IRRITABLE COLON SYNDROME

T. BLAKE CARTER · 2025 · Case ID: 25001247

MIXED

Summary

The Veteran, an Army Veteran who served from April 1994 to January 1998 and December 2001 to September 2003, appeals a June 2017 rating decision. The case involves claims for irritable bowel syndrome (IBS), right ovarian endometrioma, acquired psychiatric disorder secondary to back disability, bilateral fallopian tube scars secondary to endometriosis, eyesight disability (retinal condition), and bilateral hearing loss. The Board granted a 30 percent rating for IBS prior to January 29, 2021, and a 30 percent rating for right ovarian endometrioma throughout the appeal period. Service connection for a psychiatric disorder (major depressive disorder) secondary to the now-service-connected back disability and for bilateral fallopian tube scars secondary to endometriosis were also granted, with the Board finding the evidence evenly balanced. The claim for an eyesight disability, specifically a retinal condition diagnosed as "White Without Pressure," was denied, as the Board found it to be a congenital and asymptomatic condition not compensable for VA purposes. The claim for bilateral hearing loss was also denied, as the evidence did not establish a current compensable disability, and the Veteran's lay assertions were not deemed probative without audiological testing. The issues of entitlement to service connection for right and left knee disabilities, and for Total Disability based on Individual Unemployability (TDIU), were remanded for further development and adequate medical opinions.

Rationale

Symptoms met criteria for severe IBS; Daily abdominal distress, alternating diarrhea/constipation; Rating of 30% warranted prior to Jan 29, 2021

Service Branch

ARMY

Special Benefit

TDIU

Diagnostic Code

7319

Docket No.

19-00 379A

Full Decision Text

Citation Nr: 25001247
Decision Date: 01/29/25 Archive Date: 01/29/25

DOCKET NO. 19-00 379A
DATE: January 29, 2025

ORDER

A rating of 30 percent prior to January 29, 2021 for irritable bowel syndrome (IBS) is granted.

A rating of 30 percent, and no higher, for right ovarian endometrioma is granted.

Service connection for an acquired psychiatric disorder as secondary to service-connected back disability is granted.

Service connection for bilateral fallopian tube scars as secondary to service-connected endometriosis is granted.

Service connection for an eyesight disability, to include a retinal condition, is denied.

Service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for a right knee disability is remanded.

Entitlement to service connection for a left knee disability is remanded.

Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. For the entire appeal period prior to January 29, 2021, the Veteran's service-connected IBS resulted in a severe condition manifesting in alternating diarrhea and constipation, with more or less constant abdominal distress.

2. For the entire appeal period, the Veteran's service-connected right ovarian endometrioma has manifested in pelvic pain with heavy and irregular bleeding, not controlled by treatment.

3. The Veteran's acquired psychiatric disorder, diagnosed as major depressive disorder, is caused by a service-connected back disability.

4. The Veteran's bilateral fallopian tube scars are caused by the service-connected endometriosis.

5. The Veteran's claimed retinal condition, diagnosed as "White Without Pressure," is a congenital condition and the Veteran does not have any other diagnosed eye condition aside from refractive errors.

6. The Veteran does not have a bilateral hearing loss disability for VA purposes.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating of 30 percent prior to January 29, 201 for IBS have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319.

2. The criteria for entitlement to a rating of 30 percent, but no higher, for right ovarian endometrioma have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.116, Diagnostic Code 7629.

3. The criteria for entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected back disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310.

4. The criteria for entitlement to service connection for bilateral fallopian tube scars as secondary to service-connected endometriosis have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310.

5. The criteria for entitlement to service connection for an eyesight disability, to include a retinal condition, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 4.9.

6. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from April 1994 to January 1998 and from December 2001 to September 2003. The Veteran had active duty for training (ACDUTRA) service from June 1991 to August 1991 and May 1992 to July 1992, as well as additional service in the United States Army Reserves. This case comes on appeal of a June 2017 rating decision by the agency of original jurisdiction (AOJ). The Veteran testified before the Board at a March 2020 central office hearing in Washington, DC.

This case was previously before the Board in August 2020. At that time, the Board, in part, remanded the issues of entitlement
United States Army from April 1994 to January 1998 and from December 2001 to September 2003. The Veteran had active duty for training (ACDUTRA) service from June 1991 to August 1991 and May 1992 to July 1992, as well as additional service in the United States Army Reserves. This case comes on appeal of a June 2017 rating decision by the agency of original jurisdiction (AOJ). The Veteran testified before the Board at a March 2020 central office hearing in Washington, DC.

This case was previously before the Board in August 2020. At that time, the Board, in part, remanded the issues of entitlement to service connection for a low back disability, lymphedema of the bilateral lower extremities, a right breast condition, residuals of salivary gland resection, a right thumb condition, a respiratory condition, and a condition of the left ovary.

In a September 2021 rating decision, the AOJ, in part, granted these service connection issues, specified as lumbosacral strain, lymphedema of the right and left lower extremities, right breast cyst, residuals of salivary gland resection, salivary gland resection scarring, right thumb strain, asthma, and left ovarian endometriosis. As these issues have been granted in full, they are no longer on appeal before the Board. The remaining issues on appeal have been returned to the Board for further appellate review.

With regards to the issues decided below on the merits, there was substantial compliance with the August 2020 remand directives. The AOJ obtained VA examinations for intestinal conditions, gynecological conditions, eye conditions, and hearing loss in January 2021, as well as for PTSD in February 2021, and all are adequate to allow the Board to render informed determinations. The AOJ also readjudicated the case in a July 2022 supplemental statement of the case (SSOC).

Neither the Veteran nor her representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Rating

Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. (2007).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14.

Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App.
, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14.

Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010).

1. Entitlement to a rating in excess of 10 percent for IBS prior to January 29, 2021

On July 21, 2016, the Veteran's request for a rating in excess of 10 percent for service-connected IBS was obtained and associated with the record. In the September 2021 rating decision, the AOJ assigned a 30 percent disability rating for the service-connected IBS effective from January 29, 2021. Since the 30 percent rating is the maximum schedular rating available since January 29, 2021 and 10 percent is not the maximum schedular rating available prior to January 29, 2021, the issue has been returned to the Board and characterized accordingly. The Veteran is presumed to seek entitlement to the maximum benefits allowable throughout the period on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). As a result, the Board considers whether a rating in excess of 10 percent prior to January 29, 2021 for IBS is warranted in this case. The Veteran's IBS is rated under Diagnostic Code 7319 during the appeal period.

The criteria for evaluating IBS were changed during the pendency of this appeal, effective May 19, 2024. For evaluation of the disability during the period prior to January 29, 2021, the Board applies only the prior criteria.

Prior to May 19, 2024, this Diagnostic Code referred to "irritable colon syndrome." Under this version of the Diagnostic Code, the next higher rating of 30 percent, the maximum available, is warranted for a severe condition manifesting in diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.

The Veteran underwent a VA examination for intestinal conditions in August 2016. At that time, the examiner reported that symptoms attributable to IBS included alternating diarrhea and constipation. The examiner noted that the Veteran had frequent episodes of bowel disturbance with abdominal distress.

In May 2019 VA treatment, the Veteran presented with a history of IBS with diarrhea alternating with constipation. She sought treatment after experiencing blood in her stool. Then, in November 2019 VA treatment, the Veteran noted she had been taking lactobacillus-a probiotic-which had helped her stools but that she was still symptomatic with both diarrhea and constipation. She reported significant issues with gas and bloating.

At the March 2020 Board hearing, the Veteran testified that she experienced daily abdominal distress, along with alternating bouts of diarrhea and constipation. She explained that her daily abdominal distress had been ongoing, essentially since service.

The Veteran then had a new VA examination for intestinal conditions on January 29, 2021. At that time, she described experiencing daily gas, despite recording a food diary which had helped symptoms somewhat. Her condition required daily probiotics. Still, she had alternating diarrhea and constipation, along with abdominal distension and gas. The examiner noted frequent episodes of bowel disturbance with abdominal distress.

The Board notes that in evaluating the Veteran's IBS disability prior to the May 19, 2024 regulatory amendment, Diagnostic Code 7319 does not provide definitions for what constitutes "mild," "moderate," or "severe" manifestations of the disability. However, the amended version of Diagnostic Code 7319-though not applicable to the period prior to May 19, 2024-appears to offer additional clarity. Notably, the amended version of Diagnostic Code 7319 differentiates between 10, 20, and 30-percent ratings based solely on frequency of symptoms. Indeed, each rating requires at least two of the listed symptoms,
noted frequent episodes of bowel disturbance with abdominal distress.

The Board notes that in evaluating the Veteran's IBS disability prior to the May 19, 2024 regulatory amendment, Diagnostic Code 7319 does not provide definitions for what constitutes "mild," "moderate," or "severe" manifestations of the disability. However, the amended version of Diagnostic Code 7319-though not applicable to the period prior to May 19, 2024-appears to offer additional clarity. Notably, the amended version of Diagnostic Code 7319 differentiates between 10, 20, and 30-percent ratings based solely on frequency of symptoms. Indeed, each rating requires at least two of the listed symptoms, but no more than two of the listed symptoms. This further emphasizes that frequency is the primary factor influencing the level of severity.

Returning to the version of Diagnostic Code 7319 in place prior to May 19, 2024, a 0 percent rating is warranted for disturbances of bowel function with occasional episodes of abdominal distress, a 10 percent rating is warranted for frequent episodes of bowel disturbance with abdominal distress, and a 30 percent rating is warranted for diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319 (2023) (emphasis added). In this case, Diagnostic Code 7319 includes an additional specific symptom-diarrhea or alternating diarrhea or constipation-but otherwise is consistent in differentiating between degrees of severity based on the frequency of symptoms.

This understanding is important because there is no indication of how VA examiners who performed the Veteran's examinations concluded that the Veteran's abdominal distress was "frequent" rather than "more or less constant." However, the amended version of Diagnostic Code 7319 offers a 30 percent rating for symptoms occurring at least once per week. The correspondence of this frequency to a 30 percent rating indicates that the idea of "more or less constant" that was previously in place did not equate to symptoms that were never ending. Indeed, the current criteria for a 30 percent rating do not require that symptoms occur even every day.

Here, the Veteran's competent descriptions of her symptoms-which were relatively consistent across VA examinations, Board hearing testimony, and during the course of regular medical treatment throughout the period on appeal prior to January 29, 2021-document daily abdominal distress due to gas and bloating. Given the analysis above, the Board concludes that these symptoms most accurately meet the criteria of "more or less constant" abdominal distress. In combination with the Veteran's documented recurring bouts of diarrhea alternating with constipation, the Board finds that the Veteran's symptoms warrant a rating of 30 percent for the entire appeal period prior to January 29, 2021.

The Board has considered whether an increased rating is warranted prior to the July 2016 claim under the provisions of 38 C.F.R. § 3.400(o). This regulation allows for an effective date for an increased rating during the one-year period prior to the submission of a claim when there is evidence demonstrating it is factually ascertainable the disability worsened during that time period specifically. However, in this case, there is no such evidence. Indeed, at the March 2020 Board hearing, the Veteran testified that her IBS symptoms had been ongoing at this level of severity for many years prior to the present claim.

A 30 percent rating represents the maximum schedular evaluation for IBS under Diagnostic Code 7319. The Veteran has not raised the issue of extraschedular consideration, nor is there any indication that the Veteran's symptoms are not contemplated by the rating schedule during the appeal period prior to January 29, 2021.

2. Entitlement to a rating in excess of 10 percent for right ovarian endometrioma

The Board considers whether a rating in excess of 10 percent for right ovarian endometrioma is warranted at any time since or within one year prior to the date of claim on July 21, 2016. The Veteran's right ovarian endometrioma is evaluated under 38 C.F.R. § 4.116, Diagnostic Code 7629, which contemplates endometriosis. Under Diagnostic Code 7629, the next-higher rating of 30 percent rating is warranted for pelvic pain or heavy or irregular bleeding not controlled by treatment, and a 50 percent rating, the maximum available, is warranted for lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms.

The Board notes that 38 C.F.R. § 4.116 was amended in April 2018. Diagnostic Code 7629 was not
6. The Veteran's right ovarian endometrioma is evaluated under 38 C.F.R. § 4.116, Diagnostic Code 7629, which contemplates endometriosis. Under Diagnostic Code 7629, the next-higher rating of 30 percent rating is warranted for pelvic pain or heavy or irregular bleeding not controlled by treatment, and a 50 percent rating, the maximum available, is warranted for lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms.

The Board notes that 38 C.F.R. § 4.116 was amended in April 2018. Diagnostic Code 7629 was not amended during that update of the regulation.

The Veteran underwent a VA examination for gynecological conditions in August 2016. At that time, the examiner reported that the Veteran's symptoms included moderate, intermittent pain and pelvic pressure. Notably, the examiner did not review the Veteran's records as part of the examination.

In August 2016 VA treatment, the Veteran complained of sharp pain on the right side that she believed was related to her ovarian condition.

At the March 2020 Board hearing, the Veteran testified that she suffered from pelvic pain that was separate from the abdominal pain associated with IBS. She also reported suffering from very heavy bleeding. She noted that her VA records indicated that the condition was controlled but that she had actually continued to experience pain and bleeding.

The Veteran then underwent an additional VA examination for gynecological conditions in January 2021. At that time, the examiner noted that the Veteran's symptoms required continuous treatment with medication. With medication, the Veteran reported experiencing moderate, intermittent pain and spotting between menstrual cycles. The examiner stated that the Veteran had stress-related incontinence but that any incontinence was not due to a gynecological condition.

The Veteran underwent another VA examination for gynecological conditions in January 2022. There, the Veteran reported that she was being treated with Lupron injections but was still having severe pain and heavy bleeding. The examiner noted symptoms of intermittent, severe pain, irregular menstruation, and bleeding. There was no urinary incontinence.

Based on the medical evidence, including VA examination reports and VA treatment records, as well as the Veteran's competent testimony, it appears that the Veteran's right ovarian endometrioma has most consistently manifested in pelvic pain as well as heavy or irregular bleeding despite the Veteran being under continuous treatment. As a result, these symptoms more closely approximate a rating of 30 percent under Diagnostic Code 7629 during the entire appeal period.

The next-higher rating of 50 percent is not warranted at any point during the appeal as there is no evidence of lesions involving the bowel or bladder, nor are there other bowel or bladder symptoms associated with the ovarian condition. See 38 C.F.R. § 4.116.

The Board has considered whether an increased rating is warranted prior to the July 2016 claim under the provisions of 38 C.F.R. § 3.400(o). However, there is no evidence demonstrating that worsening of the condition was factually ascertainable during the one-year period prior to the date of claim on appeal.

The Board also acknowledges that the Veteran's representative asserted in an October 2024 brief that the Veteran's VA examiners, as nurse practitioners, did not possess sufficient expertise to evaluate the Veteran's gynecological conditions, rendering their opinions as competent as the Veteran's lay observations. The Veteran's representative failed to express how a nurse practitioner, who has been trained and certified as a medical professional, does not possess any more medical knowledge than a layperson. Further, the Veteran has not alleged that she experiences the symptoms that would warrant a rating of 50 percent. Therefore, even if the Board were to concede the Veteran's representative's point, it would not result in a higher rating. As such, the Board finds this argument without merit.

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. 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).

Moreover, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of
or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. 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).

Moreover, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected as well. 38 C.F.R. § 3.310.

For chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system which includes sensorineural hearing loss, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within one year from the date of separation from service. Sensorineural hearing loss may be considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).

1. Entitlement to service connection for an acquired psychiatric disorder

The Board previously remanded this claim to clarify the Veteran's diagnosis and to determine the etiology of any diagnosed disability. During the pendency of this claim, the Veteran had alleged posttraumatic stress disorder (PTSD) was causally related to in-service duties and in-service sexual assault. The Veteran had also alleged that depression was causally related to the conditions of her service-connected IBS.

The Veteran underwent a VA PTSD examination in February 2021. At that time, the examiner reported that the Veteran did not meet the DSM5 criteria for a diagnosis of PTSD. The examiner noted that the Veteran's claimed in-service stressors related to her duties could not be verified. Further, the examiner explained that the Veteran did not indicate any distress directly related to intrusive memories about a sexual assault.

The examiner instead diagnosed the Veteran with major depressive disorder. The examiner opined that major depressive disorder was not caused or aggravated by the Veteran's IBS. However, the examiner opined that the Veteran's chronic pain related to her service-connected back disability caused discomfort, trouble sleeping, frustration, irritation, and emotional distress.

Importantly, at the time of the February 2021 VA examination, the Veteran was not service connected for a back condition. However, as the Board referenced in the introduction to this decision, in its September 2021 rating decision the AOJ granted entitlement to service connection for a back condition. Thus, there is probative medical evidence supporting that the Veteran's current acquired psychiatric disorder, diagnosed as major depressive disorder, is causally related to her now service-connected back disability.

For the above reasons, the evidence is evenly balanced or approximately so with regard to whether her diagnosis of major depressive disorder is caused or related to her service-connected back disability. Therefore, the Board finds that service connection is warranted for an acquired psychiatric disability on a secondary basis. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310.

2. Entitlement to service connection for bilateral fallopian tube scars

In the January 2021 VA gynecological conditions examination, the examiner reported that the Veteran has bilateral fallopian tube scarring which is an internal fallopian tube issue. More specifically, the tubes are scarred, or stuck together, due to adhesions from the endometriosis in the Veteran's fallopian tubes.

2. Entitlement to service connection for bilateral fallopian tube scars

For the above reasons, the evidence is evenly balanced or approximately so with regard to whether her diagnosis of bilateral fallopian tube scars are caused or related to her service-connected endometriosis. Therefore, the Board finds that service connection is warranted for bilateral fallopian tube scars on a secondary basis. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310.

3. Entitlement to service connection for an eyesight disability, to include a retinal condition

The Veteran's contention is that she has a current eyesight disability that is causally related to intense eye strain from spending long hours looking at a computer screen during service. At the March 2020 Board hearing, the Veteran testified that she had been told by an eye doctor that her eye condition was such that her retinas were in danger of detaching.

As the Board explained in the August 2020 remand, refractive errors of vision are considered congenital defects and are not disabilities for which VA compensation may be awarded. 38 C.F.R. § 4.9. However, in this case, the nature of the Veteran's eyesight disability was not clear in the record and the Veteran had not been afforded a VA examination. As a result, the Board remanded the issue to obtain an examination in order to determine whether the Veteran's disability was one for which VA compensation could be awarded.

Following a February 2021 VA examination for eye conditions, the VA examiner explained that the Veteran had been diagnosed with "White Without Pressure," which was a retinal condition that, due to its lighter coloring, could resemble a retinal break. The condition had been diagnosed in 2007 and was asymptomatic. The examiner further explained that the condition was congenital in nature and tended to be benign. However, it can resemble a retinal detachment lesion and this was the reason the Veteran was being monitored on a yearly basis to make sure there were no retinal changes or progressions. However, the examiner noted, the condition did not cause blurring or focusing issues and was not caused by computer use.

Based on this, the evidence persuasively weighs against the Veteran having an eyesight condition for which VA compensation may be awarded. Aside from other refractive errors resulting in reduced visual acuity, the most probative evidence of record demonstrates a diagnosed condition of White Without Pressure and, as the February 2021 examiner explained, this condition is considered a congenital one. As a result, there is no current disability for VA compensation purposes and the benefit of the doubt doctrine, 38?U.S.C. §?5107(b), is therefore not for application as to this issue on appeal. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

4. Entitlement to service connection for bilateral hearing loss

The Veteran contends that she has a bilateral hearing loss disability that is causally related to in-service noise exposure.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Veteran underwent a VA hearing loss examination in January 2021. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 20 20 25 20 25

LEFT 25 25 25 20 20

Speech audiometry revealed speech recognition ability of 94 percent in the
, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Veteran underwent a VA hearing loss examination in January 2021. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 20 20 25 20 25

LEFT 25 25 25 20 20

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 98 percent in the left ear.

There are no other authorized audiological evaluations of record.

The Board finds that the record does not contain a current disability to establish that the first criterion to establish service connection has been met. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The most probative evidence of record, as discussed above, reflects the Veteran has not been shown to have a current disorder of hearing loss in the right or left ear for VA purposes at any time since separation from service. See 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a).

Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to its existence or etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran's assertion that others in her life complain that she talks too loudly is both competent and credible. In this case, the Veteran's statements do not rise to a level of competency to offer a probative opinion as to whether she has a hearing loss disability for VA purposes. Diagnosing this disability requires inquiry into internal physical processes that are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Additionally, audiological testing is needed to confirm a diagnosis of hearing loss for VA purposes. See 38 C.F.R. § 3.385. Upon clinical evaluations, no diagnosis of bilateral hearing loss for VA purposes has been provided at any time since separation from active service. As a result, her assertions are of less probative value than the medical evidence.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a hearing loss disability manifested to a compensable degree within one year of separation from service or any time thereafter. Rather, the evidence persuasively weighs against service connection for bilateral hearing loss on a direct basis and on a presumptive basis as a chronic disease. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim. Lynch, 21 F.4th at 776.

REASONS FOR REMAND

1. Entitlement to service connection for a right knee disability

2. Entitlement to service connection for a left knee disability

Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Here, the Veteran underwent a VA examination for knee and lower leg conditions in January 2021. The examiner opined that it was less likely than not the Veteran's left knee disability was caused by or incurred in service. By way of rationale, the examiner only stated that there were no symptoms or diagnosis of arthritis pain or symptoms in the left knee during
312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The examiner's explanation contained no adequate medical rationale. Rather, it was merely a recitation of evidence readily observable to any layperson. There was no explanation as to the significance of that evidence, nor was there discussion of whether the Veteran's documented in-service knee injury could result in her current left knee disability.

Further, the examiner did not provide a medical opinion regarding the Veteran's right knee. The Veteran has primarily offered the theory that her current right knee disability was caused or aggravated by overcompensation in using the joint as a result of the left knee disability. However, the Veteran has also alleged that she began to experience right knee pain before leaving service.

As the examiner failed to provide an adequate medical opinion regarding the left knee disability and failed to provide any medical opinion regarding the right knee disability, remand is necessary to afford the Veteran an addendum VA medical opinion for both right and left knee disabilities.

3. Entitlement to TDIU

During the March 2020 Board hearing, the Veteran raised the issue of a TDIU, testifying that she had stopped working due to her service-connected IBS. As noted in the August 2020 Board decision, the issue of entitlement to a TDIU was explicitly raised in connection with the pending appeal for a higher rating for service-connected IBS. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board finds that the date of claim for entitlement to a TDIU in this case was on July 21, 2016, and considers whether TDIU is warranted on a schedular basis pursuant to 38 C.F.R. § 4.16(a) at any time since July 21, 2016.

In light of the decision above regarding service connection, the Veteran is now service connected for an acquired psychiatric disorder and fallopian tube scars for which the AOJ has not yet assigned the disability ratings. As a result, review of the record is currently unclear as to whether there is evidence to warrant the assignment of a TDIU at any time during the appeal period since July 21, 2016.

The matters are REMANDED for the following actions:

1. Return the Veteran's claims file to the examiner who conducted the January 2021 VA examination for knee and lower leg conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner.

The examiner must opine as to the following:

(a.) Whether the Veteran's right knee disability, including diagnosis of arthritis, (i) began during active service, (ii) is related to an incident of service, or (iii) began within one year after discharge from active service, to include consideration of the Veteran's lay assertion that her current right knee disability was caused by her 2002 in-service injury while playing flag football.

(b.) Whether the Veteran's left knee disability, including diagnosis of arthritis, (i) began during active service, (ii) is related to an incident of service, or (iii) began within one year after discharge from active service.

(c.) Whether the Veteran's left knee disability was caused by or result from overcompensation due to the right knee disability.

(d.) Whether the Veteran's left knee disability was aggravated as a result of overcompensation due to the right knee disability.

The examiner should set forth all available examination findings, if any, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion.

2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner,
one year after discharge from active service.

(c.) Whether the Veteran's left knee disability was caused by or result from overcompensation due to the right knee disability.

(d.) Whether the Veteran's left knee disability was aggravated as a result of overcompensation due to the right knee disability.

3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board.

T. Blake Carter

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Giaquinto

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.

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