Citation Nr: 18148157 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-60 204 DATE: November 6, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for an undiagnosed Gulf War illness manifested by irritable bowel syndrome (IBS) is denied. REMANDED Entitlement to service connection for acid reflex is remanded. FINDINGS OF FACT 1. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge 2. The Veteran is not and has never been diagnosed with IBS, and does not have and has never had an undiagnosed illness; a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; or a diagnosable chronic multi-symptom illness with a partially explained etiology. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for an undiagnosed Gulf War illness manifested by IBS have not been met on either a presumptive or direct basis. 38 U.S.C. §§ 1110, 1117, 1118, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2008 to March 2012. He is a Gulf War Veteran. As a preliminary matter, the Veteran received an other than honorable discharge for misconduct due to drug abuse. In a July 2013 administrative decision, the VA Regional Office (RO) determined that the Veteran’s time in service is considered honorable for the purpose of establishing eligibility to VA benefits. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) North Carolina RO denying the Veteran service connection for tinnitus and service connection for an undiagnosed Gulf War illness manifested by acid reflux and IBS. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if (a) manifest to compensable degree within one year of discharge from service; (b) there is evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease; or (c) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding tinnitus is an organic disease of the nervous system where there is acoustic trauma); see also Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995. The law provides compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A “Persian Gulf Veteran” is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The United States Congress has defined the Persian Gulf War as beginning on August 2, 1990, the date that Iraq invaded the country of Kuwait, through a date to be prescribed by Presidential proclamation of law. 38 C.F.R. § 3.2(i). Service connection may be granted on a presumptive basis for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1); see also 81 Fed. Reg. 71,382 (Oct. 17, 2016) (extending the date by which a disability must manifest to a degree of 10 percent or more for purposes of 38 C.F.R. § 3.317, from December 31, 2016, to December 31, 2021). Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of presumptive service connection for Persian Gulf veterans under 38 C.F.R. § 3.317, a “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of 38 C.F.R. § 3.317, the term “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and that has features such as fatigue, pain, and/or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not to be considered medically unexplained. Id. The term “objective indications of chronic disability” includes both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Additionally, disabilities that have existed for six months or more, as well as disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4) (providing that the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest). Under 38 C.F.R. § 3.317, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least six months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least three months prior to diagnosis. 38 C.F.R. § 3.317(a)(2)(i)(B)(3). 1. Entitlement to service connection for tinnitus The Veteran contends that he currently has tinnitus that is related to his active duty military service, to include his reported noise exposure therein. Regarding the first element of service connection, a current disability, the Board notes that the Veteran is competent to state whether he has, or has had, tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). As current tinnitus has been established, the question on this issue becomes whether that disability is related to the Veteran’s active duty service. The most probative evidence indicates that it is not. Service treatment records do not show that the Veteran was treated for or complained of tinnitus in service. Moreover, the separation exams indicate normal hearing. In a Post Deployment Heath Reassessment from June 2011, the Veteran stated that he did not experience ringing in the ear as a deployment related condition. During a March 2014 VA examination, the Veteran reported that his tinnitus only occurs after exposure to loud noises then subsides. The Veteran reported that he began to notice problems with his hearing after leaving the military and that he was exposed weapons fire on range, warehouse noises, and explosions. The examiner noted that his civilian noise exposure included power tools, machine noise/factory work, construction work noise and firearms. The examiner noted that the tinnitus that the Veteran is currently experiencing is provoked and not a residual issue due to military service. The VA examiner therefore opined that the etiology of the tinnitus was less likely than not caused by or a result of military noise exposure. The Veteran underwent a VA examination on December 2016. The December 2016 VA examiner noted that the Veteran had reported the presence of temporary ringing in his ears only after exposure to loud sounds such as those experienced in the factory where he was working at the time. The examiner stated that the presence of temporary tinnitus following exposure to loud noise is typical and does not indicate a permanent noise injury. The Veteran also reported to the examiner that he experiences ringing in his ears approximately once per month with each episode lasting a few seconds to a few minutes. The examiner stated that brief spontaneous tinnitus, lasting seconds to minutes, is a nearly universal sensation. The VA examiner opined that it is less likely than not that the Veteran’s tinnitus is the result of military noise exposure due to the low probability of hazardous noise exposure, the absence of objective evidence to support a noise injury during military service and the Veteran’s report of tinnitus occurring no more than would be expected in the general population. The Board has first considered whether tinnitus is warranted on a presumptive basis. However, the clinical evidence of record fails to show that bilateral hearing loss manifested until 201, more than one year after service discharge. The Veteran also reported that he had noticed the onset of tinnitus after service discharge in a March 2014 VA examination report. Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, for tinnitus is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. While the evidence of record shows that the Veteran has current tinnitus, the probative evidence of record demonstrates that such is not related to his service. Both the March 2014 and December 2016 VA examiners opined that the Veteran’s current tinnitus is less likely than not related to his military noise exposure. The opinions were provided following examination of the Veteran and review of the claims file, and provided an adequate rationale for the conclusions reached. Thus, the Board finds that the examiners’ opinions are entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no probative opinion to the contrary. To the extent the Veteran believes that his current tinnitus is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, tinnitus can have many causes such as acoustic trauma, medications, infections, and diseases, and medical expertise is needed to determine the etiology of the disorder. Accordingly, the Veteran’s opinion as to the etiology of his tinnitus, which was first shown by competent and credible evidence many years after service, is not competent medical evidence. The Board finds that the only medical evidence of record, the findings and opinion of the March 2014 and December 2016 VA examiners, to be of greater probative value than the Veteran’s lay contentions. Upon review of the evidence, the Board finds the preponderance of the evidence is against the claim. In summary, the Board finds that tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable to this claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for an undiagnosed illness manifested as IBS. The Veteran’s service personnel records reflect that he served in Southwest Asia and participated in Operation Iraqi Freedom. The Veteran generally contends that he has undiagnosed Gulf War illnesses, manifested by IBS. See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. §§ 3.317(e)(1), 3.317(e)(2). However, the Board finds that the Veteran does not currently have and has never had any objective indications of an undiagnosed or medically unexplained chronic multi-symptom illness manifested by acid reflux and IBS. The Veteran’s service treatment records do not show any relevant complaints, findings, or diagnoses related to an undiagnosed or medically unexplained chronic multi-symptom illness. In a Post Deployment Health Reassessment from June 2011, the Veteran said that he did not experience diarrhea, vomiting or frequent indigestion problems, related to his deployment. The Veteran was afforded VA Gulf War General Medical Exam on January 2017. During this examination, the Veteran reported that he felt that he has irritable bowel syndrome but he denied being diagnosed with the condition and that he noticed problems with gas after his deployment. The VA examiner found that there was insufficient evidence to substantiate the Veteran’s contention for service connection regarding his IBS. Moreover, the examiner noted that the Veteran has a diagnosis for gastroesophageal reflux disease (GERD) as well as lactose and egg intolerance. The VA examiner opined that there is no undiagnosed illness or diagnosable but medically unexplained chronic multi symptom illness of unknown etiology or diagnosable chronic multi symptom illness with a partially explained etiology is identified in this Veteran either through claims file documents or this VA examination. Furthermore, the VA examiner noted that while the Veteran has experienced alterations in bowel habits, it is a result of his diet and not IBS. The examiner explained that IBS could not be diagnosed because the Veteran did not meet the “ROME III” criteria and that he did not have two or more additional symptoms. The Veteran did not experience pain associated with bowel movements, no link to discomfort and change in the consistency of his stool, no blood or mucus in stool. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328,1332 (1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. As the evidence does not show that the Veteran has IBS, the Board finds that service connection cannot be granted. Moreover, the record reflects that the Veteran does not have and has never had: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology; or (3) a diagnosable chronic multi symptom illness with a partially explained etiology. As previously discussed, the Veteran’s aforementioned symptoms were medically attributed GERD and his lactose and egg intolerance. Further, the record reflects that the Veteran is not and has never been diagnosed with IBS; as such, he has no current disability for consideration of direct service connection. To the extent the Veteran believes that his claimed IBS is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Veteran’s opinion as to the etiology of his claimed IBS is not competent medical evidence. The Board finds that the only medical evidence of record, the findings and opinion of the January 2017 VA examiner, to be of greater probative value than the Veteran’s lay contentions. Upon review of the evidence, the Board finds the preponderance of the evidence is against the claim. Based on the aforementioned, neither presumptive service connection due to an undiagnosed Gulf War illness nor direct service connection is warranted. See 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317; Combee v. Brown, 34 F.3d 1339, 1043 (1994); Shedden v. Principi, 381 F.3d 1163 (2010). As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable to this claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for acid reflex is remanded. The Veteran has generally asserted that his acid reflux is the result of his service or that this condition had its onset during service. A January 2017 VA examiner noted that the Veteran had been diagnosed with GERD, lactose intolerance and egg intolerance and that those conditions are diseases with clear and specific etiology and diagnosis. However, the examiner did not specify the etiology of these conditions. On remand, such an opinion should be obtained. Finally, due to the length of time which will elapse on remand, updated VA treatment records that are not already associated with the record should be obtained for consideration in the Veteran’s appeal. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include VA treatment records dated from December 2017 to the present should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford his representative an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above listed development and obtaining as much outstanding evidence as is available, then return the claims file, to include a copy of this remand, to the January 2017 VA examiner for an addendum opinion. If the examiner who drafted the January 2017 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran’s GERD, lactose intolerance and/or egg intolerance first manifested in service OR is due to an event in service? Any opinion expressed should be accompanied by a supporting rationale. The examiner must provide a complete rationale for all opinions and conclusions reached. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk