Citation Nr: 1805324 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-16 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as secondary to contaminated water at Camp Lejeune. 2. Entitlement to an effective date prior to January 23, 2014, for the awards of service connection for bilateral hearing loss and tinnitus. 3. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. 4. Entitlement to an initial compensable evaluation for bilateral hearing loss. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for headaches. 7. Entitlement to service connection for gastroesophageal reflux disease (GERD). 8. Entitlement to service connection for a lumbar spine disorder. 9. Entitlement to service connection for a bilateral shoulder disorder. 10. Entitlement to service connection for a bilateral hip disorder. 11. Entitlement to service connection for bilateral leg disorders, to include bilateral knee and tibia disorders. 12. Entitlement to service connection for a psychiatric disorder, to include depression and to also include as secondary to service-connected disabilities and claimed disorders. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from February 1976 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2015 and June 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman based on interpretation of law of general application reflected in recent amendments to VA regulations. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. 82 Fed. Reg. 4173 (January 13, 2017). The undersigned is granting the motion and advancing the appeal on the docket based upon the interpretation of law of general application affecting claims for benefits related to exposure to contaminated water at Camp Lejeune. 38 C.F.R. § 20.900(c). The issues of service connection for hypertension, headaches, GERD, psychiatric, lumbar spine, bilateral hip, bilateral knee/tibia, and bilateral shoulder disorders, as well as the increased evaluation claim for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran had service of at least 30 days at Camp Lejeune, at minimum, during the period from February to December 1980. 2. Subsequent to service the Veteran was diagnosed with chronic lymphocytic leukemia, which manifested to a degree of 10 percent or more at a time after service. 3. VA received the Veteran's initial claim for compensation benefits-to include claims of service connection for bilateral hearing loss and tinnitus-on January 23, 2014; there is no evidence of a claim for service connection for those disabilities received by VA prior to that date. 4. The Veteran is currently assigned a 10 percent evaluation for his tinnitus under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic lymphocytic leukemia have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017); 82 Fed. Reg. 4173-4185 (January 13, 2017). 2. The criteria for establishing an effective date prior to January 23, 2014, for the awards of service connection for bilateral hearing loss and tinnitus have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria establishing an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for CLL Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain diseases may be presumed to have been incurred or aggravated during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines "contaminants in the water supply" as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309 (f), (i.e., kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The rulemaking applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 4173-4185 (January 13, 2017); VA M-21-1 Adjudication Manual, Part IV, Subpart ii, Chapter 2, Section C.6.a. (revised March 14, 2017). The Veteran contends that he developed his CLL as a result of his exposure to contaminants in the water supply while stationed at the U.S. Marine Base at Camp Lejeune. The Veteran's service personnel records document that from at least February 1980 through December 1980, the Veteran was assigned to Camp Lejeune, North Carolina; the Board therefore finds that he has more than 30 days of service at that facility. Furthermore, a review of the Veteran's post-service treatment records demonstrate that he was diagnosed with CLL in 2012. Consequently, entitlement to service connection for CLL is warranted. At a point after separation from service the Veteran was diagnosed with CLL (an adult leukemia), an enumerated disease identified as presumptively due to contaminated water at Camp Lejeune. Finally, the Veteran had service of at least 30 days at Camp Lejeune during the enumerated period. Therefore, service connection for CLL due to exposure to contaminated water at Camp Lejeune is granted. Earlier Effective Date for Awards of Service Connection for Bilateral Hearing Loss and Tinnitus VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Generally, except as otherwise provided, 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 date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). After review of the claims file, the Board finds that the undisputed facts in this case demonstrate that the Veteran submitted his initial claim for compensation benefits-to include, claims of service connection for bilateral hearing loss and tinnitus-to his previous representative, a Veterans Service Organization, which was received on January 21, 2014, as shown by the date stamp on the VA Form 21-526EZ. The Veteran's representative at that time, however, apparently did not submit the claim to the AOJ until January 23, 2014, as that is the date stamp by the VARO on that Form. There is no evidence of a claim for service connection for those disabilities received by VA prior to that date. The Veteran and his current representative have offered no dispute of these facts, nor have they otherwise provided any argument, assertion or contention with regards to the earlier effective date issues on appeal at this time. Accordingly, as the facts are not in dispute and it is clear that the date of receipt of the claims for service connection for bilateral hearing loss and tinnitus by VA was January 23, 2014, the Board must deny the Veteran's appeal as to an earlier effective date for the awards of service connection for bilateral hearing loss and tinnitus. The earliest possible effective date for those awards have been assigned in this case based on the undisputed facts and evidence of record. See 38 C.F.R. § 3.400. The Board has considered the applicability of the benefit of the doubt doctrine, although that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102. Increased Evaluation for Tinnitus Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). As will be explained below, there is no legal basis upon which the benefits may be awarded and the Veteran's claim must, regrettably, be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of VCAA have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). On appeal, the Veteran asserts that he should have an increased evaluation for his service-connected tinnitus. The Veteran's tinnitus has been assigned a 10 percent evaluation under Diagnostic Code 6260 throughout the appeal period. In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran's service-connected tinnitus is currently evaluated as 10 percent disabling, which is the maximum evaluation available under Diagnostic Code 6260. See 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, limits a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral); VAOPGCPREC 2-2003 (Diagnostic Code 6260 authorizes a single schedular 10 percent disability rating for tinnitus, regardless of whether the tinnitus is perceived as unilateral or bilateral). Where, as here, there is a lack of entitlement under the law, the claim for a schedular evaluation in excess of 10 percent for tinnitus, to include separate bilateral schedular ratings, is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for chronic lymphocytic leukemia is granted. An effective date prior to January 23, 2014, for the awards of service connection for bilateral hearing loss and tinnitus, is denied. An initial evaluation in excess of 10 percent for tinnitus is denied. REMAND With regards to the remaining issues on appeal, the Board reflects that VA treatment records from the Muskogee VA Medical Center are of record from November 2005 through February 2006, and from December 2014 through January 2016. It thus appears to the Board that there are outstanding VA treatment records, at minimum, for the intervening period from February 2006 through December 2014. A remand is therefore necessary in order to obtain any outstanding VA or private treatment records in this case. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board reflects that the Veteran's service treatment records document numerous instances of headaches during military service, as well as complaints of lumbar spine, hip, and knee pain. In addition, the Veteran is noted to have a right tibia fracture during a periodic examination, and to have fallen down some stairs in June 1982. The Veteran has only been afforded an examination as to his left hip and lumbar spine disorders as of this decision. In light of the above evidence in the service treatment records, the Board finds that the low threshold for obtaining VA examinations of the Veteran's right hip, bilateral knees/tibia, and headaches is warranted in this case. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Moreover, as the Veteran has claimed depression and given the award of service connection for leukemia in this case, it further appears that obtaining a VA psychiatric examination is appropriate at this juncture in order to explore any secondary service connection theory of entitlement as a result of any of his service-connected disabilities or claimed disorders. See Id. With regards to the lumbar spine and left hip disorders, the June 2016 VA examiner diagnosed the Veteran with arthritis of his lumbar spine and left hip. During the examination, the Veteran reported that he had lumbar spine pain for 30 years which had progressively worsened. The Veteran also reported onset of his left hip pain 5-6 years prior to the examination. The VA examiner opined that neither of those disorders were related to military service. Respecting the lumbar spine, the examiner merely noted that there is no notation of any recurrent back pain on separation examination in September 1986. With regards to the left hip disorder, she noted that the Veteran's left hip injury in service was acute-although no rationale for that conclusion was provided-and there was no continuity/chronicity of care since service. The Board finds those opinions to be inadequate. The examiner does not address any of the instances of complaints of lumbar spine pain during military service noted in the claims file. Moreover, as noted above, there was no rationale provided for the conclusion that the left hip injury in service was acute, and the examiner does not address whether there was a continuity of symptomatology from service, as a "chronicity of care" is not necessary for a finding of a nexus. Accordingly, new VA examinations with respect to the lumbar spine and left hip disorders should be afforded to the Veteran with an examiner who has not previously participated in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Finally, the Board reflects that the last VA examination of the Veteran's bilateral hearing loss disability was in December 2014, nearly 3 years ago. In light of the need to remand that claim for the above reasons and in order to facilitate timely adjudication following completion of the remand, the Board finds that a VA examination of the Veteran's bilateral hearing loss disability should be obtained on remand so that an adequate assessment of the current severity of the Veteran's hearing loss disability is of record. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Muskogee VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his bilateral hearing loss, hypertension, headaches, GERD, psychiatric, lumbar spine, bilateral shoulder, bilateral knee/tibia, and bilateral hip disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA audiological examination in order to determine the current severity of his bilateral hearing loss. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests, including an audiometric evaluation, should be conducted and the results reported in detail. The examination report should also address the Veteran's complaints of hearing loss and its impact on his activities of daily living and occupational functioning. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Schedule the Veteran for a VA orthopedic examination with a physician who has not previously participated in this case. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary, to include x-rays to confirm any arthritic conditions that may exist, should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify/diagnose any lumbar spine, bilateral hip and bilateral knee/tibia disorders found, to include any arthritic conditions thereof. Then, the examiner should opine whether any lumbar spine, bilateral hip and bilateral knee/tibia disorders found, including any arthritic conditions thereof, at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include the noted instances of lumbar spine, hip and knee pain/complaints in his service treatment records, as well as the June 1982 fall down some stairs. In addressing each of the disorders found above, the examiner should also consider the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. Schedule the Veteran for a VA examination in order to determine whether the Veteran's headaches are related to service. The claims folder must be made available to and be reviewed by the examiner. All diagnostic testing deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify/diagnose any headache disorder found. Then, the examiner should opine whether any headache disorder found at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include the noted instances of headaches in his service treatment records. The examiner should also consider the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 6. Schedule the Veteran for a VA psychiatric examination in order to determine whether any psychiatric disorder is related to military service or his service-connected disabilities. The claims file must be made available to the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify/diagnose any psychiatric disability found, to specifically include a depressive disorder. If PTSD is diagnosed, identify the stressors upon which the diagnosis of PTSD is made. For each psychiatric disorder diagnosed, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder began during service or is otherwise related to service. Next, the examiner should opine whether the Veteran's psychiatric disorder was at least as likely as not (a) caused by; or (b) aggravated (i.e., chronically worsened) by the Veteran's service-connected disabilities (including, as of this decision: bilateral hearing loss, tinnitus, and chronic lymphocytic leukemia). In addressing the above opinions, the examiner should consider the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 7. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims for service connection for hypertension, headaches, GERD, psychiatric, lumbar spine, bilateral shoulder, bilateral hip, and bilateral knee/tibia disorders, and increased evaluation for his bilateral hearing loss disability. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. §§ 5109B, 7112 (2012). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs