. In an October 2023 order, the Court granted the motion, vacated that portion of the Board's October 2021 decision denying service connection for gastroenteritis, and remanded the matter for further development in compliance with the directives specified in the Joint Motion. In November 2023, the Veteran's attorney filed an Application for Attorney Fees and Expenses under 28 U.S.C. § 2412(D) in the amount of $7,414.19. VA's General Counsel did not contest the reasonableness of the amount for the sole purpose of avoiding further litigation and the costs related thereto. In December 2023, the Court granted the application in the amount sought. In the October 2023 Joint Motion, the parties agreed that "the Board failed to provide an adequate statement of reasons or bases when it did not address whether the duty to assist was satisfied under 38 C.F.R. § 3.159(e)(2), as it pertains to private treatment records from Dr. Xenakis." The parties noted that these records had been referenced in a November 2020 medical report from Craig N. Bash, M.D. Here, the Board notes that in connection with his claim, the Veteran was advised to submit or identify records of treatment for his claimed disabilities. Additionally, at the December 2020 Board hearing, the Veteran's attorney delineated the evidence he would be submitting in the 30 day period of time granted by the undersigned, including General Xenakis's report." That report was submitted but, unfortunately, Mr. [REDACTED] did not submit or identify any treatment records from that provider. The report itself indicates that Mr. [REDACTED] had referred the Veteran to Dr. Xenakis for "a review of his medical records, illnesses and injuries, and assistance with an appeal for claims to the Veterans Administration [sic]." At no point in the report did Dr. Xenakis indicate that he had ever treated the Veteran, nor was there such a suggestion otherwise in the record. Nonetheless, given the JMR, in a February 2024 Board decision, the claim was remanded for further evidentiary development. The AOJ was instructed that, after obtaining the appropriate release of information forms where necessary, undertake appropriate efforts to procure any records of outstanding treatment for Stephen Xenakis, M.D., as referenced in the November 2020 private medical opinion from Craig N. Bash, M.D. In response to the February 2024 remand, VA sent the Veteran a letter dated in February 2024, in which he was specifically asked to complete a VA Form 21-4142, Authorization and Consent to Release Information, with respect to any outstanding treatment records, including those from Stephen Xenakis, M.D. The Veteran's attorney was also sent a copy of the February 2024 letter. Despite the treatment records being the subject of the October 2023 Joint Motion, neither the Veteran nor his attorney responded to this letter and did not provide a VA Form 21-4142, which would have enabled the RO to request the outstanding records pursuant to the February 2024 Board remand instructions. An SSOC was issued in October 2024, in which the RO noted the Veteran's failure to submit a VA Form 21-4142, in response to the February 2024 letter. Accordingly, the Board finds that its ordered development has been completed to the extent possible, and no further action is necessary. Stegall v. West, 11 Vet. App. 268 (1998). VA has satisfied its duties to notify and to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). To this end, the Board finds that VA has no further duty with respect to these records as the Veteran failed to meet his duty to cooperate with VA's reasonable efforts to obtain them by providing the necessary information and authorizing the release of these records. 38 C.F.R. § 3.159(c). Review of the record therefore reflects substantial compliance with the Board's February 2024 Remand directives. See Stegall, 11 Vet. App. at 271. Neither the Veteran nor his attorney has raised any other issues with respect to VA's duty to notify or duty to assist in response to the October 2024 SSOC. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). The applicable criteria provide for a 30 day period to respond to an SSOC. 38 C.F.R. § 19.52(c). The Board will therefore proceed with adjudication of this claim. The parties to the October 2023 Joint Motion identified no other errors in the Board's analysis as to the claim of entitlement to service connection for a gastrointestinal disability on appeal. Nothing in the Joint Motion suggests that the Board's reasons and bases as to the Veteran's claim was inadequate in any way. The Board is aware of the Court's often stated interest in conservation of judicial resources and in avoiding piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). Thus, if there were any additional errors in the Board's decision, the Joint Motion would have presumably been brought to the Board's attention for the sake of judicial economy. 1. Entitlement to service connection for a gastrointestinal disability, to include gastroenteritis. The Veteran seeks service connection for a gastrointestinal disability to include gastroenteritis, which he asserts was incurred during his active duty service. See the Veteran's claim dated August 2014. Alternatively, the Veteran has contended that he has gastrointestinal issues which are the result of stress from his psychiatric disability as well as a side effect of treatment, particularly medication, for his acquired psychiatric disability. See the Board hearing transcript dated December 2020. The Board notes that the Veteran's attorney has also raised an argument that the Veteran's claimed gastrointestinal disability is secondary to other nonservice-connected disabilities including traumatic brain injury and asserts that the gastrointestinal disability should not be adjudicated by the Board until "all continent appeals are decided." See, e.g., the written argument of the Veteran's attorney dated January 2024. To this end, the Veteran's attorney is essentially arguing that the Board's adjudication of the gastrointestinal disability should be effectively stayed pending the outcome of the TBI claim. Critically, as will be discussed below, the Veteran's claim is being denied herein because he is not diagnosed with a current gastrointestinal disability and therefore does not meet the first element of service connection. As such, the outcome of the TBI claim is not determinative in this matter. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or was aggravated beyond its normal progression by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). In this matter, the question before the Board is whether the Veteran has a current disability that began during service, is otherwise causally related to an in-service injury or disease, or is causally related to or aggravated by a service-connected disability. For the reasons set forth below, the Board finds that entitlement to service connection for a gastrointestinal disability to include gastroenteritis is not warranted. The Veteran served on active duty from July 1986 to May 1991 and was thereafter a member of the Air Force Reserve and the California Air National Guard from September 1993 to November 2003. The Veteran's service treatment records (STRs) show that he complained of diarrhea and fever in June 1987 and was diagnosed with gastroenteritis. He was also diagnosed with gastroenteritis in October 1987, while seeking treatment for complaints of nausea, vomiting, and abdominal cramps. He reported feeling nauseated and lightheaded in November 1987 and was diagnosed with early viral syndrome. In February 1989, the Veteran reported diarrhea and recent weight loss; he was diagnosed with acute gastroenteritis and was admitted for treatment from February 15, 1989 to February 17, 1989. He was subsequently released to full duty. The post-active duty record on appeal is negative for complaints or findings of a gastrointestinal disability. Rather, these records affirmatively show that a gastrointestinal disability was not present. For example, a report of medical examination dated in September 1995 indicated that examination was normal in all pertinent respects. In a September 1995 report of medical history, the Veteran denied pertinent symptomatology, including stomach, liver, or intestinal trouble, frequent indigestion, and piles or rectal disease. Similarly, a report of medical examination conducted in May 2000 was again normal in all pertinent respects and on a May 2000 report of medical history, the Veteran again denied pertinent symptomatology, including stomach, liver, or intestinal trouble, frequent indigestion, and piles or rectal disease. Post service VA and private treatment records are also negative for complaints or findings of a gastrointestinal disability, to include gastroenteritis, at any time. Rather, these records show that the Veteran repeatedly denied gastrointestinal symptoms, to include abdominal pain, nausea, vomiting, diarrhea, constipation, and heartburn. See private treatment records dated June 2008, May 2020, and June 2020; VA treatment records dated April 2004, November 2007, August 2008, January 2012. Examination of the Veteran's gastrointestinal system during this period has been consistently normal, with no abdominal tenderness and normal bowel sounds, and review of his systems consistently indicated that he reports no gastrointestinal symptoms, to include abdominal pain, nausea, vomiting, diarrhea, change in bowel habits, or black or bloody stools. Id. Notably, a February 2014 VA treatment record did document the Veteran's report of loss of appetite, which the treatment provider identified as a symptom of depression and anxiety. Neither the Veteran nor the treatment provider indicated that this loss of appetite was due to any identified gastrointestinal disability; rather, this statement was made in the context of psychological treatment. See the VA treatment record dated February 2014. The Board notes that the Veteran has been in receipt of a 70 percent rating from March 17, 2014 for service-connected psychiatric disability. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In support of his claim, the Veteran has submitted a June 2014 neuropsychological evaluation from Karen J. Haskett, Ph.D., who reported that the Veteran's mental health history includes complaints of flashbacks from incidents in Kosovo, intrusive recollections and "physiological responses of nausea and rapid heart rate." Significantly, Dr. Haskett only noted the symptom of nausea as a physiological response to flashbacks and intrusive thoughts, and did not indicate that the Veteran was diagnosed with a current gastrointestinal disability. The Veteran also submitted a private evaluation from Stephen N. Xenakis, M.D., dated March 2017, in which Dr. Xenakis indicated that the Veteran has "gastrointestinal issues." Dr. Xenakis reported, [The Veteran] complains of gastrointestinal problems that cause nauseated stomach, heartburn, intestinal pain, and frequent bowel distress (diarrhea/constipation). [The Veteran] was hospitalized in the Philippines in 1988 at Clark - Air Base with gastrointestinal issues similar to dysentery. He has experienced continual problems since that time, but they have increased in severity in the last few years. In addition to residuals stemming from gastrointestinal disorder/dysentery while in service, gastrointestinal conditions are commonly associated with TBI, PTSD, anxiety and depression disorders. Gastrointestinal problems are also side effects of Lisinopril (can cause nausea, vomiting, diarrhea, upset stomach) and Amlodipine Besylate (can cause stomach pain, nausea). These are drugs that [the Veteran] has been prescribed by VA for his hypertension and blood pressure. As [the Veteran] experienced stomach issues while in service that have been intermittently recurrent and because his issues are also side effects of the prescription medication he takes for hypertension (which I opine as service-connected), [the Veteran's] gastrointestinal issues are 'at least as likely as not' caused by his military service. Additionally, the Veteran submitted a November 2020 opinion from Craig N. Bash, M.D., in which he indicated that service connection should be granted because the medical literature establishes a well-known association between gastrointestinal issues such as reflux symptoms and GERD and psychiatric disabilities and because the medical literature also establishes that certain medications and dietary supplements can cause heartburn pain. Dr. Bash indicated that "Dr. Xenakis also discusses the established association of gastrointestinal issues to TBI, PTSD/psychological disorders, and medications. He also notes that the Veteran began intestinal issues while in service (dysentery). I concur with his findings as gastrointestinal issues are well known to be associated with said in medical literature." Dr. Bash then cited three journal articles in support of his conclusion. Notably, in a September 2023 VA headaches examination report, the examiner noted that the Veteran experiences nausea as a symptom of migraine headaches. Based upon the evidence of record set forth in pertinent part above, the Board finds that the Veteran does not have a current gastrointestinal disability, to include gastroenteritis, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges that STRs corresponding to the Veteran's period of active duty reflect he was diagnosed as having gastroenteritis in June 1987, October 1987, and February 1989. That a disease or injury occurred during active service, however, is not enough to establish service connection. Rather, there must be a current disability resulting from that in-service disease or injury. In this case, the Board concludes that there is no evidence that the Veteran currently has a gastrointestinal disability, to include gastroenteritis. First, the record contains no competent evidence of a current diagnosed gastrointestinal disability. None of the clinical evidence of record contains a current diagnosis of a gastrointestinal disability. Similarly, none of the medical opinions submitted by the Veteran, to include those from Dr. Xenakis, Dr. Bash, and Dr. Haskett contain a diagnosis of a gastrointestinal disability. Although a February 2014 VA treatment record documented the Veteran's report of loss of appetite; demonstrable sustained weight loss due to gastrointestinal symptoms has not been documented in his treatment records. Rather, the clinical evidence of record documents that the Veteran's BMI has consistently been in the overweight and obese categories. Moreover, as detailed above, the Veteran's post-service treatment records show that, in clinical settings while seeking treatment, he has repeatedly denied gastrointestinal symptoms, and his gastrointestinal system was consistently described as normal by his treatment providers. See private treatment records dated June 2008, May 2020, and June 2020; VA treatment records dated April 2004, November 2007, August 2008, January 2012. To this end, the Board assigns more probative weight to the contemporaneous evidence of record, particularly the Veteran's statements in the context of seeking treatment, than to the Veteran's statements made in the context of a claim for monetary benefits. Moreover, although Drs. Haskett, Xenakis, and Bash reported that the Veteran endorsed various gastrointestinal symptoms, neither of the three private examiners reported that the Veteran is diagnosed with a current gastrointestinal disability. As such, the Board concludes that the Veteran does not have a current gastrointestinal disability, to include gastroenteritis, and has not had any such disability during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the clinical evidence of record is negative for a diagnosis of a current gastrointestinal disability, to include gastroenteritis, the Board notes that "disability" as defined in 38 U.S.C. §§ 1110 and 1131 refers to the functional impairment of earning capacity, not the underlying cause of said disability. See Saunders v. Wilkie, 866 F.3d 1356 (2018). In this case, however, there is no evidence, lay or clinical, showing that the Veteran has any gastrointestinal related impairment which rises to a level to affect earning capacity. He has not shown or specifically alleged that he has manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). In fact, the description of the Veteran's gastrointestinal symptoms, as reported by Drs. Haskett, Xenakis, and Bash do not rise level of compensability under the schedule of ratings for the digestive system as set forth in 38 C.F.R. § 4.114. For example, although Dr. Xenakis stated that the Veteran experiences nauseated stomach, heartburn, intestinal pain, and frequent bowel distress (diarrhea/constipation), there is no documentation that such symptoms are productive of considerable impairment of health, as would be required to rate by analogy under Diagnostic Codes 8346 (hiatal hernia). Similarly, the Veteran has not reported disturbances of bowel function with abdominal distress, such as to rate by analogy under Diagnostic Code 7319 (irritable colon syndrome) Moreover, while the Veteran has reported a diarrhea and loss of appetite, there is no documentation of impairment of health including weight loss or inability gain weight, as would be required to rate by analogy under Diagnostic Code 7328 (Intestine, small, resection of). The record therefore lacks evidence of a current disability. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that, at some time during the current claim, the Veteran has the disability for which benefits are being claimed. Here, however, as noted above, the evidence of record does not establish that, at any time during the current claim, the Veteran has had a gastrointestinal disability, to include gastroenteritis. In this regard, the Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury. 38 U.S.C. § 1110. In the absence of a current disability, the analysis ends, and the claim for service connection for gastroenteritis cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board notes that the Veteran was not afforded a VA medical examination in connection with this claim. As set forth above, however, the record contains no indication that a current disability may be associated with an established in-service disease, injury or event or a service-connected disability. Thus, an examination is not warranted. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Considering all the evidence, the Board finds it is persuasively against the Veteran having a current disability, or having had a gastrointestinal disability to include gastroenteritis, while this claim has been pending. As such, the Board concludes that the criteria for service connection are not met. 38 C.F.R. § 3.303. As the evidence is persuasively against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, Counsel 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.