Citation Nr: 18143852 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 13-18 565 DATE: October 22, 2018 ORDER Service connection for tinnitus is granted. Service connection for sinusitis is granted. The claim of entitlement to service connection for irritable bowel syndrome (IBS) is denied. REMANDED The claim of entitlement to service for a disability manifesting as a cough is remanded. The claim of entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. The claim of entitlement to service connection for a left foot disability is remanded. The claim of entitlement to service connection for an acquired psychiatric disability is remanded. The claim of entitlement to an initial compensable rating for bilateral hearing loss is remanded. The claim of entitlement to an initial compensable rating for acne is remanded. FINDINGS OF FACT 1. Tinnitus incepted while in service. 2. Sinusitis is caused by exposure to burn pits in Iraq. 3. The Veteran does not have an IBS diagnosis. CONCLUSIONS OF LAW 1. The criteria are met for service connection for tinnitus. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303. 2. The criteria are met for service connection for sinusitis. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303. 3. The criteria are not met for service connection for IBS. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1996 to September 1998 and from October 2007 to October 2008. The Board notes the Veteran had requested a personal hearing, but withdrew his request in January 2018. His representative filed a notice to withdraw the appeal at the same time; however, given that the notice the Veteran filed did not clearly include a withdrawal of his appeal, the Board asked him for clarification on whether he intended to withdraw his appeal or only the hearing. He did not respond to that letter, and therefore the Board is continuing with appellate review of the claims. Service Connection Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where 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 requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). 1. Service connection for tinnitus is granted. The Veteran is diagnosed with tinnitus, which he asserts started while he was in service. His STRs do not show a tinnitus diagnosis Tinnitus is defined as “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is “subjective,” its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). The October 2011 VA examiner did not provide an opinion on whether tinnitus is related to service. He did not find any mention of tinnitus in the Veteran’s STRs, except that the Veteran denied having ringing in the ears in his August 2008 post-deployment health assessment. He noted the Veteran reported an onset in service, but indicated that he could not render an opinion without resorting to speculation. As mentioned, the Veteran has reported an onset of tinnitus while in service. Although he denied having ringing in his ears in August 2008, tinnitus manifests as other types of sounds that were not specifically denied. Further, the record does not contain a separation examination from that period of service. That is, his STRs do not contradict the Veteran’s statements; rather, they do not confirm them. The Veteran has argued that his symptoms began in service. He is competent to identify his own tinnitus. The Board finds his statements credible, as there is no evidence that is inconsistent with his assertion. There is no probative medical evidence that outweighs the Veteran’s statements. Accordingly, as tinnitus is capable of lay identification, and the Board finds the Veteran’s testimony as to onset as credible, then service connection for tinnitus is warranted. 2. Service connection for sinusitis is granted. The Veteran is diagnosed with sinusitis. He asserts that it is related to his service in Iraq, where he served from March to September 2008. On his August 2008 post-deployment health assessment, he reported exposure to burning trash or feces. He reported to the VA examiner that he thought his sinusitis came from this exposure, as his symptoms started after he returned. The October 2011 VA examiner opined that sinusitis was as likely as not related to burn pit exposure in service. Accordingly, service connection is warranted. 3. The claim of entitlement to service connection for IBS is denied. The Veteran has claimed service connection for IBS; however, the record does not show he has a current diagnosis of IBS. Indeed, at the October 2011 VA examination, he denied ever having been diagnosed with it, and the examiner noted that he made no complaints that are associated with IBS. Review of this examination does not reveal evidence of a GI-related undiagnosed illness considering the provisions of 38 C.F.R. § 3.317. As there is no current diagnosis of IBS, this claim must be denied. 38 U.S.C. § 1110; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (generally observing that in the absence of proof of a current disability, there can be no valid claim). There is no diagnosis at a time relevant to this appeal. REASONS FOR REMAND 1. The claim of entitlement to service connection for GERD is remanded. The Veteran has reported an onset of GERD symptoms while still in service. He reported being diagnosed with dyspepsia while in Iraq, and was treated with tums and Pepto Bismol. He now reports that he is on prescription omeprazole. The October 2011 VA examiner did not provide an opinion on a relationship to service. 2. The claim of entitlement to service connection for a disability manifesting as a cough is remanded. The Veteran’s cough has been attributed to his GERD, therefore this claim is inextricably intertwined with that claim, and must also be remanded. However, an opinion must also be obtained as to whether the Veteran’s cough is a separate disability or only a symptom of other disabilities. 3. The claim of entitlement to service connection for a left foot disability is remanded. The Veteran has claimed service connection for a left foot disability, resulting from a spider bite followed by cellulitis while in service. The October 2011 VA examiner opined the findings at the examination were consistent with plantar fasciitis, rather than an insect bite. This is inadequate, as it does not address whether there are residuals from the spider bite and cellulitis. An updated examination is warranted. 4. The claim of entitlement to service connection for an acquired psychiatric disability, including PTSD, is remanded. The Veteran has claimed service connection for PTSD. The October 2011 VA examiner opined he did not have any acquired psychiatric disability, and therefore did not provide an opinion on a relationship to service. However, VA treatment shows he has been diagnosed with PTSD, and has been in therapy and anger management for some time. On remand, another examination must be conducted. 5. The claim of entitlement to an initial compensable rating for bilateral hearing loss is remanded. The record suggests the Veteran’s hearing loss has increased in severity, and an updated VA examination is warranted, as the most recent is from October 2011. VA treatment records show hearing tests conducted in 2018 and in 2014. These hearing tests must be obtained for review. 6. The claim of entitlement to an initial compensable rating for acne is remanded. The most recent VA examination for acne was in October 2011. The available evidence is insufficient to determine the current state of his disability, and an updated VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. Obtain copies of VA hearing tests conducted in 2014 and 2018. 2. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on whether GERD is as likely as not (50/50 probability or better) related to his service. The examiner is asked to review the file prior to the examination. The Veteran reports that he began to have belching, epigastric pain, and reflux symptoms while still in Iraq, in or around July 2008. He reported that he was treated and diagnosed with dyspepsia. He was given Pepto Bismol and tums. He said these over-the-counter drugs helped for a while, but he is now on prescription omeprazole. The examiner is asked to elicit from the Veteran a detailed history of his symptoms and treatment in and since service. All opinions are to be supported with explanatory rationale. 3. After completion of directive 1, schedule the Veteran for an appropriate examination for an opinion on the cause of the Veteran’s cough. The examiner is asked whether his cough is a separate disability, or merely a symptom of another disability. If the Veteran has a disability manifesting as cough, the examiner is asked to provide an opinion as to whether it is as likely as not (50/50 probability or better) related to his service. 4. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on whether the Veteran has any residual disability as a result of an in-service spider bite that led to cellulitis. The Veteran is diagnosed with plantar fasciitis. The examiner is asked to opine on whether it is as likely as not (50/50 probability or better) that plantar fasciitis is caused or aggravated by the in-service spider bite and cellulitis. The examiner is asked to elicit from the Veteran a detailed history of his left foot symptoms in and since service, and to conduct a search of the relevant literature prior to opining. All opinions are to be supported with explanatory rationale. 5. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on whether any diagnosed acquired psychiatric disability is as likely as not (50/50 probability or more) related to his service. The examiner is asked to review the file prior to the examination. The October 2011 VA examiner did not diagnose any acquired psychiatric disability. However, a January 2018 VA treatment record shows that he has been diagnosed with PTSD in accordance with the DSM 5, and he is in therapy and anger management. A February 2011 VA treatment record shows a differential diagnosis of depression. This evidence must be discussed. The Veteran was deployed to Fallujah, Iraq. On his post-deployment health assessment, he denied feeling in danger of being killed, and denied having any experience that was frightening, horrible, or upsetting enough to cause nightmares, avoidance, watchful behavior, or detachment. The examiner is asked to address these denials with the Veteran. The examiner is asked to elicit from the Veteran a detailed history of his symptoms, and why he related them to his service. A thorough examination must be conducted along with all necessary diagnostic tests. All opinions must be supported with explanatory rationale. 6. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on the current severity of the Veteran’s hearing loss. Ask the Veteran to describe all functional loss as a result of his hearing loss. All opinions must be supported with explanation. 7. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on the current severity of his acne. Does he have deep acne (deep inflamed nodules and pus-filled cysts) on less than 40 percent of his face and neck, on more than 40 percent of his face and neck, or on other parts of his body than his face and neck? The examiner is also asked to conduct a scars examination for disfigurement of the head, face, and neck.   The examiner is asked whether any of the Veteran’s dermatological diagnoses are caused by or related to his acne, including rosacea. All symptoms attributable to his service-connected acne are to be listed. All opinions are to be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Gibson