Citation Nr: A25035797 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240903-470652 DATE: April 18, 2025 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for chronic fatigue is denied. Entitlement to service connection for Meniere's disease is denied. Entitlement to service connection for nausea is denied. Entitlement to service connection for left big toe condition is denied. Entitlement to service connection for vertigo is denied. REMANDED Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an anxiety disorder is remanded. Entitlement to service connection for an eating disorder is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to service connection for major depression is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The evidence of record is persuasively against an in-service injury, event, or disease involving the right shoulder. 2. The Veteran does not have a diagnosis of a right ankle disability nor does the evidence demonstrate functional impairment of earning capacity caused by the right ankle. 3. The Veteran does not have a diagnosis of chronic fatigue. 4. The Veteran does not have a diagnosis of Meniere's disease. 5. The Veteran does not have a diagnosis of nausea or symptoms or treatment for nausea that is supported by the evidence of record. 6. The Veteran does not have a diagnosis of left big toe condition nor does the evidence demonstrate functional impairment of earning capacity caused by the left big toe. 7. The Veteran does not have a diagnosis of vertigo. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. 2. The criteria for service connection for a right ankle disability have not been met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. 3. The criteria for service connection for chronic fatigue have not been met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. 4. The criteria for service connection for Meniere's disease have not been met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. 5. The criteria for service connection for nausea have not been met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. 6. The criteria for service connection for left big toe condition have not been met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. 7. The criteria for service connection for vertigo have not been met. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to February 1992. The rating decision on appeal was issued in February 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. 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 of Veterans' Appeals (Board) may only consider the evidence of record at the time of the February 2024 agency of original jurisdiction (AOJ) decision 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 claim[s], 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 for service connection for diverticulitis, tinnitus, anxiety, PTSD, insomnia, an eating disorder, and major depression, 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). Service Connection In order to establish service connection for a present disability the claimant must show the existence of a present disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship or "nexus" between the present disability and the in-service injury or disease. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for a right shoulder disability. The Veteran contends she has a right shoulder disability due to service. VA treatment records document the Veteran receives treatment for right shoulder pain including physical therapy. The Board finds this is evidence of functional impairment of earning capacity. As to an in-service event, injury, or disease, the Board finds the evidence is persuasively against such an occurrence. For example, service treatment records (STRs) do not show any treatment for a right shoulder condition. The lack of treatment is noteworthy because on the March 2023 VA Form VA Form 21-0781a, Statement in Support of Claim for PTSD Secondary to Personal Assault the Veteran stated her shoulder condition was caused by a softball dislocation. It is highly unlikely the Veteran would not have sought treatment for a shoulder dislocation when she visited sick call for issues such as a left hip injury, sore throat and cough, laryngitis, muscular chest pain, etc. The Veteran's pattern during service was to visit sick call when she was ill, and she never reported a right shoulder injury. During April 2018 VA treatment, the Veteran reported right shoulder pain for several years, which started while playing softball. The Veteran did not report pain that began in service or any shoulder dislocation. As such, the evidence of record is persuasively against an in-service disease, event, or injury related to the right shoulder. Therefore, service connection for a right shoulder disability is denied. 2. Entitlement to service connection for a right ankle disability. The Veteran contends she has a right ankle disability due to service. On the March 2023 VA Form 21-0781a, the Veteran reported ongoing tenderness and pain when stressed in the right ankle. The Board finds the evidence of record is persuasively against a right ankle disability or right ankle pain that manifests as functional impairment of earning capacity caused by the right ankle. During a July 2022 VA review of systems, the Veteran denied muscle and joint pain. During a February 2023 VA review of systems, the only musculoskeletal issues noted were the knees and back. VA treatment records from April 2018 to December 2023 do not document any right ankle complaints. During this same time frame, the Veteran reported right shoulder pain, right and left finger pains, and she was treated for other conditions such as hypertension, hypothyroidism. At no point was the Veteran found to have any right ankle condition nor did she report right ankle pain. While contemporaneous treatment records are not required to substantiate a Veteran's lay assertion of symptoms, the lack of such evidence may be noteworthy. In the present case, the Veteran failed to report right ankle pain while receiving treatment for other musculoskeletal conditions, and examiners did not identify any right ankle condition during musculoskeletal review of systems. The Board has considered the Veteran's report that she fell into a ditch during service and injured her right ankle. However, a current disability during the appeal period is required to substantiate a claim for service connection, and the Veteran's report of a fall during service does not show she has a current right ankle disability during the appeal period. As such, the weight of the evidence fails to support a current right ankle disability or pain that causes functional impairment in earning capacity. Therefore, the claim for service connection for a right ankle disability is denied. 3. Entitlement to service connection for chronic fatigue. 4. Entitlement to service connection for Meniere's disease. 5. Entitlement to service connection for nausea. 6. Entitlement to service connection for left big toe condition. 7. Entitlement to service connection for vertigo. The Veteran contends she has chronic fatigue, Meniere's disease, nausea, a left big toe condition, and vertigo that are related to service. Evidence of record includes lay statements and VA treatment records. During July 2022 VA treatment, the Veteran denied nausea. The Veteran did not report vertigo nor was she found to have Meniere's disease during the February 2024 VA hearing loss/tinnitus examination. Treatment records are silent for fatigue, Meniere's disease, nausea, vertigo, and a left big toe condition. Regarding the left big toe, the Veteran stated on the March 2023 VA Form 21-0781a that during service she lost both big toenails after being left outside at a guard post in the snow for 24 hours. She was not provided cold weather gear. Though the toenails grew back, she has a spot under her left big toe that did not return feeling. It feels like pressure and that it is continually asleep. She was told to "soldier on" and not report the issues with her toes during service. The Board has considered the Veteran's statement regarding the in-service cause of a left big toe condition. However, there is no evidence of a left big toe condition during the appeal or close in time to the appeal, or pain which manifests as functional impairment in earning capacity, nor is there a current diagnosis of record. During treatment for multiple conditions after service, the Veteran did not report any left big toe problem. The Veteran is incentivized to report problems to her treating physicians to receive proper treatment, and at no point has she reported the left big toe condition. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). As the weight of the evidence shows no current disability of chronic fatigue, Meniere's disease, nausea, a left big toe condition, and vertigo, the claims must be denied. REASONS FOR REMAND 1. Entitlement to service connection for diverticulitis is remanded. A February 2023 VA treatment record documents the Veteran has a history of diverticulitis in the past, "mostly ok." It is unclear if the Veteran still has diverticulitis or related symptoms. The VA's failure to confirm whether she still has diverticulitis or related symptoms is a pre-decisional duty to assist error which must be corrected with a remand. Therefore, a remand is necessary to determine if the Veteran still has diverticulitis. 2. Entitlement to service connection for tinnitus is remanded. The Veteran underwent a VA examination in February 2024. The examiner provided a negative nexus opinion. The examiner opined that tinnitus is not related to service due to no complaint or treatment for tinnitus in STRs or within one year of service discharge; therefore, the Veteran's tinnitus is likely due to other causes. The examiner referenced medical literature which stated, in part, that in most cases, tinnitus is a sensorineural reaction in the brain to damage in the ear and auditory system. The examiner relied solely on a lack of treatment in-service and/or within one year of service discharge as the sole basis for the negative opinion. The examiner also failed to elicit information from the Veteran to determine if she had noise exposure post-service that could account for her tinnitus. A medical opinion that relies solely on a lack of medical treatment is inadequate. A medical opinion that does not consider all the relevant evidence of record is also inadequate. This is a pre-decisional duty to assist error which must be corrected with a remand. Therefore, remand is necessary for an adequate medical opinion. 3. Entitlement to service connection for an anxiety disorder is remanded. 4. Entitlement to service connection for an eating disorder is remanded. 5. Entitlement to service connection for insomnia is remanded. 6. Entitlement to service connection for major depression is remanded. 7. Entitlement to service connection for PTSD is remanded. On the March 2023 VA Form 21-0781a, the Veteran lists military sexual trauma (MST) as the cause for her psychiatric conditions. A February 2023 VA treatment record also mentions MST. The VA did not perform its heightened duty to notify in this case. There is no indication in the claims file that the Veteran was advised that evidence from sources other than her service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and she was not given an opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. The failure to provide this information is a pre-decisional duty to assist error which must be corrected with a remand. A February 2023 VA treatment record documents the Veteran had a history of mental health concerns including an eating disorder, PTSD, depression, and anxiety, but the Veteran did not receive an examination to determine if she had any psychiatric conditions during her appeal or close in time to her appeal. The failure to determine if the Veteran has a current psychiatric condition is also a pre-decisional duty to assist error which must be corrected with a remand. Therefore, a remand is necessary to fulfill the heightened duty to notify in this case and to determine if the Veteran had any psychiatric conditions close in time to her appeal or during her appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine if she has diverticulitis or if she had diverticulitis at any point during the appeal period. If the Veteran is determined to have diverticulitis at the time of the examination and/or during the appeal period, the examiner should respond to the following: Is it at least as likely as not the Veteran has diverticulitis that is related to service, to include exposure to fuel, exhaust, and chemicals? 2. Provide the Veteran an addendum opinion regarding the nature and etiology of her tinnitus. After records review, the examiner should respond to the following: Is it at least as likely as not the Veteran has tinnitus that is related to service? 3. Provide the Veteran the required information to substantiate her claim for PTSD due to personal assault. Make all reasonable efforts to verify her stressors, including whether she was left at a guard post for 24 hours without proper facilities and gear. 4. After the Veteran has provided the requested information or reasonable attempts have been made to acquire the information related to her personal assault, schedule her for a mental health examination to determine what, if any, psychiatric conditions she experienced during the appeal period. After records review, the examiner should respond to the following: Is it at least as likely as not the Veteran has any psychiatric condition that is related to service, to include the reported in-service stressors? A full rationale must be provided for all opinions rendered. Ann K. Minami Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.