Citation Nr: 18141130 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-03 042 DATE: October 9, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for a tongue/salivary gland disorder manifested by pain is denied. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for a stomach disorder is remanded. Entitlement to service connection for a blood disorder is remanded. Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have an acquired psychiatric disorder. 2. The Veteran is not shown to have a tongue/salivary gland disorder related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for a tongue/salivary gland disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1971. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a video conference hearing in June 2018; a transcript of this hearing is of record. At the hearing, the Veteran’s representative submitted additional evidence and waived initial RO consideration. 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that he has an acquired psychiatric disorder, claimed as anxiety, depression, and mood swings related to his service. In an October 2010 statement in support of his claim, he reported that he started having anxiety over fear of being sent to Vietnam. He also testified that he was the driver in a car accident in 1969 that resulted in loss of consciousness and a few months later he started having trouble sleeping. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records show the Veteran started complaining of sleep difficulty in December 1969. In March 1970, he reported having a four-week history of sleep difficulty. On both occasions he was prescribed medication, but no psychiatric diagnosis was made. Based on his in-service and current complaints, the Veteran was afforded a VA examination in June 2011 to determine the nature and etiology of his claimed psychiatric disorder. After the examination and review of the file, the psychologist found no evidence of a psychiatric disorder. The Veteran’s complaints of difficulty sleeping are not associated with any psychiatric disorder and the clinician opined that the current complaints of insomnia were not related to the sleeping problems reported in service. She noted there is no evidence of a diagnosis for a psychiatric disorder for which trouble sleeping would be symptomatic during service. Normal psychiatric functioning was reported on a service medical examination that was completed after his complaints of sleeping disturbance. There is no evidence of a diagnosis for a psychiatric condition after service. The clinician, therefore, concluded that there is no evidence for a chronic condition to which his sleep pattern may be attributed. Furthermore, the Veteran denied impairment in functioning attributed to his sleep patterns. The Board finds this opinion is competent, credible, probative, and consistent with the record. There is also no competent evidence to the contrary. The Board’s review of the evidence indicates the Veteran does not have a diagnosed psychiatric disorder. Although many VA treatment records list depression as an active problem or in the medical history, none of the records show that he was ever given a clinical diagnosis for depression or by whom. A February 2003 treatment lists depression among the active problems, but then states that it is not much of a problem and the assessment states it has resolved. Furthermore, there are multiple screenings for mood disorders and depression from 2005 onward that are negative. See April 2011 Medical Treatment Record – Government Facility and December 2014 CAPRI records. During his hearing he testified that he was not aware of ever being diagnosed with a psychiatric disorder and that this was never discussed with his providers. Since the Veteran does not have a currently diagnosed psychiatric disability, the Board finds that service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). 2. Entitlement to service connection for a tongue/salivary gland disorder is denied. The Veteran contends he has a tongue/salivary gland disorder related to his service. He testified that he develops pain every three to six months or even once a year. VA evaluated his complaints, but they never determined what caused the pain. He submitted an article during the hearing concerning pollution and gasoline fumes, but he was unsure how it related to this disability. Post service treatment records note complaints of tongue pain in January 2004, which was reported as having been present for three weeks. The assessment was possible glossitis and since the pain was improving the condition was only monitored. He was to call again if the symptoms persisted or worsened. February and March 2008 treatment records note complaints of jaw pain that had been present for three months. The pain was under the left side of the tongue. He had gone to a dentist a couple of years earlier who placed bridges on the bottom left, center, and middle of his mouth. X-rays of the sinuses revealed left maxillary opacity, but even after he was treated for a sinus infection his symptoms did not improve. The assessment was sialolith versus a tumor. The Veteran was evaluated again for these complaints in May 2008. An ENT exam was negative and the physician stated that sialoadenitis did not typically cause this type of pain unless the gland was swollen, and the Veteran did not describe swelling. He was to see a dentist and if no obvious source was found for his pain then there should be a follow-up for a CT scan of the sinus/face to assess the maxillary and look for a salivary stone in the left submaxillary gland. In October 2008, the Veteran complained of left mandibular pain. He reported having intermittent pain for the past six months that was thought to be sialoadenitis; however, a CT scan only revealed left maxillary sinus disease. See April 2011 Medical Treatment Record – Government Facility. Subsequent treatment records note no further complaints or findings. See December 2014 CAPRI records. Although the Veteran’s complaints have been evaluated and tests have been conducted, no definite diagnosis has been made to explain his symptoms. A tumor was not found and sialoadenitis was thought unlikely. When these episodes have occurred, his pain has been aggravated by tongue movement, eating, and drinking, but no functional impairment has been noted. More specifically, there was no functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Even if the Board was to find that the Veteran’s pain did produce functional impairment, there is no evidence that links it to his service. The Veteran’s service treatment records are silent for complaints or findings of tongue pain. The Veteran did not seek treatment until 2004, which is 33 years after service. At the time, he did not report it as a recurring problem, only that it had been present for three weeks. He has not stated that the problem began in service and the articles he submitted in support of his claim during the hearing that discuss the effect of exposure to gasoline fumes does not include mention of the salivary gland or tongue. See June 2018 Correspondence. Furthermore, the decades between service and the earliest complaints weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Since the Board there is no evidence of service incurrence, a current disability, or nexus evidence, a preponderance of the evidence is against the claim. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder is remanded. The Board finds that the June 2011 VA opinion is inadequate since the examiner did not provide an opinion. The RO requested an opinion on whether the Veteran’s current muscle tension is a chronic condition and whether it is at least as likely as not related to complaints in service. The examiner stated there was not enough documentation to determine if the Veteran has a chronic disorder without speculating. His statement suggests the physician only relied on treatment records and did not consider the Veteran’s reported history since service. Furthermore, the opinion request is inadequate because it limited the examiner to only consider muscle tension in the neck. The examination report states that the muscle tension is associated with degenerative disc disease of the cervical spine. Consequently, another opinion is needed. Ongoing VA treatment records for the cervical spine and the other disorders still on appeal should be obtained. 2. Entitlement to service connection for a respiratory disorder is remanded. The Board finds that the December 2010 VA examination is inadequate to decide the claim, in part, because the claim was construed too narrowly. Although the Veteran only noted bronchitis in his claim for benefits, the Board finds that based on his statements and the evidence of record, it should be more broadly construed as a respiratory disorder to include bronchitis and sinusitis. Notably, the Veteran also discussed his sinus problems in relation to his breathing issues in his testimony and when he was hospitalized in service for bronchitis the physical findings included nasal congestion. He was also treated for bronchitis, sinusitis, and upper respiratory infections during service. The examination request did not include sinusitis, so no opinion was offered but based on the evidence one is needed. Furthermore, the physician indicated that he was unable to provide a nexus opinion because he could not find evidence of chronicity without speculating since there was no diagnosis of bronchitis from 2001 to 2010. The Board does not find this to be an adequate explanation for not providing an opinion, since a positive finding of chronicity is not required to offer an opinion on etiology. 3. Entitlement to service connection for a stomach disorder is remanded. The Veteran’s service treatment records show he had stomach complaints in July 1970 when he reported he had been unable to eat. His complaints also included cramping. The impression is not legible. In December 1970, he complaints of stomach cramps, pain, vomiting, and nausea. He testified that he continued to have symptoms after service, although he is not aware of a diagnosis. His symptoms in service and reports of continuing symptoms after service trigger the duty to schedule a VA examination to determine the nature and etiology of his complaints. 4. Entitlement to service connection for a blood disorder is remanded. The Veteran has a current diagnosis of essential thrombocythemia. See December 2014 CAPRI records. There is no evidence of this disorder in service, but since the Veteran submitted a medical abstract that indicates air pollution cause by gasoline fumes may have an effect on platelet function and his military occupational specialty (MOS) was truck driver, it is plausible that he inhaled gas fumes while in service. Thus, the duty to schedule a VA examination and obtain a nexus opinion is triggered. 5. Entitlement to service connection for a headache disorder is remanded. The Board finds that the June 2011 VA opinion is inadequate since the examiner did not provide any opinions. The RO requested opinions on whether the Veteran’s headache disorder is a chronic condition and whether it is at least as likely as not related to complaints in service or a preexisting disorder that was aggravated by service. The examiner stated there was not enough documentation to determine if the Veteran has a chronic disorder without speculating. His statement suggests the physician only relied on treatment records and did not consider the Veteran’s reported history that his headaches had not completely resolved since service. Furthermore, the examiner did not have the Veteran’s testimony to consider, which included his report of self-treating with over-the-counter pain medication after service. 6. Entitlement to service connection hypertension is remanded. Although the Veteran’s only contention was that his hypertension is secondary to an acquired psychiatric disorder, the evidence submitted during the hearing raises the possibility of service connection on a direct basis. In this regard, the article concerning the effect of exposure to gasoline fumes may include the cardiovascular system. Consequently, an examination and opinion are needed that addresses this theory of entitlement. The matters are REMANDED for the following action: 1. Obtain and associate with the file ongoing VA treatment records since December 2014. 2. After the VA treatment records are obtained, schedule the Veteran for a VA examination to determine the etiology of his cervical spine degenerative disc disease with muscle tension. The claims file must be made available to and reviewed by the clinician. All necessary tests or studies should be completed. The clinician should then address the following: a) Determine whether the current cervical spine disorder at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to service to include the complaints of neck pain noted in service treatment records. In reaching this conclusion, the clinician should take into consideration the Veteran’s statements and testimony concerning the history of his symptoms since service. b) Provide a complete rationale that supports the opinion. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide an opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer. 3. After the VA treatment records are obtained, schedule the Veteran for a VA examination to determine the etiology of his respiratory disorders. The claims file must be made available to and reviewed by the clinician. All necessary tests or studies should be completed. The clinician should then address the following: a) Provide an opinion for whether each disability (bronchitis and sinusitis) clearly and unmistakably (undebatable) preexisted the Veteran's induction into service. Among other things, the examiner should consider the April 1968 induction medical history report that notes a history of sinusitis and the August 1969 service treatment record that shows the Veteran reported having one episode of bronchitis six months prior to service. b) For each disability that clearly and unmistakably (undebatable) preexisted the Veteran’s service, provide an opinion whether the preexisting disability clearly and unmistakably was not aggravated during active service. c) For each respiratory disorder that did not exist prior to service, determine whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to service to include the respiratory complaints noted in service treatment records. In reaching this conclusion, the clinician should take into consideration the Veteran’s statements and testimony concerning the history of his respiratory symptoms since service. d) Provide a complete rationale that supports the opinions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide an opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer. 4. After the VA treatment records are obtained, schedule the Veteran for a VA examination to determine the etiology of his hypertension. The claims file must be made available to and reviewed by the clinician. All necessary tests or studies should be completed. The clinician should then address the following: a) Determine whether the Veteran’s hypertension at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to service. In reaching this conclusion, the clinician should take into consideration the Veteran’s MOS as truck driver and the abstract that indicates pollution caused by gasoline fumes could affect the cardiovascular system. b) Provide a complete rationale that supports the opinion. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide an opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer. 5. After the VA treatment records are obtained, schedule the Veteran for a VA examination to determine the nature and etiology of his stomach disorder. The claims file must be made available to and reviewed by the clinician. All necessary tests or studies should be completed. The clinician should then address the following: a) Identify any current stomach or gastrointestinal disorder. b) If a disorder is diagnosed, determine whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to service. In reaching this conclusion, the clinician should take into consideration the complaints noted in service treatment records. c) Provide a complete rationale that supports the opinion. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide an opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer. 6. After the VA treatment records are obtained, schedule the Veteran for a VA examination to determine the etiology of his blood disorder, diagnosed as essential thrombocythemia. The claims file must be made available to and reviewed by the clinician. All necessary tests or studies should be completed. The clinician should then address the following: a) Determine whether the Veteran’s essential thrombocythemia at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to service. In reaching this conclusion, the clinician should take into consideration the Veteran’s MOS as truck driver and the abstract that indicates pollution caused by gasoline fumes could affect blood platelets. b) Provide a complete rationale that supports the opinion. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide an opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer. 7. After the VA treatment records are obtained, schedule the Veteran for a VA examination to determine the etiology of his headaches. The claims file must be made available to and reviewed by the clinician. All necessary tests or studies should be completed. The clinician should then address the following: a) Considering the Veteran’s reports of headaches on his induction medical history report, provide an opinion regarding whether the Veteran’s headaches clearly and unmistakably (undebatable) preexisted his induction into service. b) If a headache disorder did exist prior to service, provide an opinion whether the preexisting disability clearly and unmistakably was not aggravated during active service. c) If a headache disorder did not exist prior to service, determine whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to service to include the head injury from a car accident and complaints of headaches noted in service treatment records. In reaching this conclusion, the clinician should take into consideration the Veteran’s statements and testimony concerning the history of his headaches since service. 8. After the above development is completed, review the examination reports for completeness and take any corrective deemed necessary. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst