Citation Nr: 20081415 Decision Date: 12/29/20 Archive Date: 12/29/20 DOCKET NO. 17-16 706 DATE: December 29, 2020 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for hypertension is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for gastroesophageal reflux disorder (GERD), to include Barrett’s esophagus, is granted. Entitlement to an effective date earlier than September 24, 2003 for a separate rating for service-connected irritable bowel syndrome (IBS) is denied. Entitlement to an effective date earlier than September 24, 2003 for a separate rating for service-connected headaches is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded Entitlement to service connection for cytomegalovirus and transverse myelitis, claimed as spinal meningitis, is remanded. FINDINGS OF FACT 1. The Veteran’s sleep apnea is in part caused by his service-connected posttraumatic stress disorder (PTSD). 2. The Veteran’s erectile dysfunction is not caused by an in-service event, injury, or disease, and is not caused or aggravated by his service-connected PTSD. 3. The Veteran’s hypertension is caused by his service-connected PTSD. 4. The Veteran’s tinnitus began during his active duty service. 5. The Veteran’s GERD is related to in-service injury, event, or disease. 6. The Veteran was granted service connection for headaches and IBS due to undiagnosed illness in a March 2002 rating decision. He appealed that decision seeking a higher rating, and an October 2002 Statement of the Case (SOC) denied the claim. He again sought an appeal in December 2002, but then filed a withdrawal of that appeal in February 2003. 7. In September 2003, the Veteran filed a claim for increased rating for headaches and IBS due to undiagnosed illness. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, as caused by service-connected disability, have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for erectile dysfunction have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for hypertension, as caused by service-connected disability, have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for tinnitus have been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for GERD have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for an effective date earlier than September 24, 2003 for the separate grant of service connection for headache have not been satisfied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for an effective date earlier than September 24, 2003 for the separate grant of service connection for IBS have not been satisfied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1989 to October 1993, to include service in Southwest Asia. His awards and decorations include the Combat Action Ribbon, among others. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board recognizes that the issue of an increased rating for IBS was remanded by the Board in June 2019. As the development requested by the Board is still progressing, that issue will be addressed after such development has concluded and the RO returns the issue to the Board. In addition, the issue of entitlement to a higher rating for fecal incontinence was recently remanded to the Board by the United States Court of Appeals for Veterans Claims (Court). The Veteran has requested the Board wait a full 90 days before addressing that issue, which is not until February 2021. Service Connection 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 proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as hypertension, myelitis, and organic disease of the nervous system like hearing loss and tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Sleep Apnea The Veteran has a current sleep apnea disability. See August 2019 Private Disability Benefits Questionnaire (DBQ). Thus, the remaining question is whether the current sleep apnea disability is related to service or a service-connected disability. The Veteran submitted a private DBQ by Dr. D.I., received by VA in May 2017. In the DBQ, Dr. D.I. opined that the Veteran’s obstructive sleep apnea was due to his service-connected PTSD. The Veteran submitted medical literature titled, “Association of psychiatric disorders and sleep apnea in large cohort,” which discussed the significant association between psychiatric disorders and sleep apnea, and the growing evidence that shows how people with sleep apnea have impaired quality of life and impaired neurocognitive functioning. The Veteran submitted another private DBQ by Dr. D.I. in April 2018. Doctor D.I. opined that the Veteran’s sleep apnea was more likely than not due to the weight gained as a result of medication the Veteran takes for his mental health disorders, chronic pain disorders, and foot problems. Doctor D.I. noted that when reviewing the treatment as a whole, the Veteran’s service connected disabilities have at least as likely as not caused him to gain weight resulting in sleep apnea. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran’s obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran’s service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 32 Vet. App. at 306-7. The Veteran submitted an August 2019 private medical opinion by nurse practitioner C.P., who provided the opinion after a review of the record. Nurse practitioner C.P. noted that the Veteran had sleep disturbance and daytime hypersomnolence in 2007 and was diagnosed with sleep apnea in 2015. Nurse practitioner C.P. pointed to peer review resources that found that veterans with PTSD have higher rates of sleep apnea than the general population, and that treatment for sleep apnea in veterans with PTSD improved symptoms of PTSD. After reviewing peer research and various medical journals, nurse practitioner C.P. opined that the Veteran’s sleep apnea is more likely than not due to his service-connected PTSD. The Board finds the private opinions highly probative as they were made by a medical professional with consideration of the specific facts in this case and after review of medical literature. Upon review of the evidence, the Board finds the criteria for entitlement to service connection for sleep apnea, resulting from service-connected PTSD, are met. The record shows a current diagnosis and competent medical evidence indicating that the Veteran’s sleep apnea is proximately due to his PTSD, a disability that is service connected. For the above reasons, the probative evidence supports the claim and service connection is granted. 2. Erectile Dysfunction The Veteran has current erectile dysfunction. For example, at his April 2015 VA examination he was diagnosed with erectile dysfunction. Thus, the remaining question is whether the current erectile dysfunction is related to service or a service-connected disability. Service treatment records show no complaints, diagnosis, or treatment related to erectile dysfunction. During the July 1993 separation examination, evaluation of the genitourinary system was normal. There was no mention of erectile dysfunction on the corresponding report of medical history. At a VA examination in April 2015, the Veteran reported his erectile dysfunction began approximately 10 years prior. As the Veteran’s erectile dysfunction began many years after his separation from service and competent evidence does not show any relationship between the Veteran’s erectile dysfunction and an event, injury, or disease during service, service connection on a direct basis must be denied. 38 C.F.R. § 3.303. Notably, the Veteran’s assertion is that his erectile dysfunction is caused or aggravated by his service-connected PTSD. See 38 C.F.R. § 3.310. This assertion is addressed below. The Veteran presented for a VA examination in April 2015, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the Veteran’s erectile dysfunction was less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. In support of this conclusion, the examiner explained that the Veteran’s erectile dysfunction is not due to his PTSD because the Veteran had reported that his erectile dysfunction symptoms began 10 years ago. The examiner noted that the Veteran was not diagnosed with PTSD until April 2006 and was diagnosed in conjunction with other mental health issues including somatization disorder, depression, anxiety, and personality disorder. The examiner indicated that the Veteran’s symptoms of not getting nocturnal/early morning erections makes the etiology of his erectile dysfunction less likely related to psychological issues and more consistent with physical issues. Further, the examiner noted that in June 2008, the Veteran underwent consultation with a urologist who diagnosed him with erectile dysfunction and prostatic hyperplasia which makes benign prostatic hyperplasia the likely etiology of his erectile dysfunction. In further support of the opinion, the examiner noted that the effectiveness of Viagra on the condition pointed to a physical rather than psychological etiology. The Veteran submitted a private DBQ by Dr. D.I., received by VA in May 2017. As part of the DBQ, Dr. D.I. opined that the Veteran had worsening erectile dysfunction related to his service-connected PTSD. Submitted with the DBQ was a March 2015 VA article titled, “Sexual dysfunction a common problem in Veterans with PTSD.” The article pointed to a study published in the Journal of Sexual Medicine that found that veterans with PTSD were significantly more likely than their civilian counterparts to report erectile dysfunction or other sexual problems. The Veteran submitted another private DBQ by Dr. D.I. in April 2018. Doctor D.I. opined that the Veteran has erectile dysfunction and also suffers from PTSD. Dr. D.I. referenced the connection between the erectile dysfunction and PTSD as noted in the VA article cited above. The Veteran submitted an August 2019 private medical opinion by nurse practitioner C.P., who reviewed the record as part of the opinion. In the opinion, the nurse practitioner noted that after the Veteran was diagnosed in 1998 with depression and placed on medication, he was diagnosed with erectile dysfunction in December 2000. In early 2006, the Veteran stopped taking the medication for about 2 months, but his erectile dysfunction symptoms continued. When he was placed with different medications, his erectile dysfunction continued. The Veteran reported that even after taking medication for his erectile dysfunction, he continued to have issues. After reviewing peer review research and various medical journals, nurse practitioner C.P. opined that the Veteran’s erectile dysfunction was at least as likely as not due to his service-connected PTSD. In medical literature referenced as part of the opinion, it was noted that combat veterans with PTSD had significantly higher rate of sexual dysfunction that those without PTSD. Nurse practitioner C.P. also pointed to literature that found that PTSD and hypertension were common risk factors for erectile dysfunction in both older and younger Iraq and Afghanistan veterans. In this case there are medical opinions both for and against the claim. The Board finds the private opinions in favor of the claim are afforded lesser probative weight as they essentially relate the Veteran’s erectile dysfunction to his PTSD because medical literature shows that people with PTSD often have sexual dysfunction. It is noted that correlation and causation are two separate things and these opinions do not fully explain why this Veteran’s erectile dysfunction is related to his PTSD. On the other hand, the VA opinion adverse to the claim is afforded high probative value as it is specific to this Veteran’s situation and provides a rationale for the conclusions reached, explaining that the erectile dysfunction is more likely physical in nature than psychological. That is, it was caused or aggravated by physical factors, and not psychological factors. For example, the examiner addressed the Veteran’s actual complaints, such as not getting nocturnal/early morning erections, found significant that the Veteran was diagnosed with prostatic hyperplasia which the examiner thought to be the likely etiology of the erectile dysfunction, and noted the effectiveness of Viagra on the condition suggested a physical etiology. The examiner’s opinion is not counter to the medical articles suggesting that veterans with PTSD often have sexual dysfunction. Instead, the examiner has explained why this particular Veteran with PTSD also has sexual dysfunction. The private examiners did not account for the diagnosis of prostatic hyperplasia and instead looked at the situation more generally; that is, those with PTSD often have sexual dysfunction, rather than looking at this Veteran’s particular circumstances. The VA opinion adverse to the claim is the most probative evidence regarding whether the Veteran’s erectile dysfunction is caused or aggravated by his PTSD. Hence, the preponderance of the evidence is against the claim and service connection for erectile dysfunction is denied. 3. Hypertension The Veteran has current hypertension. See August 2019 Private DBQ. Thus, the remaining question is whether the current hypertension disability is related to service or a service-connected disability. The Veteran submitted an April 2016 private DBQ by Dr. D.I. As part of the DBQ, Dr. D.I. opined that the Veteran’s hypertension was related to his PTSD which exacerbated his blood pressure. The Veteran submitted another private DBQ by Dr. D.I. in April 2018, who again opined that the Veteran’s hypertension was related to his PTSD. Dr. D.I. noted that PTSD can cause increased risk for coronary artery disease based on a review of medical literature. In one such article titled, “Cardiovascular disease risk factors in patients with posttraumatic stress disorder (PTSD): a narrative review,” it was noted that among veterans treated at outpatient clinics, those with PTSD had worse indicators of endothelial function which might have contributed to the early onset and progression of cardiovascular disease in the veteran population. In another article titled, “Risk for incident hypertension associated with posttraumatic stress disorder in military veterans and the effect of posttraumatic stress disorder treatment,” it was noted that Veterans with a diagnosis of PTSD that is left untreated were at a greater risk of getting hypertension. The Veteran submitted an August 2019 private medical opinion by nurse practitioner C.P., who reviewed the record as part of the opinion. In the opinion, nurse practitioner C.P. noted that the Veteran was diagnosed with hypertension in 2010 and his PTSD was diagnosed in 2006. Nurse practitioner C.P. indicated that the Veteran was reevaluated in 2013 and it was determined then that his hypertension was not treated by medication. Nurse practitioner C.P. referenced an article that found that heart disease was higher in persons with PTSD than those with only major depressive disorder. Overall, after reviewing the pertinent research and various medical journals, nurse practitioner C.P. opined that the Veteran’s hypertension was at least as likely as not the result of his service-connected PTSD. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current hypertension is caused by his service-connected PTSD. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Tinnitus Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). Tinnitus is the type of disability that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran has a current tinnitus disability. For instance, during the February 2016 VA examination he was diagnosed with recurrent tinnitus. Thus, the remaining question is whether the Veteran’s tinnitus disability is related to service. The Veteran reported that his tinnitus began in service as a result of exposure to noise from machine guns. See February 2016 VA Examination Report. Service personnel records reveal that the Veteran’s military occupational specialty (MOS) was that of machine gunner. The Veteran is also a combat veteran and a recipient of the Combat Action Ribbon. The Board has no reason to doubt the Veteran’s reports of experiencing tinnitus during service and presently and finds these statements credible. As tinnitus, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 5. GERD The Veteran has current GERD. See February 2014, September 2019 Private DBQ. He was also diagnosed with Barrett’s esophagitis. See February 2016 VA Examination Report, September 2019 Private DBQ. Thus, the remaining question is whether the current GERD, to include Barrett’s esophagitis, is related to service or a service-connected disability. Service treatment records show that in December 1990, the Veteran complained of abdominal cramps, diarrhea, vomiting, fever, and chills. During the July 1993 separation examination, evaluation of the Veteran was normal. In a corresponding report of medical history, the Veteran specifically denied having had frequent indigestion, and stomach or intestinal trouble. In a November 1995 private treatment by Dr. R.S., the Veteran was treated for persistent reflux esophagitis with biopsy showing Barrett’s esophagus. Doctor R.S. noted that the Veteran’s problems began approximately 3 years ago when he was still in service. Dr. R.S. noted that the Veteran developed persistent reflux and chest pain since his discharge. In May 2016, a VA medical opinion was provided by an examiner who also reviewed the pertinent medical history and interviewed the Veteran. The examiner noted that GERD and Barrett’s esophagus are conditions with clear etiologies and diagnosis. GERD is due to mechanical pressures in the abdomen, including weight gain/obesity, causing worsening of psychological reflux. The examiner noted that Barrett’s esophagus is sometimes seen in instances of severe reflux, with the esophagus tissue becoming inflamed/altered from the ongoing acid presence. The examiner opined that with local factors and mechanical forces causing GERD and esophagitis, it is less likely as not that the conditions would be due to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner noted that up to this point, GERD has not been found to be due to smoke or other chemical toxic exposure. The Veteran submitted a September 2019 private medical opinion by nurse practitioner C.P, who review the record in providing the opinion. In the opinion, nurse practitioner C.P. noted that the Veteran was treated for GERD symptoms in service and formally diagnosed in or around October 1995, a diagnosis well documented in the Veteran’s record. He was also diagnosed with Barrett’s esophagus around the same time. Nurse practitioner C.P. noted that the Veteran’s symptoms include daily chronic epigastric distress with dysphagia, pyrosis, reflux and sleep disturbance, accompanied by substernal arm and shoulder pain, productive of considerable impairment of health. Nurse practitioner C.P. opined that the Veteran’s diagnosis of GERD is related to his service-connected irritable bowel syndrome. Further, after a review of pertinent peer review research and various medical journals, nurse practitioner C.P. also opined that the Veteran’s GERD and Barrett’s esophagus was at least as likely as not, manifested and aggravated by his military service. Based on a review of the evidence of record, the Board finds that the probative evidence of record supports entitlement to service connection for GERD, to include Barrett’s esophagus. Here, the medical evidence indicates that the Veteran experienced some GERD symptoms while in service, and there are medical opinions linking the current disabilities to service. The medical opinion provided by nurse practitioner C.P. was given after consideration of peer research, medical journals, and a review of the record. The Board acknowledges the May 2016 VA medical opinion, but gives it less weight as it is focused on exposure events in the Persian Gulf and not service generally. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for GERD, to include Barrett’s esophagus, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Effective Date By way of history, the Veteran was initially granted service connection for IBS and headaches, among other symptoms, as due to undiagnosed illness in a March 2002 rating decision. After initially appealing the rating assigned, the Veteran subsequently withdrew his appeal for a higher rating in February 2003. In September 2003, the Veteran sought a higher rating for his service-connected IBS and headaches due to undiagnosed illness. In a July 2005 rating decision, higher ratings were denied, and the Veteran appealed the decision. After a January 2015 Board decision continued to deny higher and separate ratings, the Veteran appealed the matter to the Court. In a November 2016 Memorandum Decision, the Court vacated the January 2015 Board decision for not addressing whether separate ratings were warranted for IBS and headaches. In July 2017, the Board remanded the issues to schedule the Veteran for a hearing before the Board, which was subsequently held in October 2017. In a January 2018 decision, the Board granted separate ratings for IBS and headaches. In a February 2018 rating decision, the RO instituted the Board’s decision by granting separate ratings for IBS and headaches with an effective date of January 31, 2006. Subsequently, in a November 2018 rating decision, the RO granted an earlier effective date of September 24, 2003. Thus, the remaining question before the Board is whether an effective date earlier than September 24, 2003 is warranted for the grants of separate ratings for service-connected IBS and headaches. The Veteran seeks an earlier effective date of April 13, 2000 for the separate grant of service connection for headaches and IBS, arguing that the March 2002 rating decision committed clear and unmistakable error (CUE) for improperly rating both disabilities under fibromyalgia. See July 2019 Correspondence. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 C.F.R. §§ 3.104, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved CUE. 38 C.F.R. § 3.105. The Court has established a three-pronged test before CUE may be established: either (1) the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be “undebatable” and of the sort “which had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). In this case, the Veteran on April 13, 2000 filed a claim for Gulf War Syndrome, among other disabilities. In a March 2002 rating decision, service connection for chest pain, joint pain, muscle ache, fatigue, sleep disturbance, headaches, irritable bowel syndrome and depression due to undiagnosed illness was granted. Separate service connection for headaches and lower abdominal distress with bloating and gas, both as due to undiagnosed illness, was denied. He appealed the rating decision, and in an October 2002 Statement of the Case (SOC), separate service connection for headaches and lower abdominal distress continued to be denied, as well as higher rating for undiagnosed illnesses. In December 2002, the Veteran appealed that decision. However, in a February 2003 correspondence, the Veteran withdrew his appeals after agreeing to a 70 percent overall rating. Thus, the March 2002 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.29, 19.52 (2002). The Veteran later filed a claim for increase rating for his chest pain, joint pain, muscle ache, fatigue, sleep disturbance, headaches, and irritable bowel syndrome due to undiagnosed illness on September 24, 2003, as well as a claim of service connection for fibromyalgia. There was no earlier communication indicating an intent to file a claim between the February 2003 withdrawal to September 24, 2003 claim. Thus, the earliest effective date for the grants of separate ratings for headache and IBS cannot be earlier than the date of receipt of claim on September 24, 2003 absent CUE in a previous decision. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105(a), 3.400. As part of his CUE argument, the Veteran asserts that the November 2016 Court decision found that the March 2002 rating decision improperly rated the Veteran’s headache and IBS by analogy under Diagnostic Code 5025 for fibromyalgia. See July 2019 Correspondence. However, the Veteran appears to incorrectly interpret the November 2016 Court decision. In that decision, the Court found that the Board failed to address whether separate ratings were warranted for the issue of headaches and IBS, not that the March 2002 rating decision nor the rating assigned was improper. At the time of the March 2002 rating decision, Diagnostic Code 5025 was used for rating fibromyalgia “With widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms.” At the time, the RO determined this was the best Diagnostic Code for rating the service-connected undiagnosed illness without pyramiding. See 38 C.F.R. § 4.71a; see also 38 C.F.R. § 4.14 (2001) (the evaluation of the same disability under various diagnoses is to be avoided). As this diagnostic code contemplated both the IBS and headaches, as well as some of the other service-connected symptoms, it was not error for the RO to assign the rating under this code. Notably, disabilities can be rated by analogy. 38 C.F.R. § 4.20 (2001). The Veteran’s agent also argues that in 2002 a diagnosed condition could not be rated with an undiagnosed condition. In support of this proposition, he cites to an opinion of VA’s General Counsel. See VAOGCPREC 8-98; see also July 2019 Board Hearing Tr. at 31. The Board is bound by opinions of VA’s General Counsel. See 38 C.F.R. § 20.105. However, the opinion referenced by the Veteran’s agent does not preclude rating an undiagnosed condition with a diagnosed condition. Instead, that opinion focuses on what types of disabilities can be presumptively service connected based on 38 C.F.R. § 3.317. The holding in no way addresses how disabilities, once service connected, are rated. In sum, at the time of the March 2002 rating decision the correct facts were before the adjudicator and the RO did not incorrectly apply the law. Revision of that decision based on CUE is not warranted. Moreover, the evidence of record does not support an earlier effective date for separate ratings for headache and IBS. REASONS FOR REMAND While the Board regrets additional delay, a remand is necessary for the following issues prior to adjudication. 1. Bilateral Hearing Loss The Board finds the Veteran was exposed to significant noise during service based his MOS as a machine gunner and his participation in combat activity. As part of his February 2016 VA examination, the examiner noted that the Veteran had fired weapons in service while wearing hearing protection. In response, the Veteran argued that the examiner inaccurately indicated that because the Veteran used ear protection at gun ranges while a civilian, that he in fact used similar ear protection in service. See April 2018 Form 9. The Veteran explained that using ear plugs on the rifle range was different from being in war and shooting a machine gun in the field. See July 2018 DRO Hearing Tr. at 31. The Veteran noted that while he has had ringing in his ear since service, he has worked in noise free environment after he was discharged. See May 2018 Correspondence. Based on the foregoing, the Board finds that the Veteran should be afforded another VA audiological examination in order to address his statements and determine if he now has a hearing loss disability in the right ear. 2. Cytomegalovirus and Transverse Myelitis The Veteran was diagnosed with transverse myelitis as due to cytomegalovirus infection. See May 2016 VA Examination Report. As part of the May 2016 VA examination, the examiner addressed direct service connection. However, the Veteran argued that the examiner did not consider whether the Veteran’s transverse myelitis was related to his service-connected West Nile Virus. See July 2019 Hearing Tr. at 42, July 2019 Correspondence. The Veteran submitted a literature titled, “Transverse myelitis fact sheet,” which indicated that viral infections such as West Nile virus was a cause for transverse myelitis. See January 2019 Correspondence. Thus, as there appears to be indication of secondary service connection, the Board finds that an addendum medical opinion should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his bilateral hearing loss and cytomegalovirus/transverse myelitis claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss disability arose during service or is otherwise related to service, to include as due to noise exposure from being a machine gunner and participating in combat. Noise exposure has been conceded and the Veteran indicates he did not always wear hearing protection when firing his weapon during service. The examiner should explain why any current bilateral hearing loss is or is not merely a delayed response to in-service noise exposure. The examiner should explain the reasoning for any opinion provided, to include the medical significance of any findings, as adjudicators are precluded from making medical findings. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s transverse myelitis was (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected West Nile virus. In offering the opinion, the examiner is asked to consider medical literature titled, “Transverse myelitis fact sheet,” which indicated that viral infections such as West Nile virus was a cause for transverse myelitis. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.