Citation Nr: 19129017 Decision Date: 04/15/19 Archive Date: 04/15/19 DOCKET NO. 17-67 581 DATE: April 15, 2019 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial compensable rating for allergic rhinitis is denied. REMANDED Entitlement to service connection for an ulcer is remanded. Entitlement to service connection for inflammatory bowel disorder is remanded. Entitlement to service connection for gastroesophageal reflux/acid reflux/ heartburn is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his exposure to acoustic trauma in service caused his tinnitus. 2. The preponderance of the evidence did not demonstrate that the Veteran's allergic rhinitis resulted in nasal polyps or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for an initial compensable disability rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 2000 to May 2004. This matter comes to the Board of Veterans' Appeals (Board) from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may be granted for an organic disease of the nervous system, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for tinnitus The Veteran has asserted that his service and the resulting exposure to acoustic trauma caused his current tinnitus. A review of the service medical records is silent for treatment for or a diagnosis of tinnitus while the Veteran was in active service. However, the Veteran has reported that he first experienced tinnitus while in active service. The Board also emphasizes that the Veteran is competent to report when he first experienced his tinnitus and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible. In this case, the first element to establish service connection is satisfied, the present disability, in that the Veteran was diagnosed with tinnitus by a VA examiner in January 2015. The second element is met as the Veteran credibly reported in-service noise exposure associated with working as an aviation airman. In the VA Form 9 Appeal to the Board of Veterans’ Appeals dated December 2017, the Veteran further explained that he worked near and was exposed to high levels of noise form aircraft on the “flight deck” of a naval ship. There is no reason to doubt the credibility of the Veteran's reports of in-service noise exposure and his statement is consistent with the circumstances of the Veteran's service. The remaining question is whether there is sufficient evidence a nexus between the Veteran's in-service noise exposure and his current tinnitus. The Veteran was provided a VA examination in January 2015. The VA examiner concluded the examination with a negative nexus opinion noting that the Veteran had normal hearing at enlistment and separation, and that his thresholds did not significantly change during service. However, the Board finds that the VA examiner did not adequately consider the Veteran's lay statements of the in-service noise exposure and the continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Moreover, even if disabling loss is not demonstrated at separation, the Veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service, and the opinion is found to support the proposition that the Veteran’s current disability is at least in part related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). There is no reason to doubt the credibility of the Veteran's reports of his continued symptoms since service. Accordingly, the Board finds that the evidence of record for and against the Veteran’s claim is at least in equipoise, and that entitlement to service connection for his tinnitus is therefore warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable rating for allergic rhinitis The Veteran seeks a rating in excess of an assigned noncompensable rating for his service-connected disability. The Veteran's allergic rhinitis was assigned a noncompensable disability rating under 38 C.F.R. § 4.97, Diagnostic Code 6522 in a March 2015 Rating decision. Allergic or vasomotor rhinitis is rated under Diagnostic Code 6522. Under Diagnostic Code 6522, allergic rhinitis warrants a 10 percent rating when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A maximum rating of 30 percent is warranted when polyps are present. 38 C.F.R. § 4.97, Diagnostic Code 6522. In considering the appropriate disability rating, the Board has also taken into account the Veteran's statements regarding his disability. The record reflects that the Veteran did note his nose bleeds since service and his resulting decreased sense of smell. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his nasal disability according to the appropriate diagnostic codes. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Turning to the medical evidence at hand, the only competent evidence concerning the nature and current extent of the Veteran's disability is the January 2015 VA examination, as the Veteran has not alleged a worsening of his symptoms since this examination. At the January 2015 examination, the examiner found that the Veteran had daily nasal congestion and clear rhinorrhea. The examiner also determined that the nasal obstruction was less than 50 percent on either side and that there are no polyps or other nasal masses. The examiner noted that the Veteran does have bilateral septal spurs and prominent anterior septal vessels on the right side. The examiner also noted that there is no facial pain with palpitation. As noted, the VA examiner found that the Veteran did not have nasal polyps, nor did he have a greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. Moreover, the Veteran's medical records do not contradict this finding and there are no other medical opinions that contradict the results of this examination. Thus, the Board finds that the most probative evidence is the January 2015 VA examination and that the preponderance of the evidence is against the grant of a compensable rating under Diagnostic Code 6522. REASONS FOR REMAND 1. Entitlement to service connection for an ulcer is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. As the Veteran's lay statements and service treatment records indicate that the Veteran may have a disability that could be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature, etiology, and severity for the Veteran’s claimed ulcer. Please note that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 2. Entitlement to service connection for inflammatory bowel condition is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. As the Veteran's lay statements and service treatment records indicates that the Veteran may have a disability that could be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature, etiology, and severity for the Veteran’s claimed inflammatory bowel condition. Please note that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 3. Entitlement to service connection for gastroesophageal reflux/acid reflux/ heartburn is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. As the Veteran's lay statements and service treatment records indicate that the Veteran may have a disability that could be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature, etiology, and severity for the Veteran’s claimed gastroesophageal reflux/acid reflux/heartburn. Please note that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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 his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. After the above-noted development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed inflammatory bowel disorder, gastroesophageal reflux/acid reflux/heartburn, and ulcer. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran’s lay statements, and private medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Determine if there is a current inflammatory bowel disability. b. Determine if there is a current gastroesophageal reflux/acid reflux/heartburn disability. c. Determine if there is a current ulcer disability. d. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed inflammatory bowel disorder was caused by the Veteran’s service. Please specifically address the service treatment records and explain how the in-service injury or illness may or may not be related to the current disability. e. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed gastroesophageal reflux/acid reflux/heartburn was caused by the Veteran’s service. Please address the service treatment records and explain how the in-service injury or illness may or may not be related to the current disability. f. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed ulcer was caused by the Veteran’s service. Please address the service treatment records and explain how the in-service injury or illness may or may not be related to the current disability. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel