Citation Nr: 18155989 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-33 174 DATE: December 6, 2018 ORDER Entitlement to service connection for gastrointestinal condition, to include as due to undiagnosed illness, is granted. Entitlement to service connection for lymphoma cancer is denied. Entitlement to service connection for tonsillitis is denied. Entitlement to service connection for gingivitis dental disability, also claimed as dentures, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a skin disability is remanded. FINDINGS OF FACT 1. The probative evidence of record shows the Veteran’s gastrointestinal condition has been diagnosed as an undiagnosed illness and has manifested to at least a 10 percent degree. 2. The probative evidence of record does not show the Veteran’s lymphoma cancer is related to his active duty service. 3. The probative evidence of record does not show the Veteran currently suffers from a tonsillitis disability that is related to his active duty service. 4. The Veteran’s gingivitis dental disability is not due to loss of substance of body of maxilla or mandible from trauma or disease such as osteomyelitis. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic gastrointestinal disability due to undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for service connection for lymphoma cancer have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for tonsillitis disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for service connection for gingivitis dental disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1987 to November 1994, to include service in Southwest Asia. The Board recognizes that the Veteran has also claimed entitlement to service connection to hydraulic fluid exposure. However, the Board notes that hydraulic fluid exposure is not a condition or disability that is recognized by the VA, and thus, cannot be considered for service connection. Therefore, the Board will not be adjudicating the claim as a separate issue, but will instead consider hydraulic fluid exposure as a theory of contention. The issue of service connection for gingivitis dental disability is being decided only for compensation purposes, not for dental treatment. The Board notes that in the February 2015 rating decision, the Regional Office (RO) only made a decision regarding dental disability for compensation purposes and not a decision regarding dental condition. There is further no documentation showing the RO referred the claim to the VA medical center, as is required under 38 C.F.R. § 3.381(a). As such, a claim for a dental disability for purposes of VA outpatient treatment is referred to the AOJ for appropriate action, to specifically include referral of the claim for dental treatment to the appropriate VA Medical Center if this has not already been accomplished. See 38 C.F.R. § 3.381(a). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). The probative value attributed to a medical opinion issued by either VA or private treatment providers to support service connection depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran’s claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board must consider whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in supporting objective clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejects medical opinions that do not indicate whether the physicians actually examined the veteran, do not provide the extent of the examination, and do not provide supporting clinical data). The Court has held that a bare conclusion, even when reached by a health care professional, is not probative without an accurate factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). 1. Gastrointestinal Condition The Veteran contends that his gastric symptoms are related to his active duty service. Service connection for chronic, undiagnosed illness (or a medically unexplained chronic multi-symptom illness such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117, 38 C.F.R. § 3.317. The Board notes that the Veteran has service in Bahrain. In April 2016, the Veteran received a VA examination. The examiner noted the Veteran’s symptoms began with vomiting but currently include bloating, early satiety, and periumbilical pain. The examiner noted he suffers from recurring symptoms up to four times a year. Upon examination, the examiner could not make a diagnosis of gastritis without resorting to mere speculation. The examiner further elaborated that the Veteran’s symptoms were non-specific and were seemingly being self-treated as acid-peptic symptoms. The examiner found they did not relate to any episodes of acute gastritis in the Veteran’s service treatment records. The examiner then opined that the Veteran’s current gastrointestinal symptoms are of an undiagnosed illness. The Board notes that VA treatment records show the Veteran has been seen for gastric issues such as bloating, early satiety, and acid reflux since September 2015. A 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. Although the Veteran has not been noted to have dysphagia, pyrosis (heart burn), or regurgitations out right, the Board notes that the Veteran was noted to having acid reflux, which is often accompanied by heartburn, abdominal pain with his gastric symptoms, and the examiner noted the Veteran’s symptoms began with vomiting. Therefore, the Board finds the overall picture of his symptoms most closely represent a manifestation to 10 percent. Accordingly, as the Veteran has met the criteria under 38 C.F.R. § 3.317, entitlement to service connection for gastrointestinal disorder due to undiagnosed illness is warranted. 2. Lymphoma Cancer The Veteran contends that his lymphoma is related to his active duty service, to include his exposure to hydraulic fluids and an in-service lump on his neck. The Board acknowledges that the Veteran has been diagnosed with stage 4 lymphoma cancer. Further, the Veteran’s service treatments records (STRs) also show the Veteran was seen for a lump in his neck in August 1989 and show he was exposed to hydraulic fluid. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service event and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is not. In January 2015, the Veteran received a VA examination. The examiner opined that the Veteran’s lymphoma cancer was not related to his complaints for lump on neck while on active duty. The examiner rationalized that there was a separation gap between the 1989 complaint of lump on neck and 2014. The examiner further stated there is no direct or causal correlation of the lump on his neck in 1989 and his recent lymphoma diagnosis in 2014. The examiner noted that the Veteran had routine follow-ups and observation with no evidence of clinical progression. The examiner lastly provided that there was insufficient documentation and follow-up to substantiate a link between two. In April 2016, the Veteran received another VA examination. The examiner opined that the Veteran’s lymphoma cancer was less likely than not related to his exposure to hydraulic fluid during service. The examiner rationalized that angioimmunoblastic T-cell lymphoma (AITL) is one of the more common peripheral T-cell lymphomas, more common in men than in women, and higher in Asian/Pacific Islanders and Hispanic Whites than in other ethnic groups in the US. The examiner further said that although the median age at diagnosis is 60-65 years, the age range of incidence is from 20 to 86 years old. The examiner stated that AITL presents acutely with lymphadenopathy and skin rash, and is usually stage 3 or 4 at the diagnosis. Thus, the examiner found that from an epidemiologic perspective, the Veteran is a classic case of AITL. The examiner went on to explain that there are no studies in humans exposed to hydraulic fluids either by oral, respiratory, or transdermal routes, that have shown evidence of neoplastic or carcinogenic effects in the lymphoreticular system. The examiner provided that experimental studies have shown effects on lymph nodes after exposure to hydraulic fluids in rats; however, those effects were not lymphoid proliferation, which is what occurs in AITL, but were of lymphoid depletion. The examiner further stated it has been well established that toxicology studies are species specific, and therefore, the effects shown in rats or mice would not constitute evidence for a link between the Veteran’s exposure to hydraulic fluids during service. The examiner further stated regarding the Veteran’s skin rashes in service, those conditions were diagnosable and none were characteristic of those seen in AITL. The examiner lastly stated that there was a 20-year gap between the Veteran’s separation and his AITL diagnosis, which makes an association unlikely. The Board notes that the Veteran has provided private treatment records that show his initial diagnosis and treatment of his lymphoma cancer. However, none of the records have related his lymphoma to his service, to include hydraulic exposure and the previous lump on his neck. Therefore, the Board finds the January 2015 and April 2016 VA medical examinations and opinions to be of significant probative value in determining that the Veteran’s lymphoma cancer is not related to his period of service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physicians’ opinions were based on review of the Veteran’s lay contentions, his reported medical history, review of the medical evidence of record, and review of medical literature. Further, complete and thorough rationales were provided for the opinions rendered and are consistent with the evidence of record. The Board acknowledges the Veteran’s assertions that his lymphoma cancer is due to hydraulic exposure and a lump on his neck while in service. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether lymphoma cancer is related to his military service requires medical expertise that the Veteran has not demonstrated since cancers can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 3. Tonsillitis The Veteran contends that he currently suffers from tonsillitis that is related to his active duty service. The Board finds that the medical evidence of record does not reflect the Veteran has a current tonsillitis diagnosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). VA treatment records are silent for any treatment, complaints, or diagnosis related to tonsillitis. The Veteran’s private medical records also do not contain any diagnosis for tonsillitis. The Board notes that his private medical records noted “enlarged tonsil” during an April 2014 visit; however, the enlarged tonsils were related to his lymphoma symptoms, and were not a separate diagnosis. The Veteran has provided no further evidence that shows a tonsillitis diagnosis. The Board acknowledges that the Court has previously held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim’s adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had tonsillitis at any time during the pendency of this case. Further, the one-time mention of “enlarged tonsils” in his record was attributed to his lymphoma cancer, which he is not service-connected for. Thus, the Board concludes that the Veteran at no time during the pendency of his claim has suffered from a tonsillitis disability and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 4. Gingivitis Dental Disability The Veteran contends that his loss of teeth, which has required him to wear dentures, is related to his active duty, to include being diagnosed with gingivitis during service. 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). However, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for VA compensation purposes. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, Diagnostic Code 9913. (noting that current legal authority only allows compensation for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.). The Board notes that the Veteran’s service treatment records show treatment for gingivitis; however, there are no mentions of any trauma to the Veteran’s face or mouth. There were no mentions of any anatomical loss or bony injury of the mandible nor was there a mentioning of any anatomical loss or bony injury of the maxilla, or loss of a portion of the ramus. The Veteran has further never been diagnosed with a disease such as osteomyelitis. Additionally, the Board notes that at no time during the pendency of the claim has the Veteran been diagnosed with a mouth injury, condition, or disease. Although the Veteran did receive in-service treatment for gingivitis, there are no mentions of physical injury to his face in any of his records during or prior to the pendency of his claim. Therefore, the Veteran also does not have a current disability that qualifies for service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran’s claims. 1. Bilateral Hearing Loss and Tinnitus The Veteran contends that his hearing loss and tinnitus are related to his active duty service, to include his position as a first-degree mechanic. In February 2015, the Veteran received a hearing examination. The examiner initially opined that the Veteran’s hearing loss was less likely than not caused by or a result of an event in service. The examiner rationalized that there was no documentation showing significant threshold shifts while in service, and the separation audiogram noted normal hearing thresholds per VA criteria. The examiner then opined that the Veteran’s tinnitus was at least as likely as not related to his bilateral hearing loss, and was less likely than not related to his active duty service due to audiograms in service showing normal limits and reports of tinnitus were several years after service. However, at the end of the opinion, the examiner then opined that the Veteran’s claimed hearing problem is at least as likely as not incurred in or caused by noise exposure while on active duty and rationalized that the Veteran experienced a decrease of hearing service and was exposed to excessive noise in service. The Board finds the February 2015 VA examiner provided conflicting hearing loss opinions, and thus, they are inadequate to fairly adjudicate the Veteran’s claims for service connection. The examiner stated the Veteran’s hearing loss was not related to an event in service due to normal audiogram thresholds in service, and then also stated it was related to military noise exposure because a decrease in hearing was shown. Therefore, it is not clear whether his hearing loss is related to service or not. Additionally, due to the examiner opining that the Veteran’s tinnitus is related to his bilateral hearing loss, the claim for tinnitus must also be remanded since it is inextricably intertwined with his claim for hearing loss. Accordingly, due to the examiner providing inconsistent opinions on whether the Veteran’s hearing loss is related to service, a remand is required in order to obtain a new opinion addressing the above. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Skin Condition The Veteran contends that he currently suffers from a skin condition that is related to his active duty service, to include as due to exposure to hydraulic fluid, in-service rash complaints, and as undiagnosed illness due to service in Southwest Asia. In January 2015, the Veteran received a VA examination. The examiner opined that the Veteran’s claimed dermatitis is less likely as not related to treatment and complaints for rash while on active duty. The examiner rationalized that although there is mention of rash and dermitis in 1989, 1990, and 2014, the current skin evaluation was within normal limits. In April 2016, the Veteran received another VA examination. The examiner noted that the Veteran currently suffered from pruritus. The examiner provided that the only rash documented within the Veteran’s STRs was a classic exanthem due to an allergic reaction to ampicillin in 1989, prior to the Gulf War era. The examiner stated that the Veteran also had a furuncle on the posterior right thigh due to staph aureus. However, the Veteran did not claim an ongoing rash at separation from the Navy in 1994. The examiner then stated that based on the evidence in the Veteran’s STRs, the claimed skin condition is a disease with a clear and specific etiology and diagnosis. The examiner then opined that none of the Veteran’s skin conditions in the past or currently are at least as likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Board finds the January 2015 and April 2016 VA opinions are inadequate to fairly adjudicate the Veteran’s claim for service connection. Although the examiners provided that the Veteran’s skin conditions were not related to in-service complaints or due to an undiagnosed illness, the Board notes that the Veteran contended that his skin conditions were also possibly due to his exposure to hydraulic fluids. Thus, the examiners should have provided an opinion on all of the Veteran’s contentions. Accordingly, due to the examiners not providing an opinion on whether Veteran’s skin condition is related to his in-service hydraulic fluid exposure, a remand is required in order to obtain a new opinion addressing the above. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claims. 2. After all outstanding records have been associated with the file, return the claims file to the VA examiner who provided the February 2015 opinion on the Veteran’s bilateral hearing loss and tinnitus. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the February 2015 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset during, or is otherwise related to, his active duty service, to include his in-service position as a mechanic. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 3. Return the claims file to the VA examiner who provided the April 2016 opinion on the Veteran’s skin condition claim. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the April 2016 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s skin condition had its onset during, or is otherwise related to, his active duty service, to include his in-service exposure to hydraulic fluid. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel