Citation Nr: 19166329 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 14-38 335A DATE: August 27, 2019 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial rating of 60 percent, but no higher, for anal/perianal fistula claim as fecal incontinence is granted, subject to the regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome (IBS) is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current tinnitus is related to in-service acoustic trauma. 2. For the entire period on appeal, the Veteran’s anal/perianal has been manifested by extensive leakage and fairly frequent involuntary bowel movements; but have not demonstrated complete loss of sphincter control. 3. The Veteran is in receipt of the maximum schedular rating for his IBS, which results in diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for an initial rating of 60 percent, but no higher, for anal/perianal fistula claim as fecal incontinence have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2. 4.3, 4.6, 4.7, 4.10, 4.114, Diagnostic Code 7332. 3. The criteria for an initial rating in excess of 30 percent for IBS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 11, 2004 to August 25, 2004, and from May 5, 2006 to October 21, 2006, including service in the Southwest Theater of Operations during the Persian Gulf War. This matter came to the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the March 2012 rating decision, the RO, inter alia, denied entitlement to service connection for tinnitus and IBS. The Veteran disagreed with the RO’s determination, and a statement of the case was issued in November 2014. The Veteran timely appealed. In a March 2015 rating decision, the RO, inter alia, granted entitlement to service connection for IBS, and assigned an initial 10 percent rating effective August 30, 2011. The Veteran disagreed with the rating assigned. In a January 2016 rating decision, the RO increased the rating for IBS to 30 percent, and assigned an effective date of August 30, 2011, the date of the claim. In the December 2016 rating decision, the RO granted entitlement to service connection for anal/perianal fistula claim as fecal incontinence and assigned a 30 percent rating effective February 22, 2016. The RO also granted service connection for GERD and continued the 30 percent rating for IBS with GERD. The RO indicated that the two condition were evaluated together under the predominant disability. The Veteran disagreed with the disability rating assigned for anal/perianal fistula claim as fecal incontinence and the combined rating for IBS with GERD. The Veteran requested separate ratings for IBS and GERD. In August 2017, the RO proposed to sever service connection for GERD due to clear and unmistakable error (CUE). The RO found that all the criteria for service connection were not met at the time of the December 2016 decision establishing service connection for GERD. As GERD was noted to be a diagnosed condition with clear and specific etiology, a medical link was required to establish service connection between GERD and the verified in-service event of exposure to environmental hazards in Southwest Asia. In a November 2017 rating decision, the RO severed service connection for GERD due to CUE. In May 2018, the RO issued a statement of the case which continued the 30 percent ratings for IBS, and anal/perianal fistula, claim as fecal incontinence. The RO continued the denial of service connection for GERD. The Board notes that the Veteran did not file a timely notice of disagreement with the severance of GERD based on CUE. Consequently, this issue is not on appeal before the Board. 38 C.F.R. § 20.201 (requiring a notice of disagreement for an appeal of a denial of a decision by the agency of original jurisdiction). However, the Veteran did file a timely notice of disagreement with the decision to combine his IBS and GERD ratings and the RO continued the denial of service connection for GERD in the May 2018 SOC. Moreover, the severance was based on the fact that service connection was granted based on 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, but the severance did not effect, and indeed acknowledged, the fact that service connection could be established on a direct basis. The issue of entitlement to service connection for GERD therefore appears to be on appeal regardless of the separate severance of this disability and the Board will adjudicate it. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Tinnitus The Veteran seeks service connection for tinnitus. For the following reasons, the Board finds that service connection for tinnitus is warranted. In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, an April 2011 VA examination report shows a diagnosis of tinnitus. Thus, the first element for service connection has been met. The evidence of record also supports a finding that there was in-service noise exposure. Service treatment records (STRs) include a September 2016 post-deployment health assessment, on which the Veteran reported exposure to loud noises and excessive vibration. The Veteran denied ringing of the ears. A separation examination is not of record. In an April 2012 statement, the Veteran asserted that the statement of record indicating that he told the VA examiner that his tinnitus occurred within the last six months was probably a misunderstanding on the part of the examiner. The Veteran indicated that he advised the examiner that his tinnitus started within six months of his return from Iraq. He noted that his only noise exposure was on the flight-line during his service. The Veteran further noted that the only other job he has had was working in a VA regional office, which was a non-noisy environment. The Veteran’s Form DD-214 reflects that his military occupation was maintenance squadron. The Board finds the Veteran’s statements credible. Therefore, in-service noise exposure is established. In April 2011, the Veteran was afforded a VA examination. The examiner opined that it is less likely than not that tinnitus was caused or affected by noise exposure during active duty military service. The examiner’s rationale was there was no hearing loss for tinnitus to be associated. Tinnitus was denied at post-deployment assessment and not reported at reassessment. The examiner noted that tinnitus was reported to have onset of 6-8 months ago, over 4 years post deployment. Also, hearing loss was not reported following deployment. The examiner further noted that a shift in hearing during active duty service cannot be ruled out without audiometric data hence, it is less likely than not instead of not affected by noise during active duty military. In this case, although a VA examiner rendered the opinion that the Veteran’s current tinnitus disability was not related to in-service noise exposure, such an opinion is of no probative value, as it was based on the absence of in-service evidence of a hearing loss and tinnitus disabilities. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Additionally, as noted above, the Veteran reported that his tinnitus started within six months of returning from Iraq. Tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles, 16 Vet. App. at 374-75. The Veteran is competent to report that he has tinnitus and has indicated that he first noticed tinnitus during service and that it has continued since that time. The Board finds his statements regarding the onset of tinnitus and continuity of symptoms are credible. Thus, accepting his lay statements, and resolving reasonable doubt in his favor, the Board finds that service connection is warranted for tinnitus. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Higher Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two disability ratings 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence ‘used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. VA regulations provide that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Id. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342 and 7345 to 7348 inclusive will not be combined with each other. A single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. 2. Anal/Perianal Fistula The Veteran’s anal/perianal fistula is currently rated as 30 percent disabling under Diagnostic Code 7332, regarding impairment of sphincter control of the rectum and anus. 38 C.F.R. § 4.114, Diagnostic Code 7332. A 30 percent disability rating is warranted for occasional involuntary bowel movements, necessitating the wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A maximum 100 percent disability rating is warranted for complete loss of sphincter control. For the following reasons, the Board finds that an initial 60 percent rating, but no higher, is warranted for anal/perianal fistula. The Veteran was afforded a VA examination in September 2015. He reported being diagnosed with IBS three to four years ago, which was predominantly diarrhea. The Veteran indicated that his condition continued to get worse and he was sent for a colonoscopy which was normal. The examiner noted confirmation of normal colonoscopy results. The examiner indicated that his condition did not impact his ability to work. In November 2016, the Veteran underwent a VA examination. He reported having fecal incontinence and wearing absorbent material in public. The Veteran noted that his bowel movement alternated between diarrhea and soft stools, pain level of 7 out of 10, with persistent bleeding. The examiner indicated that the Veteran’s condition did not impact his ability to work. In June 2018, the Veteran underwent another VA examination. He reported that his condition had worsened with more frequent episodes of daily incontinence. The Veteran’s leakage necessitated wearing of pad. The examiner indicated that the Veteran’s condition impacted his ability to work, as he was unable to lift a heavy object without having fecal leakage. In an August 2018 statement, the Veteran reported that he was currently experiencing multiple involuntary bowel movements during the day and night. He indicated that he usually wore a pad during the day and a diaper at night. The Veteran stated that he was currently being treated by his gastroenterologist doctor for incontinence. He noted that he worked from home because of his incontinence and rarely left his house. The Veteran further noted that he always carried extra pads and a change of clothing when he left home. In an August 2018 clinical note, private doctor N.T. stated that the Veteran reported daily multiple involuntary bowel movements and leakage. The Veteran had diarrhea within one hour after eating. He experienced multiple bowel movements but did not feel as though he evacuates completely. Doctor N.T. indicated that the Veteran tried MiraLax and Linzess, but it caused diarrhea. He tried fiber, anti-spasmodic (Levsin and Librax), and probiotics without a benefit. The Veteran also tried a gluten free diet. Doctor N.T. noted that the Veteran often had post prandial bowel movements that are liquid or a Type 4 on the Bristol stool scale. His fecal incontinence was severe at present. In sum, the above evidence reflects that the Veteran experiences multiple involuntary bowel movements daily. The Veteran experiences leakage requiring the use of pads during the day, and diapers at night. Moreover, the Veteran has reported that he rarely left home, and when doing so, he always carried extra pads and a change of clothing. Such symptoms are consistent with a 60 percent rating. The Veteran has not, however, exhibited complete loss of sphincter control to warrant a 100 percent rating under Diagnostic Code 7332. Specifically, the June 2018 VA examination report shows no complete loss of sphincter control. The other evidence of record does not reflect complete loss of sphincter control, nor does the Veteran appear to suggest that such is present. Accordingly, the criteria for a 60 percent rating, but no higher, for the Veteran’s anal/perianal fistula have been met. The preponderance of the evidence is against the assignment of ratings higher than what is currently assigned, thus the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. IBS The Veteran’s irritable bowel syndrome is rated as 30 percent disabling under Diagnostic Code 7319, for digestive systems. Under Diagnostic Code 7319, severe symptoms that include diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress is rated at 30 percent disabling, the maximum rating. 38 C.F.R. § 4.114, Diagnostic Code 7319. An August 2011 VA Clinical record shows that the Veteran’s IBS symptoms included abdominal pain, constipation, and diarrhea. A November 2014 private clinical record shows that the Veteran exhibited IBS symptoms of abdominal pain, abdominal cramping, abdominal bloating, constipation, rectal urgency and diarrhea. A March 2015 VA examination report shows that the Veteran experienced diarrhea 5 to 6 times daily, with alternating diarrhea and constipation. An August 2018 private clinical record shows that the Veteran experiences abdominal pain with some relief after bowel movement. The Veteran is currently in receipt of the maximum schedular rating for an abdominal disability under Diagnostic Code 7319 for the appeal period. The Board has considered other Diagnostic Codes, but no other Diagnostic Code would result in a more favorable rating. Therefore, a schedular disability rating in excess of 30 percent for the Veteran’s IBS cannot be granted for this period on appeal, and the claim is denied. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). REASONS FOR REMAND GERD The Veteran seeks service connection for GERD. He contends that such disability is due to his active service. For the following reasons, the Board finds that the preponderance of the evidence is against the claim. The Veteran’s STRs are negative of complaints, treatment, or findings of GERD. At a September 2006 post-deployment health assessment, he denied frequent indigestion. A separation examination is not of record. Post-service VA clinical records show that in April 2011, the Veteran complained of experiencing GERD mainly at night. The Veteran was afforded a VA examination in November 2016. He reported having issues with reflux about 10 years ago. The Veteran reported symptoms of sleeping with sore throat and burning in the chest. He indicated that he was put on Omeprazole and it helped with his symptoms. The Veteran noted having symptoms every now and then, depending on what he ate. The examiner noted a diagnosis of GERD. Initially, the Board notes that the diagnosis of GERD reflects that those gastrointestinal symptoms have been attributed to a known clinical diagnosis and therefore cannot be considered to be due to undiagnosed illness. C.F.R. § 3.317(a)(1)(i), (ii). Moreover, “Given the clarity of the Secretary’s exclusion based on the regulatory history concerning this section, GERD cannot qualify as a [medically unexplained chronic multisymptom illness].” Atencio v. O’Rourke, 30 Vet. App. 74, 85 (2018). The lack of a basis for the grant of service connection based on 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 was the reason for the severance of service connection that was not appealed by the Veteran. This does not, however, preclude the Veteran from establishing service connection on a direct basis, to include as due to environmental exposures such as burn pits. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In a June 2017 VA medical opinion, a VA examiner who had conducted a November 2016 VA examination, examiner opined that there was no data to support the claim that exposure to burn pits or environmental hazards in Southwest Asia is the cause for GERD. Therefore, according to the VA examiner, it was less likely that this is the cause for the Veteran’s GERD. The examiner therefore concluded that a nexus had not been established and it was less likely than not that the claimed condition was directly service connected. This opinion is inadequate. The examiner rendered an opinion based only on a general lack of data rather than addressing the specific facts of this case. A medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate. Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). This is particularly true in this case, where disability due to burn pits has been acknowledged by VA. See Roberts v. Shulkin, No. 16-4090 ( Vet. App. Mar. 13, 2018) (mem dec) (citing a VA Fact Sheet entitled “Burn Pits in Iraq, Afghanistan, and the Horn of Africa”). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Consequently, a remand for a new VA medical opinion, which considers the facts of this case and any relevant VA materials on burn pits, is warranted. This matter is REMANDED for the following action: Request an opinion from an appropriate specialist opinion as to the etiology of the Veteran’s GERD. The physician should opine as to whether the Veteran’s GERD is at least as likely as not related to his military service, to include his exposure to burn pits while in the Southwest Theater of Operations. The physician should review the Veteran’s claims file. The opinion should address the specific facts of this case including any relevant VA materials on burn pits and provide a rationale for any conclusions reached. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, Associate 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.