Citation Nr: 20002956 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 18-04 463 DATE: January 14, 2020 ORDER The claim of entitlement to service connection for irritable bowel syndrome (IBS), claimed as stomach pain and bowel problems, is reopened; to this limited extent, the appeal is granted. The claim of entitlement to service connection for tinnitus is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for IBS, claimed as stomach pain and bowel problems, is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Service connection for IBS and tinnitus was denied in an August 2012 rating decision, in part, because there was no nexus to service for either disability. New and material evidence was not received within a year of notice of the decision. The Veteran did not initiate an appeal of this decision and it became final. 2. Evidence received since the August 2012 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating his claim of service connection for IBS and tinnitus. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection for IBS have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1990 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Request to Reopen The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for irritable bowel syndrome (IBS), claimed as stomach pain and bowel problems 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus Service connection for IBS and tinnitus was denied in an August 2012 rating decision, in part, because there was no nexus to service for either disability. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the prior final denial, the Veteran submitted October 2019 private nexus opinions for both IBS and tinnitus. As the opinions were not of record or considered in the last final denial, they are new. As the opinions support a nexus for both disabilities, they are material to the claims. Accordingly, the Board finds that new and material evidence has been received. 38 C.F.R. § 3.156(a). The claims of service connection for IBS and tinnitus are reopened. They will be discussed further in the REASONS FOR REMAND section below. REASONS FOR REMAND 1. Entitlement to service connection for IBS, claimed as stomach pain and bowel problems is remanded. Remand is required for a new medical examination and opinion. The Veteran has current diagnoses of reflux esophagitis and gastroesophageal reflux disease (GERD). VA treatment records (5/1/2019, 6/10/2014). He also has a historical diagnosis of IBS per a July 2012 VA examination report. The Board notes that the Veteran served in Saudi Arabia during the relevant presumptive period and is considered a Persian Gulf veteran under 38 C.F.R. § 3.317. The Board also notes that IBS is considered a medically unexplained chronic multisymptom illness (MUCMI), see § 3.317(a)(2)(i)(B)(3), while GERD is legally excluded from such consideration. See Atencio v. O’Rourke, 30 Vet. App. 74, 82 (2018). The Veteran underwent a VA examination in July 2012. The examiner opined that the diagnosed IBS was less likely than not related to active service. The examiner reasoned that the Veteran developed symptoms of IBS years after leaving active duty, and the available objective database fails to demonstrate a linkage between his current symptoms and his active service, including any exposures he may have experienced in Southwest Asia. The Board finds the July 2012 medical opinion inadequate to decide the claim. While the passage of time from service may be a factor considered, it is not detrimental to a claim. The remainder of the nexus opinion is not understandable. The Veteran submitted an October 2019 private nexus opinion. The examiner identified a diagnosis of GERD and opined it was secondary to the Veteran’s service-connected PTSD. The examiner reasoned that the Veteran’s PTSD causes sleep disturbances and emotional stress, and medical literature shows positive connections between psychiatric disorders that cause such symptoms and increased incidence or aggravation of GERD. The Board finds the October 2019 private nexus opinion insufficient based on faulty logic. The clinician cited to medical literature to show that psychiatric disorders, such as PTSD, can result in symptoms such as emotional stress and sleep disturbances and such situations can cause or aggravate GERD. The clinician essentially indicated that because the Veteran has PTSD with symptoms of emotional stress and sleep disturbance, it is at least as likely as not PTSD caused or aggravated his GERD. There was, however, limited analysis of the particular facts of the Veteran’s clinical history in making this causal connection. On remand, a VA medical opinion should be obtained. The examination should clarify the Veteran’s diagnosis, to include whether he has a current diagnosis of IBS. The examiner should also provide nexus opinions for direct and secondary theories of entitlement, with consideration given to the October 2019 private opinion. 2. Entitlement to service connection for tinnitus is remanded. Remand is required for a supplemental medical opinion. The Veteran has a current diagnosis of tinnitus per a July 2012 VA examination report. In-service exposure to hazardous noise is conceded by virtue of his military occupational specialty (MOS) of light wheel vehicle mechanic. VA medical records show the Veteran denied tinnitus during a December 2009 Gulf War registry examination. The condition was first reported during VA treatment in March 2010. The Veteran underwent a VA examination in July 2012. He reported longstanding tinnitus. The examiner opined it was less likely than not related to active service because the Veteran’s service records did not document the condition and hearing was normal during service with no significant threshold shift. In his January 2018 substantive appeal, the Veteran reported that he had tinnitus since his active service. The Veteran submitted an October 2019 private nexus opinion. The examiner opined the Veteran’s right ear tinnitus was at least as likely as not due to hazardous noise exposure during active service. The examiner noted that the Veteran was exposed to hazardous noise during service and that he now has ringing in his right ear – note, the Veteran did not report tinnitus onset in service. The examiner then supported this conclusion with medical literature showing that tinnitus can be caused by noise exposure and that tinnitus can be present even when audiograms are normal. The examiner then concluded that the evidence and literature indicated that audiograms could be normal weeks, months, or years after hazardous noise exposure and then tinnitus could still develop at a later date due to cochlear deterioration and damage that previously occurred but was not detected by the audiogram. The Board finds the October 2019 opinion insufficient to decide the claim. It is noted that none of the medical literature abstracts included with the opinion supported delayed-onset tinnitus due to prior noise exposure. Moreover, the clinician’s logic was faulty. The clinician merely relied upon medical literature that shows cochlear damage can occur from noise exposure and not manifest itself in audiograms to essentially reach the conclusion that the Veteran’s in-service noise exposure caused cochlear damage (despite no cochlear damage or auditory complaints being noted on his service audiograms). It is unclear to the Board how such a conclusion can be reached without speculation. Moreover, the clinician extended that implicit finding to conclude that the current tinnitus, which the Veteran did not complain of during active service, was related to any purported cochlear damage that may have occurred in service. For these reasons, a new medical opinion should be obtained concerning the etiology of tinnitus on remand. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his gastrointestinal problems. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with conducting the examination. The examiner is asked to provide responses to the following: A) Please clarify the Veteran’s current diagnoses. Medical records show current diagnoses of GERD and reflux esophagitis. There is also a historical diagnosis of IBS. The Board needs to know whether the Veteran has a current diagnosis of IBS (as of Sept. 30, 2013), and what other gastrointestinal diagnoses are present. If any diagnoses are duplicative or ruled out, it should be clearly explained why that is so. B) For each diagnosed condition, is it at least as likely as not (a 50 percent or greater probability) it was incurred in, or is otherwise related to active service, to include exposures in Southwest Asia? Exposures to environmental hazards in Southwest Asia have been conceded. C) For each diagnosed condition, is it at least as likely as not it was proximately caused or aggravated by service-connected PTSD? This requires two responses: one for proximate causation and a second for aggravation. The term “aggravation” means an increase in severity of the condition that is not due to its natural progress. The examiner is also asked to consider the October 2019 private nexus opinion, to include the medical studies offered in support of a connection between GERD and PTSD. A complete rationale must be provided for all opinions expressed. 2. Obtain a supplemental medical opinion concerning the etiology of the Veteran’s tinnitus. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with authoring the opinion. The examiner is asked to answer whether the Veteran’s tinnitus is at least as likely as not (a 50 percent or greater probability) incurred in, or otherwise related to, the Veteran’s active service. The examiner is advised that in-service noise exposure is conceded by virtue of the Veteran’s MOS of light wheel vehicle mechanic. The examiner should consider the October 2019 private nexus opinion, to include the medical studies offered in support of a nexus therein. A complete rationale must be provided for all opinions expressed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mike A. Sobiecki, 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.