Citation Nr: 21015811 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-08 104 DATE: March 18, 2021 ORDER Entitlement to service connection for a respiratory disorder, other than chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure and to include as due to an undiagnosed illness related to service in Southwest Asia, is denied. Entitlement to service connection for a skin disability, claimed as rashes, to include as due to an undiagnosed illness related to service in Southwest Asia, is denied. Entitlement to a rating in excess of 10 percent for chronic maxillary sinusitis is denied. Entitlement to a rating of 10 percent, but no higher, for gastroenteritis with irritable bowel syndrome (IBS), is granted. REMANDED Entitlement to service connection for a left eye disability is remanded. Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran has, or has had at any time during the appeal, a respiratory disorder other than COPD, to include as due to an undiagnosed illness related to service in Southwest Asia. 2. The preponderance of the evidence weighs against a finding that the Veteran has a chronic skin disorder which began in service, or is related to service to include as an undiagnosed illness related to service in Southwest Asia. 3. The Veteran’s chronic maxillary sinusitis is not manifested by three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 4. The Veteran’s gastroenteritis, to include IBS, is manifested by symptoms of diarrhea, vomiting, and constipation of moderate severity, with episodes of bowel disturbance with abdominal distress; severe symptoms of diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress, have not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability, other than COPD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.317. 2. The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.317. 3. The criteria for a rating higher than 10 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6513. 4. The criteria for a 10 percent rating, but no higher, for gastroenteritis with IBS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.114, DC 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1989 to October 1993. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, his mother, and his wife, testified at a video conference hearing before the undersigned in April 2018. A transcript of the proceeding is of record. This matter was previously before the Board in January 2019. The Board remanded the appeal to obtain additional examinations and medical opinions pertaining to the issues on appeal, and to obtain private treatment records. A review of the file reflects that the Veteran was provided additional examinations and was requested to provide information regarding his private treatment providers in September 2019 and January 2020 correspondence, which were not responded to. The case has now returned to the Board for further adjudication. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For those who served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); see Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Respiratory Disorder The Veteran contends that he was exposed to asbestos while working on numerous aircraft carriers during service, which is a source of his respiratory problems. He also asserted that he was exposed to other powerful chemicals, including trichlorofluoromethane. See May 2012 Statement. During the April 2018 Board hearing, the Veteran reported that he had lung problems after having been exposed to trichlorofluoromethane during service. Service treatment records do not show any treatment, complaints, or diagnosis of any respiratory disability. In fact, in an October 1992 service treatment record regarding asbestos surveillance, the Veteran specifically denied currently working with or previously having worked with asbestos. His September 1993 separation examination was normal for the chest and lungs, and he denied having any shortness of breath in his Report of Medical History. In a December 2019 VA examination, the examiner noted that the Veteran’s VA treatment records showed a diagnosis of chronic obstructive pulmonary disease (COPD), and found that it was at least as likely as not that his COPD was due to service. The examiner explained that there was medical literature that indicated that occupational exposures were an important risk factor for COPD. Based on this opinion, the Veteran was awarded service connection for COPD in a July 2020 rating decision. With regard to asbestos exposure, the examiner specifically indicated that there was no evidence of asbestos exposure in the file or any diagnosis of asbestosis. The examiner also indicated that his chest x-ray was normal, and that the Veteran did not have any other respiratory disorders besides COPD. The Board finds that the Veteran does not have a diagnosis of a respiratory disorder, other than COPD, at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The December 2019 VA examination is afforded greater probative value due to the rationale provided for the opinion, as it is based on objective testing and provides responses to a full range of inquiries. Conversely, there is no other medical examination of record which notes a diagnosis of a respiratory disorder other than COPD. It is plausible to have a breathing disability as a Persian Gulf Veteran that could qualify as an “undiagnosed illness.” However, there must be objective indications of a qualifying chronic disability. See 38 C.F.R. § 3.317. Here, the preponderance of the evidence indicates the Veteran does not have a respiratory disability, other than COPD, given the findings in the December 2019 VA examination. The Veteran, as a lay person, is competent to report experiencing any symptoms that come to him through the senses at any given time, including any observable breathing problems; however, he does not have the requisite medical training or expertise to attribute those symptoms to a diagnosis of a clinical respiratory disorder. A clinical diagnosis of a respiratory disorder is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board affords greater probative weight to the competent medical evidence. The weight of the evidence demonstrates that the Veteran does not currently have a respiratory disorder, other than COPD. The evidence similarly does not support a finding that the Veteran experiences respiratory symptoms manifested to a level of 10 percent that have not been attributed to a known diagnosis, rendering service connection under 38 C.F.R. § 3.317 unavailable here. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement to service connection for disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to his claim for a respiratory disability due to asbestos exposure, thus, further discussion of the in-service incurrence or nexus elements is unnecessary. Accordingly, service connection for a respiratory disability, other than COPD, is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Skin Disorder The Veteran contends that he developed a rash due to his exposure to jet fuel, including trichlorofluoromethane, in service. During the April 2018 Board hearing, he reported that he had flare-ups which come and go. The Veteran was advised to try to submit photographs or any treatment records that document his symptoms during a flare-up in order to establish that he has a current skin disability. A review of the file shows that the Veteran has not submitted any additional evidence demonstrating that he has a current skin disability. Service treatment records do not show any treatment, complaints, or diagnosis of any skin disability. The Veteran’s September 1993 separation examination was normal for skin and the lymphatic system, and he denied having any skin diseases in his Report of Medical History. In a December 2013 VA treatment record, the Veteran reported that he had eczema, however the examiner did not find any rash. In a December 2014 VA examination, the examiner noted that the Veteran had a diagnosis of urticaria. The Veteran reported that his symptoms onset in 1994, and consisted of chronic itching and rashes, however his symptoms were intermittent. The examiner noted that the Veteran did not have hives at the time of the examination. In a separate December 2014 VA Gulf War General examination, the examiner noted that the Veteran did not have or ever have any skin disorders. The examiner opined that it was less likely than not that the disability pattern or diagnosed disease was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner explained that the September 1993 separation examination was negative for skin problems or any diagnosis, and that treatment records were negative for any skin condition or diagnosis. In December 2019 VA examination, the examiner noted that the Veteran did not have a current skin condition. When asked to provide his medical history, the Veteran indicated that his rashes onset in 1991, and would occur every 3-4 months. However, he indicated that he had not had a rash since 2004, after he left his job. The Veteran reported that his rashes were linked to stress, and that his rashes resolved once he reduced his stress level. The examiner concluded that it was less likely than not that the Veteran’s claimed skin disorder was due to service. The examiner explained that previous examinations, including the Veteran’s September 1993 separation examination were negative for any skin problems or diagnosis and there were no treatment records for skin problems. The examiner also noted that the Veteran had indicated that his rashes were related to stress, and that they stopped in 2004 when he started another job. The Board finds that the preponderance of the evidence weighs against a finding that the Veteran has a chronic skin disorder which began in service, or is related to service to include as an undiagnosed illness related to service in Southwest Asia. Here, the Veteran has provided inconsistent accounts as to the onset and chronicity of any particular skin disorder. He reported chronicity during a hearing in 2018, but then told a VA examiner in 2019 VA that his rashes had last manifested in 2004. He was advised of alternate ways to provide evidence of his skin manifestations such as submitting photographs or treatment records during a flare. The Veteran has a minimal burden of proof to establish a chronic skin disorder being manifest since service, and accepting his own statements as credible provides very little basis to obtain an adequate opinion as they are inconsistent and irreconcilable. The VA examiner in 2019 opinion is based on both a review of the record and what the Veteran told the examiner and is afforded greater probative value due to the rationale provided for the opinion, as it is based on objective testing, provides responses to a full range of inquiries, and is based upon the Veteran’s medical history. While a December 2014 VA examination did note a diagnosis of urticaria in 2014, there is no indication as to how that diagnosis was established. Moreover, there are no private or VA treatment records that note a diagnosis of urticaria, and the Veteran has asserted in his most recent examination that his rashes stopped in 2004 and are related to stress. Thus, the December 2014 VA examination is afforded less probative weight. Signs or symptoms involving skin may be manifestations of an undiagnosed illness for a Persian Gulf War Veteran, however, there must be objective indications of a qualifying chronic disability. See 38 C.F.R. § 3.317. Here, the preponderance of the evidence indicates the Veteran does not have a chronic skin disability, given the findings in the December 2019 VA examination and the Veteran’s own statements. The Veteran, as a lay person, is competent to report experiencing any symptoms that come to him through the senses at any given time, including any observable skin symptoms; however, he does not have the requisite medical training or expertise to attribute those symptoms to a diagnosis of a skin disorder. A clinical diagnosis of a skin disorder is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Veteran’s statements regarding a diagnosis of a skin disorder are inconsistent. While he had reported having flare-ups during the April 2018 Board hearing, during the December 2019 VA examination, the Veteran reported that he had not had rashes since 2004, which is several years before his May 2011 claim for service connection. He also asserted that his rashes were related to stress. Thus, the Board affords greater probative weight to the competent medical evidence. The weight of the evidence demonstrates that the Veteran does not currently have a skin disorder. The evidence similarly does not support a finding that the Veteran experiences signs or symptoms involving the skin manifested to a level of 10 percent that have not been attributed to a known diagnosis, rendering service connection under 38 C.F.R. § 3.317 unavailable here. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement to service connection for disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to his claim for a skin disability, thus, further discussion of the in-service incurrence or nexus elements is unnecessary. Accordingly, service connection for a skin disability, is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Sinusitis The Veteran is currently assigned a 10 percent rating for his service-connected sinusitis under 38 C.F.R. § 4.97, DC 6513. The General Rating Formula for Sinusitis (DCs 6510 to 6514) provides a noncompensable rating if detected by x-ray only; a 10 percent rating for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; a 30 percent rating for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; and a 50 percent rating following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. During an October 2011 VA examination, the Veteran was noted to have a history of sinusitis. The examination revealed that he did not have history of incapacitating episodes, but that he had a history of non-incapacitating episodes where he reported symptoms of headaches, fever, purulent drainage, and sinus pain. He reported having four episodes per year of non-incapacitating episodes, which lasted 3 to 4 days. There was no history of chronic osteomyelitis. The Veteran was noted to have polyps, but no diagnosis of allergic or vasomotor rhinitis. During the April 2018 Board hearing, the Veteran reported having flare-ups of his sinusitis almost every day. He indicated that he would take Benadryl and that his sinuses would drain during the night. He reported that he would have to wake up during the night, throw up, and then try to get back to sleep. The Veteran reported that he experienced headaches, but not crusting in the nostrils, and that he had 7 or more non-incapacitating episodes in a year. The Veteran also reported that there were many times where he had to go to the emergency room or the VA for treatment because he was unable to breathe. He indicated that he would receive antibiotics or steroids, and then his symptoms would settle back down after a few days. The Veteran also reported that he experienced chronic pain from coughing and hacking during flare-ups. VA treatment records from April 2012, September 2014, November 2014, and September 2019 reveal that the Veteran sought treatment and medication for sinusitis. In November 2014, the Veteran reported that he could not breathe due to his symptoms. In the December 2019 VA examination, the Veteran reported that he has chronic sinus congestion and drainage that has not improved. He denied taking any over the counter medication, but reported that he may get one sinus infection a year that requires antibiotics. He reported that he wakes up every morning blowing out copious amounts of mucus, and feels feverish in the mornings. The examination revealed that the Veteran had chronic sinusitis, but that he did not have episodes of sinusitis, near constant sinusitis, headaches, pain, tenderness, purulent discharge, or crusting. The examiner noted that the Veteran did not have any non-incapacitating or incapacitating episodes in the past 12 months. The Veteran also did not have any history of a radical sinus surgery. As shown above, the criteria for a rating higher than 10 percent for sinusitis is not warranted as three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting is not shown by the record. Rather, the most recent examination revealed no non-incapacitating or incapacitating episodes per year of sinusitis. The October 2011 VA examination did not reveal that the Veteran had any incapacitating episodes, and he only reported having 4 non-incapacitating episodes per year. In addition, the clinical records do not reflect any findings which tend to meet, or more nearly approximate, these criteria. Hence, the criteria for a 30 percent rating have not been met. The Board has considered whether a higher rating by analogy is available through another diagnostic code that considers similar symptoms, but has found none. The Board notes that in the October 2011 VA examination, the Veteran was noted to have polyps. DC 6522 provides a 30 percent rating for allergic or vasomotor rhinitis with polyps, however neither of the examinations show a diagnosis of allergic or vasomotor rhinitis. In addition, VA treatment records and the most recent December 2019 VA examination do not show any evidence of polyps. Thus, the Board finds no other provision upon which to assign a rating higher than 10 percent for the Veteran’s sinusitis. The Board acknowledges the Veteran’s testimony during the April 2018 Board hearing that he has daily flare-ups. The Veteran is competent to report his symptoms and has presented credible testimony. However, the Board finds that neither the lay nor medical evidence demonstrates that the criteria for the next higher evaluations have been met. Notably, during the April 2018 hearing, the Veteran denied having any purulent discharge or crusting during his flare-ups, and reported that he only sometimes experienced headaches during a flare-up. He reported receiving anti-biotic and steroid treatment, but there is no documentary evidence concerning the frequency and duration of the use of these types of treatment. Thus, the Board finds that a rating in excess of 10 percent for chronic maxillary sinusitis is not warranted and the claim must be denied. Gastroenteritis The Veteran is currently assigned a noncompensable rating under DC 7399-7307 for gastritis. The severity of a digestive system disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA’s Schedule for Rating Disabilities at 38 C.F.R. § 4.114. The Board points out that ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture. 38 C.F.R. § 4.114. The Veteran’s specific disability, gastroenteritis, is not listed in the Rating Schedule. The AOJ assigned DC 7399 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and “99.” 38 C.F.R. § 4.20. The AOJ determined that the most closely analogous diagnostic code was 38 C.F.R. § 4.114, DC 7307 for gastritis. Under DC 7307, a 60 percent rating is warranted for chronic hypertrophic gastritis with severe hemorrhages, or large ulcerated or eroded areas; a 30 percent rating is warranted for chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and symptoms; and a 10 percent rating is warranted for chronic hypertrophic gastritis with small nodular lesions, and symptoms. 38 C.F.R. § 4.114, DC 7307. During an October 2011 VA examination, the examiner noted that the Veteran had a diagnosis of gastroenteritis. The Veteran reported that he had flare-ups every 6 months with watery diarrhea, stools, and vomiting, and that he was presently taking medication. The examiner did not note any signs or symptoms due to esophageal conditions, including any epigastric distress. During the April 2018 Board hearing, the Veteran reported that he was unable to consume dairy, and that he suffered from diarrhea that would wake him up in the middle of the night. He also indicated that he experienced vomiting, and that he would have episodes of his symptoms once a month about every two months. In a June 2018 private esophagogastroduodenoscopy report, the Veteran was noted to have diagnoses of gastroesophageal disease (GERD), diarrhea, disaphragmatic hernia, gastritis/duodenitis. In a July 2018 private treatment record, the examiner noted that the Veteran had irritable bowel syndrome (IBS) with symptoms of constipation and diarrhea, abdominal pain, and intermittent rectal bleeding. During a January 2020 VA examination, the examiner noted diagnoses of IBS and gastroenteritis. The Veteran was diagnosed with IBS in 2018, and a colonoscopy revealed a benign neoplasm of the of the colon and internal grade I hemorrhoids. The Veteran reported that he experiences gastroenteritis at least once every other month where he will have diarrhea and vomiting. He also reported periods of bloating and constipation. The examiner noted that from a medical standpoint, IBS has been the true diagnosis, but was missed because the Veteran did not seek treatment from providers and instead, treated himself. The examiner noted that the Veteran did not have hypertrophic gastritis, or any symptoms or findings related to it, or any incapacitating episodes due to signs or symptoms of any stomach or duodenum condition. Irritable colon syndrome is rated under DC 7319 and provides that a noncompensable rating is warranted for mild manifestations with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate manifestations with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is warranted for severe manifestations with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Upon reviewing the record, the Board finds that DC 7319 is the most appropriate criteria for rating the Veteran’s disability, as it specifically pertains to the Veteran’s diagnosis of irritable bowel syndrome. Although the Veteran has been noted to have GERD, a hernia, and gastritis, in the most recent January 2020 VA examination, the examiner noted that from a medical standpoint, IBS has been the true diagnosis, but was missed because the Veteran did not seek treatment from providers. Notably, in the January 2020 VA examination, the examiner did not find that the Veteran had hypertrophic gastritis. July 2018 private treatment records also noted a diagnosis of IBS. Furthermore, the record shows that his predominant symptoms of diarrhea and constipation are contemplated by the rating criteria for irritable colon syndrome. Thus, application of DC 7319 is appropriate. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (finding that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”). After reviewing the evidence and considering the rating criteria under DC 7319, the Board finds that a rating of 10 percent is warranted for the Veteran’s IBS and gastroenteritis. The record reflects that the Veteran’s disability is manifested by episodes of constipation, diarrhea, and vomiting, with additional symptoms of bloating, abdominal pain, and rectal bleeding. In the opinion of the Board, such lay descriptions meet the criteria for a 10 percent rating, but do not meet, or more closely approximate, the criteria for severe diarrhea or alternating constipation and diarrhea, with constant abdominal distress. Notably, the Veteran reported both during the April 2018 Board hearing and the January 2020 VA examination, that he would experience episodes once a month, every other month or every two months. In sum, the evidence reflects that a disability rating of 10 percent, but no higher, is warranted for the Veteran’s service-connected gastroenteritis with IBS under DC 7319, for irritable colon syndrome. REASONS FOR REMAND Left and Right Eye Disabilities The Veteran contends that his current left and right eye disabilities are due to service. Specifically, during the April 2018 Board hearing, the Veteran reported that his eyes got exposed to a chemical during service. In January 2019, the Board remanded these claims for opinion as follows: The examiner should specifically identify all current eye disorders including dye eye syndrome, aniscoria and the claimed diagnosis of macular degeneration and provide opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current eye disorder occurred in or is otherwise etiologically related to the Veteran’s military service, to include his service in Southeast Asia and the instance of treatment for left eye injury in June 1991. The examiner should discuss whether there is any medical reason to accept or reject the Veteran’s belief that his eye injury in 1991 and exposures to asbestos, jet fuel and/or trichlorofluoromethane resulted in any current eye disorder. However, the AOJ modified the Board’s remand directive and requested the examiner to answer the following question: The examiner should specifically identify all current eye disorders including dye eye syndrome, aniscoria and the claimed diagnosis of macular degeneration and provide opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current eye disorder occurred in or is otherwise etiologically related to the Veteran’s military service, to include his service in Southeast Asia and the instance of treatment for left eye injury in June 1991. Unfortunately, the AOJ did not ask the examiner should discuss whether there is any medical reason to accept or reject the Veteran’s belief that his eye injury in 1991 and exposures to asbestos, jet fuel and/or trichlorofluoromethane resulted in any current eye disorder as directed in the prior remand. This issue, therefore, is remand for compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Right Shoulder, Left Shoulder, Low Back In the January 2019 Board decision, the Agency of Original Jurisdiction (AOJ) was directed to obtain new examinations and medical opinions addressing the nature and etiology of the Veteran’s low back and right and left shoulder disabilities. The examiner was specifically directed to accept as fact that the Veteran was required to carry 100-pound chains on his shoulders during service. The January 2019 Board decision also granted service connection for fibromyalgia. The Veteran was examined in December 2019, and the examiner then provided a revised opinion in January 2020 where she concluded that it was less likely than not that the Veteran’s low back degenerative arthritis was due to service. The examiner noted that the Veteran did not report carrying heavy chains to her, and that the Veteran was also diagnosed with fibromyalgia which could be related to the pain the Veteran is feeling in his back. The examiner also indicated that the Veteran’s degenerative arthritis was more likely due to age and normal wear on the body, but did not provide any rationale or support for this conclusion. In the January 2020 opinion for the shoulders, the examiner concluded that it was less likely than not that the Veteran’s degenerative arthritis was due to service. The examiner again noted that the Veteran did not mention carrying chains in service, and she noted that upon review of his VA treatment records, there was no evidence of chronicity of care. However, the examiner did not address the Veteran’s July 2018 private treatment records which noted that the Veteran’s shoulder symptoms onset in 2009. Given the examiner’s assertion that the Veteran’s back pain may be affected by his now service-connected fibromyalgia, a remand is necessary to obtain an addendum opinion addressing whether the Veteran’s fibromyalgia aggravates the Veteran’s back and shoulder disabilities. In addition, because the examiner did not provide sufficient rationale for the etiology of the Veteran’s back disorder, and did not address the Veteran’s private treatment received for his shoulder and back or take into account the instruction to accept the Veteran’s prior testimony regarding carrying chains in service, additional addendum opinions are needed. The matters are REMANDED for the following action: 1. The AOJ should obtain and associate with the file, any outstanding private or VA treatment records pertaining to the Veteran’s low back, right shoulder, and left shoulder disabilities. 2. After obtaining any outstanding records, the claims file should be provided to an appropriate examiner to provide an addendum opinion addressing the nature and etiology of the Veteran’s left shoulder, right shoulder, and low back disabilities. If, after review of the file, the examiner determines that another VA examination is necessary, such must be scheduled, and the Veteran must be notified. The examiner should specifically indicate whether the Veteran has left shoulder, right shoulder and/or low back disabilities including consideration of the prior diagnoses of right shoulder tendinitis and rotator cuff injury, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed disorders occurred in or are otherwise etiologically related to the Veteran’s military service, to include holding heavy chains on his shoulders. The examiner must also provide an opinion as to whether it is at least as likely as not that the Veteran’s low back, right shoulder, and/or left shoulder disabilities are caused by service-connected fibromyalgia OR that the Veteran’s fibromyalgia causes additional functional impairment of the low back, right shoulder and/or left shoulder (i.e., a medically discernible increase in the frequency, severity and/or duration of any symptoms, limitation of motion etc, even if temporary, beyond the baseline level of expected disability). The examiner should discuss whether there is any medical reason to accept or reject the Veteran’s belief that his right shoulder, left shoulder and/or low back disabilities are due to the rigors of his military duties. In so doing, the examiner should accept as fact that the Veteran was required to carry 100-pound chains on his shoulders during service. The examiner should consider the following: • the Veteran’s STRs which include his denial of a painful or “trick” shoulder as well as recurrent back pain at separation; • the Veteran’s treatment for a pulled right shoulder in March and September 1998, and right shoulder rotator cuff injury and tendinitis in 2009; • the November 2014, December 2014, and December 2019 VA examinations and medical opinions; • July 2018 private treatment records which document an onset of shoulder pain in 2009, as well as symptoms of pain in the back and shoulders; • and the April 2018 hearing testimony. The examiner must provide all findings, along with a complete rationale for his or her opinion(s). The examiner must not rely solely on the absence of a diagnosis or symptoms in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. Any opinion should be reconciled with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If the lay evidence is rejected, an explanation must be provided. If an opinion cannot be made without resort to speculation, please state so and include an explanation for that conclusion. 3. The claims file should be provided to an appropriate examiner to provide an addendum opinion as to whether the Veteran’s dye eye syndrome, aniscoria, and vitreous degeneration at least as likely as not (50 percent or greater probability) occurred in or are otherwise etiologically related to the Veteran’s military service, to include his service in Southeast Asia and the instance of treatment for left eye injury in June 1991. The examiner should discuss whether there is any medical reason to accept or reject the Veteran’s belief that his eye injury in 1991 and exposures to asbestos, jet fuel and/or trichlorofluoromethane resulted in any current eye disorder. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.