Citation Nr: 21004848 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-10 402 DATE: January 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Service connection for a digestive disability, other than reflux esophagitis, claimed as constipation and irritable colon syndrome, is remanded. Service connection for hemorrhoids, to include as secondary to constipation, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, tinnitus is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to January 1988. The Veteran testified before the undersigned at an October 2019 Central Office hearing. The hearing transcript is of record. In a December 2019 decision, the Board denied entitlement to service connection for tinnitus, a digestive disability claimed as constipation other than gastrointestinal reflux disease (GERD), and hemorrhoids to include as secondary to constipation. The Veteran appealed that decision and, in September 2020, the U.S. Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand the December 2019 denial of those issues. As noted in the JMR, the Board considered whether service connection was warranted for a digestive disorder other than gastroesophageal reflux disease, however, the Veteran is service connected for reflux esophagitis, and not GERD, the issue on appeal has thus been recharacterized accordingly. Entitlement to Service Connection for Tinnitus The Veteran contends that she has tinnitus which is related to her active duty service. At her October 2019 hearing, the Veteran explained that she was exposed to machine gun and explosive fire during her training, and that her barracks were across the street from a firing range. She further stated that during service she had complained about noises in her ears and her ears were cleaned out, but over time she still heard sounds. The Veteran stated that the ringing in her ears had increased in duration and had not stopped. Service treatment records include complaints of hearing an echo sound in September 1985. The Board finds this consistent with the Veteran’s testimony and concludes that tinnitus had its onset in service. Resolving the benefit of the doubt in the Veteran’s favor, the evidence demonstrates ear complaints and the Veteran’s report that she experienced tinnitus since service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current tinnitus is related to her active duty service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for a digestive disability, other than reflux esophagitis, claimed as constipation and irritable colon syndrome, is remanded. In its September 2020 Joint Motion for Remand, the parties to the appeal argued the Board’s reliance upon a January 2017 VA examiner’s opinion that constipation was a symptom and not a disability was erroneous. In so finding the JMR noted that the record included an October 2018 diagnosis of idiopathic constipation, and that private treatment records also include a diagnosis of constipation apart from GERD. Further, the JMR found that the Board failed to explain its finding that GERD was the same as reflux esophagitis. The JMR noted that the Veteran was awarded service connection for reflux esophagitis, not GERD, in 1988. The Board may not make medical determinations. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). Therefore, the Veteran must be afforded a new VA examination to make the necessary determinations discussed above and to reconcile conflicting medical findings. Further, additional treatment records may be available. During her October 2019 hearing, the Veteran testified that she received treatment at Walter Reed Hospital for constipation; records of such treatment should be requested. Additionally, while the claims file includes some treatment records from Associates in Gastroenterology, these do not appear to be complete as November 2013 to January 2018 treatment records are not of record. Service connection for hemorrhoids, to include as secondary to constipation, is remanded. Finally, because a decision on the issue of service connection for a digestive disability, claimed as constipation, could significantly impact a decision on the issue of service connection for hemorrohoids the issues are inextricably intertwined. A remand of the claims for this issue is required. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at Walter Reed Hospital from January 8, 1985 to January 7, 1988. Document all requests for information as well as all responses in the claims file. Ask the Veteran to complete a VA Form 21-4142 for Associates in Gastroenterology in order to obtain treatment records for the period between November 1, 2013 and January 31st, 2018, and in order to obtain any additional treatment records cited by the Veteran. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for her digestive disorder, claimed as constipation. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a) Is a digestive disability, other than reflux esophagitis at least as likely as not related to service? In so stating, the examiner is asked to discuss diagnoses for idiopathic constipation as well as the finding of the January 2017 VA examiner that the Veteran did not have a disability, and to reconcile those findings. b) If so, are hemorrhoids at least as likely as not proximately due to that disorder? To this end, the Board also notes that the Veteran as a lay person is competent to attest to the presence of recurrent hemorrhoids, and such is shown in the record. (Continued on the next page)   c) The examiner is asked to opine as to whether there is a difference between GERD and reflux esophagitis, whether one is encompassed by another, and to provide a diagnosis of the Veteran’s condition and describe in full detail the symptoms of such. 3. Then readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and her representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.