Citation Nr: 1513944 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 12-27 315A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for residuals of a head injury. 5. Entitlement to service connection for a lung condition, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. 6. Entitlement to service connection for lymphoma, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from August 1976 to March 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the VA Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a Board videoconference hearing in June 2014 and a copy of that transcript is of record. The Board notes that the Veteran appointed an attorney to represent him in August 2011. The Veteran appointed the Georgia Department of Veterans Service to represent him in November 2014. The attorney subsequently withdrew as representative in December 2014 and the Board determined the withdrawal to be in good cause in February 2015. See 38 C.F.R. § 14.631(c) (2014). The Board notes also that the Veteran has claimed he has a psychiatric disorder related to service. Based on the Veteran's contentions and diagnoses of record, the claim has been recharacterized as seen on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In January 2015, additional VA treatment records were added to the Veteran's file. The Board notes that a supplemental statement of the case was not subsequently issued. However, the Board finds that such documents are essentially duplicative of the evidence already contained in the claims file. In this regard, such records, like those already considered by the AOJ, fail to show a diagnosis of a low back disability. Therefore, the Board may proceed with a decision regarding this issue without prejudice to the Veteran. The issues of entitlement to service connection for bilateral hearing loss and tinnitus have been raised by the record in an August 2009 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of entitlement to service connection for an acquired psychiatric disability, a neck disability, residuals of a head injury, a lung condition, and lymphoma are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current diagnosis of a low back disability. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist the Veteran in substantiating his claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Here, the notice requirements were accomplished by a letter sent in February 2010, prior to the initial rating decision. The letter also included notice of the type of evidence necessary to establish a disability rating or effective date for the issues under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). The Board acknowledges that the Veteran's service treatment records are almost entirely unreadable. A June 2010 Formal Finding of Unavailability noted that the Veteran's service treatment records were received in September 2009 on microfiche and that the microfiche and prints were unreadable. Although a review of the available service treatment records show that the Veteran received some in-service treatment for low back pain, the Veteran does not have current diagnoses of a low back disability. Therefore, the Board finds that an additional remand to attempt to obtain readable service treatment records is not necessary as they would not provide evidence of a current disability. The Board also notes that the Veteran has not been provided a VA examination in regards to his claim for a low back disability. However, a VA examination is not needed in every case. In McLendon v. Nicholson the Court held that the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. In this case, as will be discussed further below, there is no credible evidence of record that the Veteran has a current diagnosis of a low back disability, and no indication that any current disability is due to service. Statements made to examiners over the years do not credibly show that the Veteran has had persistent and recurrent symptoms of back pain since service, and the medical evidence of record shows that no chronic diagnosis has been clinically attributed to the Veteran's episodic bouts of pain. Thus, a VA opinion is not necessary to decide the claim. As previously noted, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned in June 2014. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here the undersigned specifically noted the issues on appeal, explained why the claims had been previously denied, clarified the Veteran's contentions, and discussed the submission of additional evidence. As such, the Board finds that the undersigned complied with the aforementioned hearing duties. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis The Veteran contends that he has a low back disability that is related to his military service. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board again notes that the Veteran's service treatment records are mostly unreadable. However, it does appear that the Veteran received treatment for low back pain twice in 1981. Post-service private treatment records dated August 2009 to February 2013 are absent of any complaints, treatment, or diagnosis of a low back disability. VA treatment records dated October 2000 to January 2015 show that in June 2010 the Veteran complained of back pain for serveral days after a "pop" when picking up something. No disability was diagnosed. A December 2011 treatment record shows that the Veteran reported back pain from lifting a heavy laundry bag one week prior and that he was in bed for two days with spasms. The Veteran reported that he had pain in his left lower back. Again, no disability was diagnosed. An October 2013 treatment record shows that the Veteran reported his lower back pain continued to bother him. Again, no disability was diagnosed. Additionally the Veteran's VA Active Problems List does not include a diagnosis of a low back disability. Based on the above, the Board finds that the most competent and credible evidence is against a finding that the Veteran has a current diagnosis of a low back disability. Although the Veteran was treated for back pain during the pendency of the appeal, no objective diagnosis was provided. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Moreover, there is no credible evidence of back pain ever since service. Rather, VA treatment records show the Veteran reported on back pain in connection with post-service events. The only evidence of record that the Veteran has a low back disability is the Veteran's own assertions lay assertions. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of a low back disability, falls outside the realm of common knowledge of a lay person. In this regard, the diagnosis of a back disability is a medical subject concerning physical processes extending beyond immediately observable symptoms. Therefore, while the Veteran can competently report his symptoms, any opinion regarding whether he has a currently diagnosed disability requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that he has a currently diagnosed low back disability. The Board notes that the Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a low back disability is denied. REMAND Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder that is related to his military service. In summary, the Veteran has reported that while stationed on the USS Belleau Wood, a fellow serviceman, Lance Corporal "Frost", was lost during a mission near Lebanon in the Indian Ocean in approximately 1979 and the Veteran was tasked with, and found his body. See Board Hearing Transcript pgs. 12-13, 30-31. The Veteran also reported seeing another service member decapitated on the runway in approximately 1979 or 1980 because of faulty equipment or pilot error while he was attached to HMH-262. Id pgs. 15, 31. The Veteran also reported that in approximately 1977 he was physically assaulted while stationed at Camp Lejeune with the 8th Engineer, Second Battalion, Bulk Fuel, by three other service-men who were later discharged from the Marines for their actions. Id. 17-19, 31. The Veteran also reported that he gave a deposition and appeared at their trial. Id. Based on the Veteran's reports, the Board finds that on remand, all necessary steps should be taken to verify the Veteran's reported in-service stressors. Additionally, as the Veteran's claim is partially based on an in-service personal assault, the Board finds that he should be provided with a personal assault stressor notice letter pursuant to 38 C.F.R. § 3.304(f)(5) (2014). Furthermore, the Veteran's VA treatment records show that he was diagnosed with dysthymia in October 2011. Additionally, at the Board hearing, the Veteran's representative asserted that the Veteran receives medication for anxiety, depression, and PTSD. See Board hearing transcript pg. 6. As it is unclear what acquired psychiatric disorders the Veteran is currently diagnosed with and as it is well established that a medical opinion may be used to corroborate a personal-assault stressor, the Board finds that on remand the Veteran should be afforded a VA examination to determine the nature and etiology of any currently diagnosed psychiatric disorder. See Menegassi v. Shinseki, 638 F.3d 1379, 1381 (Fed. Cir. 2011). Neck and Head Injury The Veteran contends that his neck condition and residuals of a head injury are due to the above mentioned assault. See Board Hearing Transcript pg. 24. The Veteran also contends that his neck condition and residuals of a head injury are due to an incident that occurred while training in Hawaii in approximately 1979 in which a helicopter he was a passenger in "slammed to the ground." Id. pgs. 21-22. The Board notes that the Veteran's VA Active Problems list shows that the Veteran is currently diagnosed with intervertebral disc disorder with myelopathy, cervical region. Additionally, at the Board hearing, the Veteran reported that he has had ongoing symptoms since service, including continued symptoms of dizziness and headaches. The Veteran also reported that he sought treatment after both incidences while in service. Based on the above, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his neck disability and any residuals of a head injury. Lung Condition and Lymphoma The Veteran has asserted that he has a lung condition and lymphoma that is related to exposure to jet fuels and exhaust from trucks. See Board Hearing Transcript pg. 10. The Veteran also contends that his lung condition and Lymphoma are due to exposure while stationed at Camp Lejeune. Id. pg. 25 The Board notes that VA policies have established that veterans who served at Camp Lejeune were potentially exposed to contaminants present in the base water supply prior to 1987. See Veterans Benefits Administration (VBA) Training Letter 10-03 (April 26, 2010). Evidence development for disability claims based on water contaminant exposure at Camp Lejeune requires obtaining verification of actual service at Camp Lejeune and as much detail as possible about that service. It also requires verifying, with medical evidence obtained through a VA medical examination or other authoritative medical source, whether a claimed current disease or disability is at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune. The Board finds that the Veteran's military occupational specialty of bulk fuel man to be consistent with exposure to jet fuels and exhaust from trucks. See 38 U.S.C.A. § 1154(b). The Board also notes that the Veteran's personnel records show that the Veteran was stationed at Camp Lejeune, North Carolina, from 1976 to 1979. Additionally, the Veteran's VA treatment records show that in December 2009 the Veteran was underwent a bronchoscopy that was non diagnostic. In January 2010, the Veteran was treated for a lesion in the left chest. The differential diagnosis was "lymphoma vs. bronchogenic carcinoma vs. atypical infection (TB or fungus)". The Board notes that the Veteran's current VA Active Problems list includes Hodgkin's disease of lymph nodes of the head, face and/or neck. Based on the above, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed lung condition and lymphoma. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should furnish to the Veteran a letter informing him that evidence from sources other than his service records may corroborate his account of in service personal assault. 2. All necessary steps should be taken to verify the Veteran's reported in-service stressors to include; (1) the search and recovery of Lance Corporal "Frost" during a mission near Lebanon in the Indian Ocean in approximately 1979 while stationed aboard the USS Belleau Wood; (2) the decapitation of a fellow service-member on the runway in approximately 1979 or 1980 because of faulty equipment or pilot error while attached to HMH-262; (3) a physical assault that occurred in approximately 1977 while stationed at Camp Lejeune with the 8th Engineer, Second Battalion, Bulk Fuel, by three other service-men who were later discharged from the Marines for their actions. The Board advises that the Veteran also reported that he gave a deposition and appeared at their trial. All attempts to verify the stressors should be documented in the claims file. 3. Whether or not the Veteran's reported stressors can be verified or not, schedule the Veteran for VA examination to determine the nature and etiology of his psychiatric disorder(s). The Veteran's claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. The examiner should diagnose all current psychiatric disorders. If there are different diagnoses than those of record, to include dysthymia (October 2011 VA treatment record), the examiner should attempt to reconcile the diagnoses. If, and only if, PTSD is diagnosed the examiner is asked to opine as to the following; a. Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran displayed any behavior in service that would be consistent with his claim of being assaulted during his active service or whether it is at least as likely as not (i.e., 50 percent or greater probability) in the examiner's medical judgment that the personal assaults occurred. b. If the examiner is of the opinion that a personal assault occurred, the examiner should then state whether it is at least as likely as not (i.e., 50 percent or greater probability) the Veteran's PTSD is a result of such an assault. c. If the Veteran's other reported in-service stressors are verified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is related to his verified in-service stressors. In regards to any psychiatric diagnoses other than PTSD (e.g. dysthymia, etc), the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran's currently diagnosed psychiatric disorders are in any way related to the Veteran's active military service. The examiner is requested to provide a thorough rationale for any opinion provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 4. Schedule the Veteran for VA examination to determine the nature and etiology of neck disability and claimed residuals of a head injury. The Veteran's claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. The examiner should diagnose all current neck disabilities and residuals of a head injury. If there are different diagnoses than those of record, to include intervertebral disc disorder with myelopathy, cervical region (VA Active Problems list), the examiner should attempt to reconcile the diagnoses. Assuming that the Veteran's reports of the in-service assault and helicopter incident are credible for purposes of the exam, the examiner should opine whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's currently diagnosed neck disability and/or residuals of a head injury are consistent with the nature of the reported in-service injuries. The examiner is requested to provide a thorough rationale for any opinion provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 5. Schedule the Veteran for VA examination to determine the nature and etiology of his claimed lung condition and lymphoma. The Veteran's claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. The examiner should diagnose all lung and lymphoma disabilities. If there are different diagnoses than those of record, to include lymphoma vs. bronchogenic carcinoma vs. atypical infection (TB or fungus)" (January 2010 VA treatment record) or Hodgkin's disease of lymph nodes of the head, face and/or neck (VA Active Problems list) the examiner should attempt to reconcile the diagnoses. The examiner should opine whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's currently diagnosed lung and/or lymphoma condition is related to the Veteran's exposure to contaminated water while serving at Camp Lejeune and/or exposure to jet fuel and exhaust from trucks? In so opining, the examiner should be notified that the water supply at Camp Lejeune, North Carolina, was contaminated between 1957 and 1987 with a number of chemical compounds that have been associated by scientific organizations with the potential for developing certain diseases. Additionally, information on how long the Veteran served at Camp Lejeune, and whether the Veteran lived on or off base, should be considered, if available. The examiner is requested to provide a thorough rationale for any opinion provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 6. After completing the above, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs