Citation Nr: A25035157 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240905-470818 DATE: April 16, 2025 ORDER Entitlement to service connection for headaches, secondary to service-connected tinnitus is granted. Entitlement to service connection for a liver condition is denied. Entitlement to service connection for a right-hand condition is denied. Entitlement to service connection for a urinary condition is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for irritable bowel syndrome (IBS) is denied. REMANDED Entitlement to service connection for lung nodules is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a left shoulder condition is remanded. FINDINGS OF FACT 1. The Veteran's headaches are aggravated by his service-connected tinnitus. 2. The Veteran has no confirmed diagnosed disability relating to the liver, right hand, urinary condition, erectile dysfunction, or IBS. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches as secondary to service-connected tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a liver condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right-hand condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a urinary condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for IBS are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from September 2010 to February 2011. This matter comes before the Board of Veterans' Appeals (Board) from September 2023 and April 2024 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 and April 2024 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for a lung condition, GERD, and left shoulder condition, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for headaches, secondary to service-connected tinnitus Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Veteran contends that he suffers from headaches due to his service-connected tinnitus. See VA 21-526EZ, Fully Developed Claim (Compensation), May 2023. The Veteran underwent a VA examination in May 2023. The examiner stated that it was speculation as to whether the Veteran's headaches were caused by his tinnitus as the Veteran did not have an official headache diagnosis. However, the examiner stated that tinnitus can be associated with multiple types of headaches. Some patients report tinnitus worsens consistently during headache attacks. See C&P Exam, May 2023. While there is no confirmed headache diagnosis, the Board finds that headaches are the type of disease that is capable of lay observation. Further the Board credits the Veteran's report and finds the Veteran suffers from consistent headaches. As such, the Board finds that the Veteran's headaches qualify as a confirmed disability. Resolving the benefit of the doubt in favor of the Veteran, the evidence reflects that the Veteran's headaches are aggravated by his tinnitus. The Veteran has been diagnosed with headaches. See C&P Exam, May 2023. There is no adequate medical opinion contrary to a conclusion that the headaches are not caused by his tinnitus. In fact, the May 2023 VA opinion states that tinnitus can be associated with headaches and can worsen headaches. Thus, the evidence is at least approximately balanced as to whether this disability is secondary to his service-connected tinnitus. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.") 2. Entitlement to service connection for a liver condition 3. Entitlement to service connection for a right-hand condition 4. Entitlement to service connection for a urinary condition 5. Entitlement to service connection for erectile dysfunction 6. Entitlement to service connection for irritable bowel syndrome (IBS) The Veteran contends he suffers from a liver, right hand, urinary, erectile dysfunction, and IBS disability as a result of his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records and post-service treatment records are silent for any complaints, treatment, or diagnosis of a liver, right hand, urinary, erectile dysfunction, or IBS disability. The Board concludes that the Veteran does not have a current diagnosis of a liver, right hand, urinary, erectile dysfunction, and IBS disability and has not had one 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). While the Veteran believes there is a current diagnosis of a liver, right hand, urinary, erectile dysfunction, and IBS disability, the Veteran is not competent to provide a diagnosis in this case. These issues are medically complex, as they require specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As there is no evidence of an in-service event for any a liver, right hand, urinary, erectile dysfunction, and IBS disability, and there is no current diagnosis for any of these disabilities, service connection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for lung nodules is remanded. 2. Entitlement to service connection for GERD is remanded. Although the Board regrets additional delay, remand is necessary to correct a duty to assist error in failing to obtain an adequate opinion for his lung nodule claim and failing to obtain an opinion for his GERD. The record reflects that the Veteran was exposed to asbestos in service. In February 2024, a VA opinion was obtained. The examiner opined that the Veteran's lung disability was not due to his exposure to asbestos in service as he does not suffer from a condition presumptively associated with asbestos exposure and he does not have asbestosis. See C&P Exam, February 2024. This opinion is inadequate. The Veteran does not need to suffer from a condition that is presumptively associated with asbestos exposure nor does the Veteran need to suffer from asbestosis to be awarded service connection for his lung nodules. The examiner failed to opine whether the Veteran's lung nodules were directly associated with his exposure to asbestos. As such, remand is necessary to obtain an opinion to determine if the Veteran's lung nodules were directly associated with his exposure to asbestos. Further, the record demonstrates that the Veteran suffered from an upper respiratory infection in service in December 2010. See STR-Medical, August 2012. The examiner failed to address whether the Veteran's current lung nodules could have been caused by his in-service upper respiratory infection. Finally, the Veteran has a diagnosis of GERD. However, no opinion was obtained to determine if the Veteran's exposure to asbestos caused the development of GERD. 3. Entitlement to service connection for a left shoulder condition is remanded. Remand is necessary to correct a duty to assist error in failing to obtain a VA opinion. The Veteran contends that he suffers from a left shoulder condition as a result of his military service. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be pre-existing. When a pre-existing disorder is noted on entry or is determined to have preexisted service, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Service treatment records document left shoulder pain and a congenital deformity of the scapula. See STR, September 2020. While the Veteran suffers from a preexisting congenital deformity which, on its own, cannot be service connected, no opinion was obtained to determine if the Veteran's preexisting shoulder condition was aggravated by his service. The matters are REMANDED for the following action: 1. The claims file should be sent to an appropriate examiner to offer an opinion as to what is the medical probability that the current lung nodules and GERD onset during service or is otherwise related to an in-service injury, event, or disease, to include exposure to asbestos. 2. Next, obtain an opinion as to whether the Veteran's left shoulder congenital deformity, which pre-existed service, clearly and unmistakably was aggravated by the Veteran's military service. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. Frederic P. Gallun Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.H., 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.