Citation Nr: 18144530 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-19 921 DATE: October 25, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for irritable bowel syndrome (IBS) is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as sleep disturbance, is denied. Entitlement to a compensable disability rating for headaches is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran’s tinnitus was not caused or aggravated by active duty, nor is it shown to have initially manifested within a year of discharge from a period of active duty. 2. A diagnosis of irritable bowel syndrome is not currently shown. 3. A diagnosis of an acquired psychiatric disorder, claimed as a sleep disturbance, is not currently shown. 4. Throughout the period on appeal, the Veteran’s migraine headaches have not been manifested by any prostrating attacks occurring on an average once a month over the last several months. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for the establishment of service connection for IBS are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for the establishment of service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 4. The criteria for an initial compensable disability rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8100 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was on active service from February 1978 to February 1982, February 1991 to July 1991, October 2001 to September 2002, and February 2003 to February 2004. The Veteran requested a Board hearing, which was initially scheduled for July 2018. That hearing was subsequently rescheduled for August 24, 2018. The Veteran failed to show for the rescheduled hearing. Records indicate that the Veteran received notification of the hearing scheduled for August 24, 2018. See Correspondence dated July 17, 2017. Nevertheless, the Veteran failed to show for the hearing and failed to explain his absence. Therefore, the Board hearing is considered withdrawn. See 38 C.F.R. § 20.704 (d) Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, such as organic diseases of the nervous system to include tinnitus, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). Service connection can also be established on the basis of continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system to include tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53. 1. Entitlement to service connection for tinnitus The Veteran claims service connection for tinnitus, alleging that he has ringing in his ears that is due to noise exposure during active service. Initially, the Board notes that the Veteran can self-diagnose tinnitus because its symptoms are observable through the senses. As an initial matter, there is no medical evidence of a hearing complaints until approximately one decade after discharge from service. The Board recognizes that the Veteran’s service treatment records are unavailable for review, see Formal Finding on the Unavailability of STRs (dated May 2, 2012), however, this does not lower the burden for the Veteran. Rather, it heightens the duty of the Board to explain its findings and conclusions, to carefully consider the benefit-of-the- doubt rule, and to assist the Veteran in developing his claim. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Ussery v. Brown, 8 Vet. App. 64 (1995). Here, the Veteran has not provided any medical evidence of complaints of tinnitus during service or manifesting within one year of discharge from service. The limited service treatment records available include a report of medical history from 1977 reporting no health issues and reports of medical exams in December 1977 and December 1981 which do not note any hearing related issues. The medical evidence of record shows that the Veteran the Veteran first reported tinnitus symptoms during an audiology consult in February 2014. See Loma Linda VA Records dated February 21, 2014. At that time, he reported having tinnitus for years but did not indicate whether he began experiencing symptoms during service or within one year of separation from service. The absence of post-service complaints, findings, diagnosis, or treatment for the claimed disorder for more than 10 years after service separation is one factor that tends to weigh against a finding of chronic symptoms of tinnitus after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Veteran’s statements, overall, do not indicate a basis for a grant of this claim. The Board finds that tinnitus did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for tinnitus are not applicable in this case. 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). 2. Entitlement to service connection for irritable bowel syndrome The Veteran contends that he has a colon disorder related to his military service. The question for the Board is whether the Veteran has a current disability that began during service or is “at least as likely as not” related to an in-service injury, event, or disease. However, the first question is whether he has this problem. The Board concludes that the Veteran does not have a current diagnosis of irritable bowel syndrome and has not had one at any time during the pendency of the claim or when the claim was filed. 38 U.S.C. §§ 1110 5107(b); 38 C.F.R. § 3.303(a); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran may believe that he has a current diagnosis of irritable bowel syndrome, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the Board finds that service connection is not warranted. 3. Entitlement to service connection for an acquired psychiatric disorder also claimed as sleep disturbance. The Veteran alleges that he has an acquired psychiatric disorder, claimed as a sleep disturbance, as a result of his active service. The Board finds that the Veteran does not have a current diagnosis of an acquired psychiatric disorder. The Veteran has not submitted or identified evidence of a current diagnosis of or treatment for an acquired psychiatric disorder. He has not provided any lay evidence as to this issue but has only made general assertions that he has this disability. The Board finds that the Veteran, as a layperson, is not competent to render a medical diagnosis, such as establishing that he has a psychiatric disorder. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, an opinion as to a specific diagnosis of a psychiatric disorder falls outside the realm of common knowledge of a lay person. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay persons not competent to diagnose complex medical conditions). It is not shown that the Veteran has such expertise to perform such testing and render a medical diagnosis. Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). Accordingly, on this record, the competent evidence does not establish the presence of a psychiatric disorder. Accordingly, the claim of service connection for an acquired psychiatric disorder, claimed as a sleep disturbance, is denied. 4. Entitlement to a compensable rating for post concussive headaches The Veteran alleges entitlement to a compensable rating for his post-concussive headaches. The Veteran was service-connected for headaches in a September 2013 rating decision with an evaluation of 0 percent effective July 12, 2011. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran is service-connected for migraine headaches currently rated as noncompensable. He claims that his disability is more severe than what is reflected by the current rating. The Veteran’s headaches are currently rated under Diagnostic Code 8100, which provides a noncompensable rating for characteristic prostrating attacks averaging less than one in two months over the last several months; a 10 percent rating for characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating for characteristic prostrating attacks occurring on an average of once a month; and 50 percent for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a (2017). The Rating Schedule does not define prostrating, nor has the Court. Fenderson v. West, 12 Vet. App. 119 (1999). Severe economic inadaptability is also not defined in VA statutes or regulations. Pierce v. Principi, 18 Vet. App. 440 (2004). Turning to the evidence of record, the Veteran was afforded a VA examination in March 2015. The Veteran was diagnosed with post concussive headaches. The Veteran reported ongoing throbbing headaches associated with sensitivity to light and sound with occasional lightheadedness. The Veteran was found to have characteristic prostrating attacks of migraine headaches occurring less than once every two months. See March 2015 VA Examination. More recent treatment records show continued complaints of headaches. A July 2016 MRI of the brain was unremarkable apart from a few nonspecific white matter changes that may be associated with migraine headaches. Under DC 8100, the criteria require a veteran to experience prostrating headache attacks occurring on average once every two months in order for a compensable rating to be warranted. As shown above, the weight of the evidence shows that the Veteran does not have characteristic prostrating attacks of migraines or non-migraine headache pain occurring on an average once every two months as contemplated by a higher disability evaluation under DC 8100. Accordingly, the criteria for a compensable evaluation for his headaches are not met at any time during the course of the appeal. In this regard, the Board does not suggest that the Veteran does not have problems. The only question is the degree of the problem and whether it meets certain criteria. In summary, while the Veteran clearly has some problems with headaches, the objective medical evidence is insufficient to show that the Veteran’s headaches are of such frequency and severity to meet the criteria for a compensable rating under DC 8100. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. After review of the claims file, the Board finds that additional development on the claim for service connection for GERD is warranted. The Veteran alleges that his GERD is related to his active duty service. As noted above, the Veteran’s service treatment records were formally deemed unavailable. Nevertheless, some service treatment records are available, including a December 1981 report of medical examination which notes that the Veteran had stomach trouble, cramps, indigestion, and nausea in approximately 1980 that was diagnosed as gastroenteritis. In August 2014, the Veteran reported having a 34-year history of GERD without adequate control of symptoms. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d) (West 2014); McLendon v. Nicholson 20 Vet. App. 79 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83 Although the Board regrets the delay, a VA examination to determine the etiology of the Veteran’s current GERD diagnosis is necessary. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. The Veteran should also be offered the option to provide any such record himself. 2. The Veteran should be scheduled for a VA examination before an appropriate physician to determine the etiology of his GERD. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has GERD causally related to active service? The examiner must note the Veteran’s in-service reports of gastrointestinal issues. 3. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Veteran should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. M. Woehlke, Associate Counsel