Citation Nr: 20021680 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-16 009 DATE: March 26, 2020 ORDER Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for chronic upper respiratory infection is denied. Service connection for irritable bowel syndrome (IBS) is denied. Service connection for hemorrhoids is denied. REMANDED Entitlement to service connection for right hip condition is remanded. Entitlement to service connection for dacryolith lacrimal passages, chronic allergic conjunctivitis, blepharitis, status post LASIK surgery (claimed as bilateral eye condition) is remanded. Entitlement to an initial disability rating in excess of 20 percent for cervical strain and trapezius muscle spasm is remanded. Entitlement to an initial disability rating in excess of 30 percent for panic disorder is remanded. Entitlement to an initial compensable rating for allergic rhinitis is remanded. Entitlement to an initial disability rating in excess of 20 percent for temporomandibular dysfunction (TMJ) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The probative evidence of record does not show that the Veteran has a current diagnosis of GERD. 2. The probative evidence of record does not show that the Veteran has a current diagnosis of chronic upper respiratory infection. 3. The probative evidence of record does not show that the Veteran has a current diagnosis of IBS. 4. The probative evidence of record does not show that the Veteran has a current diagnosis of hemorrhoids. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for chronic upper respiratory infection have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for IBS have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for hemorrhoids have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 2008 to January 2017. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO). In May 2019 correspondence, the Veteran raised the issue of entitlement to TDIU as due to her service-connected panic disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection 1. Entitlement to service connection for GERD. 2. Entitlement to service connection for chronic upper respiratory infection. 3. Entitlement to service connection for irritable bowel syndrome. 4. Entitlement to service connection for hemorrhoids. 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; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time she files her claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. The Veteran asserts that she has GERD, IBS, hemorrhoids, and chronic upper respiratory infections that are related to her active duty service. The question for the Board is whether the Veteran has current disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there first needs to be competent evidence of a current disability. In the present case, the Board finds that the Veteran is not shown to have a current diagnosis of GERD, IBS, hemorrhoids, or chronic upper respiratory infections, or to have had such disabilities at any time during the pendency or proximate to the filing of her claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303 (a), (d). The available treatment records contain no diagnoses or descriptions of functional impairment related to GERD, IBS, hemorrhoids, or chronic upper respiratory infections during the pendency of the claim. The Veteran has not presented or identified any competent and credible evidence showing that she has the claimed disabilities. In regard to hemorrhoids, the Veteran underwent an examination in September 2014. Following an examination, and review of the claims file, the examiner found that the Veteran had a hemorrhoidectomy in February 2011 for a thrombosed hemorrhoid. The examiner found that there have been no recurrent symptoms and there was no evidence of any hemorrhoidal or anal conditions. The Veteran was afforded another VA rectum and anus examination in December 2016. Following examination and review of the claims file, the examiner found that the Veteran did not have any current diagnosis as the condition had resolved. In regard to the claimed IBS, the Veteran underwent an examination in September 2014. Following examination and review of the claims file, the examiner found that the Veteran had chronic constipation and abdominal pain and gas for years prior to joining the military. However, the examiner noted that the Veteran’s symptoms improved after stopping birth control and she denied any unusual symptoms currently. The Veteran was afforded another VA intestinal conditions examination in December 2016. Following examination and review of the claims file, the examiner found the Veteran did not have any current diagnosis as the condition had resolved. As for the claimed GERD and upper respiratory infections, the Veteran was afforded VA examinations for the claimed conditions in December 2016. Following examination and review of the claims file, the examiner found the Veteran did not have any current diagnosis of GERD or chronic upper respiratory infection. While the Veteran may believe that she suffers from current disabilities of GERD, IBS, hemorrhoids, and chronic upper respiratory infections that are related to service, she is not competent to diagnose such disabilities or otherwise provide a nexus opinion in this case. As a lay person, she is not shown to have the requisite medical knowledge, training, or experience to be able to render a competent diagnosis of GERD, IBS, hemorrhoids, or chronic upper respiratory infections, or to proffer a competent opinion regarding the matter of whether her currently claimed conditions can be attributed to injuries or training years earlier. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence is against the claims, and service connection for GERD, IBS, hemorrhoids, and chronic upper respiratory infections must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claims and to afford her every possible consideration. 1. Entitlement to service connection for right hip condition is remanded. The Veteran seeks to establish service connection for a right hip condition which she contends is related to service. Additional development is required to attempt to obtain potentially existing and outstanding treatment records. In this regard, May 2019 correspondence indicates the Veteran has received treatment from Pressler Therapy for her right hip. However, there are no records from this facility associated with the claims file. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). 2. Entitlement to service connection for a bilateral eye condition is remanded. The Veteran contends that she experiences eye swelling and sinus issues in her bilateral eyes related to her military service. See May 2019 Correspondence. First, additional development is required to attempt to obtain potentially existing and outstanding treatment records. In this regard, May 2019 correspondence indicates the Veteran has received treatment from an allergy clinic for her allergic conjunctivitis. However, there are no records from any allergy facility associated with the claims file. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2). Similarly, several VA treatment notes from the Dallas VA Medical Center also indicate that non-VA care consult allergy notes were scanned and attached but are not available for viewing. See e.g., December 2018 treatment record. On remand, all scanned images of non-VA care consults must be obtained and associated with the evidence of record. Also, the Board notes that the Veteran’s service treatment records include complaints of blepharitis. See July 2012 service treatment record. Additional treatment records from service show the Veteran was diagnosed with chronic allergic conjunctivitis. See September 2013 service treatment record. In the report from the Veteran’s January 2017 VA examination, the VA examiner noted that the Veteran has intermittent swelling of nasolacrimal passage. However, it appears that the VA examiner did not provide a nexus opinion regarding any eye disability and service. Without such an opinion, the Board cannot make a fully informed decision on the issue of entitlement to service connection for a bilateral eye condition. Thus, the Board finds a remand is proper so a VA examiner can determine whether the Veteran had a bilateral eye condition during the appeal period and whether this disability is related to service. 3. Entitlement to an initial compensable rating for allergic rhinitis is remanded. The Veteran contends her allergic rhinitis warrants a compensable rating. As noted above, May 2019 correspondence indicates the Veteran has received treatment from an allergy clinic. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2). Similarly, several VA treatment notes from the Dallas VA Medical Center also indicate that non-VA care consult allergy notes were scanned and attached but are not available for viewing. See e.g., December 2018 treatment record. On remand, all scanned images of non-VA care consults must be obtained and associated with the evidence of record. The Veteran was afforded a December 2016 VA examination in which the examiner indicated the Veteran had a diagnosis of allergic rhinitis. He reported, however, that the Veteran had no major obstructions or polyps of the nasal passages. However, in May 2019 correspondence, she indicated that her condition had continued to worsen, and nothing stops or prevents it. As such, a new examination is appropriate. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to an initial disability rating in excess of 20 percent for cervical strain and trapezius muscle spasm is remanded. The Veteran contends her cervical strain and trapezius muscle spasm warrants a rating in excess of 20 percent. The Veteran was afforded a VA examination in December 2016. The examiner noted there were no reports of flare ups or functional loss. Her range of motion was noted to be normal. However, in May 2019 correspondence, the Veteran stated that the severity of pain in her neck ranged from a dull pain to her neck locking up. She reported that some days she cannot turn her head left or right. As the evidence of record indicates that her symptoms may have increased in severity since she was last evaluated, a new examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 5. Entitlement to an initial disability rating in excess of 30 percent for panic disorder is remanded. The Veteran contends her panic disorder warrants a rating in excess of 30 percent. First, additional development is required to attempt to obtain potentially existing and outstanding treatment records. In this regard, a December 2017 VA treatment record indicates that the Veteran will follow-up with counseling services in the private sector. However, it is unclear whether the Veteran currently receives private treatment. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Also, the Veteran was afforded a VA examination in December 2016. However, in May 2019 correspondence, she indicated that her condition had continued to worsen. As such, a new examination is appropriate. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 6. Entitlement to an initial disability rating in excess of 20 percent for TMJ is remanded. The Veteran contends her TMJ warrants a rating in excess of 20 percent. Additional development is required to attempt to obtain potentially existing and outstanding treatment records. In this regard, a December 2018 VA treatment record indicated that the Veteran wanted to see a private dentist. However, it is unclear whether the Veteran currently receives private dental treatment. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). 7. Entitlement to a TDIU. The development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. The matters are REMANDED for the following action: 1. Ask the Veteran to provide a release for relevant records of treatment from Pressler Therapy, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Provide the Veteran with appropriate notice of the information and evidence necessary to substantiate a TDIU claim and request that she complete and return a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 4. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA eye examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) an eye disability, to include bilateral blepharitis, allergic conjunctivitis, and/or dacryolith lacrimal passages, had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner should discuss the medical significance, if any, of the fact that the Veteran was treated for chronic allergic conjunctivitis and blepharitis while in service. See July 2012 service treatment record; see September 2013 service treatment record. A complete medical rationale for all opinions expressed must be provided. 5. Also, schedule the Veteran for an examination for allergic rhinitis. The examiner should provide a full description of the Veteran’s condition and associated functional impairments as they relate to the relevant rating criteria. A complete medical rationale for any opinions expressed must be provided. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 6. Further, arrange to have the Veteran scheduled for an examination of her neck. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if possible. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of her limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. A complete rationale for any medical opinions must be provided. 7. Arrange to have the Veteran scheduled for an examination by an appropriate clinician for purposes of assessing the current severity of her service-connected panic disorder. The examiner should provide a full description of the Veteran’s disability and report all signs and symptoms necessary for evaluating the disability under the relevant rating criteria. To the extent possible, the examiner should discuss the effect of the Veteran’s anxiety disorder on occupational functioning and activities of daily living. A.P. Armstrong Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.