Citation Nr: 21006834 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 13-22 567 DATE: February 5, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for chest pain is denied. Entitlement to service connection for dizziness is denied. Entitlement to service connection for an eating disorder, to include weight loss is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for residuals of a tubal ligation is remanded. FINDINGS OF FACT 1. The preponderance of the evidence supports that the Veteran’s tinnitus is etiologically linked to her active duty service. 2. The Veteran’s chest pain is a symptom of her service-connected delusional disorder and is not a separate disability for which service connection can be granted. 3. The Veteran’s dizziness is a symptom of her service-connected delusional disorder and is not a separate disability for which service connection can be granted. 4. The Veteran’s weight loss is a symptom of her service-connected delusional disorder and is not a separate disability for which service connection can be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for service connection for chest pain have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for service connection for dizziness have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 4. The criteria for service connection for weight loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1999 to October 1999 and from June 2001 to April 2009. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2017. A transcript of the proceeding has been associated with the claims file. This case was previously before the Board in October 2017. The Board dismissed appeal of the issues of entitlement to service connection for a gastrointestinal disorder, to include constipation, gastroenteritis, nausea, abdominal pain, C-section surgery, and stomach condition, service connection for dizziness, service connection for hearing loss, service connection for chest pain, service connection for tinnitus, service connection for residuals of tubal ligation, including threatened miscarriage, pregnancy, and surgical complications, and service connection for an eating disorder, to include weight loss. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated that part of the Board’s October 2017 decision. The parties agreed that the Board erred when it did not provide an adequate statement of reasons or bases for its determination that Veteran made an effective withdrawal of the aforementioned claims. The matter has now been returned to the Board for further appellate action. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus At the outset, the Board finds that the evidence demonstrates the Veteran has a current tinnitus disability. The Veteran has reported hearing “static” in her ears and the Board finds her reports both competent and credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran also claims that she first noticed the sound in her ears in 2008, during service. Thus, the question is one of nexus. Relevant to the issue of nexus, the Board notes that thus far, no VA examination and opinion has been obtained in connection with the Veteran’s claim for tinnitus. Regarding the Veteran’s lay statements, the Veteran is competent to report when she first experienced 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). The Board acknowledges the record indicates the Veteran denied tinnitus at her April 2009 VA examination. However, notations from the same examination indicate that the Veteran experienced “right ear static.” In March 2017, the Veteran clarified that the April 2009 examiner asked if she heard “ringing” in her ear, which she denied. However, when she explained the static noise to her private practitioner in October 2009, she was diagnosed with tinnitus. The Board finds the Veteran to be credible. She has consistently reported throughout the record that she began experiencing tinnitus symptoms during service. Upon review of the evidence, rather than remanding the matter for a medical opinion, the Board will resolve reasonable doubt in favor of the Veteran and award service connection for tinnitus. Here, again, the Veteran is competent to testify as to the existence of ringing in her ears. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “[l]ay testimony is competent... to establish the presence of observable symptomatology”); Charles, 16 Vet. App. 374 (stating that “ringing in the ears is capable of lay observation” and, as such, a veteran is competent to testify as to that symptom). The Board finds no reason to disbelieve the Veteran’s reported onset of tinnitus in service, as well as her continued experiencing of such symptoms since that time. Accordingly, the Board concludes that the evidence tends to show that tinnitus first manifested itself during service. There is also competent and probative lay evidence of continued symptomatology since service. Thus, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, service connection for tinnitus is warranted in accordance with 38 C.F.R. § 3.303(b). 38 U.S.C.A. § 5107. 2. Entitlement to service connection for chest pain, dizziness, and weight loss The Veteran contends that she currently has chest pain, dizziness, and an eating disorder characterized by weight loss, which she asserts are generally related to her active service. The Board finds that the preponderance of evidence shows that the Veteran’s chest pain, dizziness, and weight loss are symptoms of an underlying condition and are not separate medical conditions for which service connection can be granted. The Veteran’s medical records do not contain independent diagnoses for chest pain, dizziness, or an eating disorder characterized by weight loss. Here, the evidence shows that the Veteran’s chest pain, dizziness and weight loss have most consistently been treated as symptoms of her service-connected delusional disorder (to include stress, anxiety, depression, memory loss, panic disorder, and insomnia). In March 2008 the Veteran’s service treatment records (STRs) reveal she was treated for intermittent chest pain. She reported a pounding heartbeat and sharp pain in her chest. She was diagnosed with atypical chest pain. The Veteran continued to experience symptoms and sought treatment at a hospital in July 2008. She was diagnosed with nonspecific chest pain. Upon discharge, she was given a handout for Chest pain (nonspecific) and Anxiety and Panic Attacks. The handout notes that anxiety attacks could cause dizziness, chest pains, and palpitations. Before her August 2008 Medical Board examination, the Veteran endorsed chest pain on her report of medical history. The physician who completed her examination noted that the Veteran had undergone myriad cardiac tests which all came back normal. The Veteran’s April 2009 separation examination notes chest pain with a 2008 date of onset. The examiner noted the Veteran had undergone a nuclear stress test in May 2008 which was normal. The examiner found there was insufficient evidence to warrant an acute diagnosis of coronary artery disease given the normal stress testing. Further, the examiner found the Veteran’s chest pain had no effects on her usual daily activities and no significant effects on her usual occupation. Similarly, the Veteran was treated for dizziness and lightheadedness during service. On her August 2008 report of medical history, the Veteran endorsed dizziness and explained that it happened when she lost weight. The Veteran’s April 2009 separation examination notes dizziness with an onset date of 2008. The examiner noted that the Veteran’s dizziness had been attributed to her anxiety disorder. The examiner opined there was insufficient evidence to warrant an acute diagnosis. Importantly, the examiner found the Veteran’s dizziness had no significant effects on her usual occupation or usual daily activities. As to an eating disorder, the Veteran has not been diagnosed with an eating disorder, nor does she report symptoms consistent with an eating disorder. To the contrary, in a March 2017 statement, the Veteran reported that she just “felt weight drop off of her.” She explained that she was treated for loss of appetite but did not intentionally change her eating habits. In March 2008, the Veteran reports a rapid weight loss of approximately 13 pounds. The Veteran was seen at the Behavioral Medicine Department where her weight loss was associated with high levels of stress. STRs from April 2008 associate the Veteran’s recent weight loss with anxiety and depression. The physician who completed the Veteran’s August 2008 Medical Board examination noted that the Veteran lost 13 pounds due to a bad appetite and anxiety attack. The Veteran has been afforded multiple VA examinations to assess the severity of her delusional disorder. The Veteran has consistently reported anxiety and panic attacks among the symptoms of her delusional disorder. Most recently, at a March 2019 VA examination, the Veteran described near continuous panic affecting the ability to function independently, appropriately and effectively. Based on the above and remaining evidence, the Board finds that the Veteran’s chest pain, dizziness, and weight loss are symptoms of her delusional disorder (to include stress, anxiety, depression, memory loss, panic disorder, and insomnia), for which the Veteran is already service-connected and receiving compensation. The Veteran’s psychiatric disability is evaluated under Diagnostic Code 9411 which specifically contemplates panic attacks and anxiety as part of the evaluation. 38 C.F.R. § 4.125, Diagnostic Code 9411. Further, with regard to her weight loss, examiners have found no eating disability associated with the weight loss, thus, separate compensation for an eating disorder is not warranted as the weight loss does not rise to that level, but is contemplated as part of her anxiety related to her psychiatric condition. No separate compensation by analogy is warranted. Therefore, the Veteran’s symptoms of chest pain, dizziness, and weight loss are contemplated pursuant to the appropriate rating schedule for that disability and separate compensation would constitute double compensation for the same symptoms and violate the rule against pyramiding. See 38 C.F.R. § 4.14. As the evidence does not support current disabilities, the Board did not consider the remaining elements of service connection. Given the absence of a current disability, the Board finds that service connection for chest pain, dizziness, and weight loss is not warranted. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran’s service treatment records from August 2008 document hearing abnormalities and mild losses. The Veteran’s most recent audiological examination was in April 2009. The audiological findings from nearly 12 years ago do not reveal hearing loss for VA purposes under 38 C.F.R. § 3.385. However, the Veteran continues to report hearing loss. Therefore, the Board finds a contemporaneous VA examination is required to determine if the Veteran’s hearing loss has reached the level of hearing loss for VA disability purposes. 2. Entitlement to service connection for a gastrointestinal disorder is remanded. The Veteran has competently and credibly reported persistent symptoms of constipation and abdominal pain during the pendency of this claim. The record indicates that these symptoms may be related to her active duty service in that they had their onset in 2008 during her service. Because the record indicates that the claimed disability or symptoms may be associated with an established in-service event, injury, or disease, a medical examiner must comment on any etiological relationship between the in-service incident and her current symptoms. McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). 3. Entitlement to service connection for residuals of a tubal ligation is remanded. A medical opinion has not been obtained in connection with the Veteran’s claim for service connection for residuals of a tubal ligation. The Veteran reports surgical complications resultant from her tubal ligation. The Veteran’s STRs reveal she underwent a tubal ligation in 2006 during her active duty service. In August 2009, the Veteran’s private physician noted that the Veteran’s menstrual cycle had been abnormal since her tubal ligation. Therefore, the evidence indicates that the claimed disability or symptoms may be associated with an established in-service event, injury, or disease, a medical examiner must comment on any etiological relationship between the in-service incident and her current residual symptoms. Id. The Veteran should also be given the opportunity to submit additional evidence from private medical providers. See 38 C.F.R. § 3.159 (c). The matters are REMANDED for the following action: 1. Contact the Veteran and request that she identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her for her bilateral hearing loss, gastrointestinal issues, and residuals of her tubal ligation. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. After the above development is accomplished, the AOJ should provide the Veteran a new audiological examination to assess the current severity of her bilateral hearing loss. IF AND ONLY IF the Veteran’s hearing loss meets the level of a disability for VA purposes, the examiner should review the claims file and provide an opinion as to whether it is least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing disability is related to her active service, to include the mild losses noted in service. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology and noise exposure in service. The examiner should note that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. 3. The AOJ should also provide the Veteran with VA examinations in connection with her service connection claims for a gastrointestinal disorder and residuals of a tubal ligation. The entire claims file, including a copy of this remand, should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to matters of which she has first-hand knowledge, including events that occurred during service and observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified disorder present AT ANY TIME during the pendency of the claim manifested during service or is otherwise related to service. 4. The AOJ should re-adjudicate the remaining claims on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.