Citation Nr: 18156342 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-58 823 DATE: December 7, 2018 ORDER The claim of entitlement to service connection for tinnitus is denied. The claim of entitlement to service connection for a testicle condition is denied. REMANDED The claim of entitlement to service connection for a muscle weakness condition is remanded. The claim of entitlement to service connection for a fatigue condition is remanded. The claim of entitlement to service connection for a respiratory disease is remanded. The claim of entitlement to service connection for bronchial hyperactivity is remanded. The claim of entitlement to service connection for a sleep disturbance condition, to include sleep apnea is remanded. The claim of entitlement to service connection for a rectal condition, claimed as bloody stool is remanded. The claim of entitlement to service connection for a gastrointestinal condition is remanded. The claim of entitlement to service connection for a skin condition, claimed as a rash on both legs and arms, is remanded. The claim of entitlement to service connection for skin cancer is remanded. The claim of entitlement to service connection for headaches is remanded. The claim of entitlement to service connection for neuropathy of the left upper extremity is remanded. The claim of entitlement to service connection for neuropathy of the right upper extremity is remanded. The claim of entitlement to service connection for neuropathy of the left lower extremity is remanded. The claim of entitlement to service connection for neuropathy of the right lower extremity is remanded. The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran’s diagnosed tinnitus does not have an etiological relationship with active duty service. 2. The Veteran does not have a present diagnosis of a testicle condition, nor has he had one throughout the pendency of this appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for service connection for a testicle condition are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from August 1977 to August 1980. Following the November 2016 Statement of the Case, the Veteran submitted additional private treatment records pertaining to his respiratory disorders. The Regional Office did not readjudicate the disabilities discussed in those treatment records before the case was certified to the Board. As these specific issues are being remanded for additional development, there is no prejudice to the Veteran in failing to obtain a Supplemental Statement of the Case. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board is broadening the Veteran’s claim of entitlement to service connection for PTSD to a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as reflected in the issues section above. See id. at 5 (the claim “cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...”). REFERRED The issues of entitlement to service connection for diabetes mellitus, a back disability and joint pain were raised in March and May 2016 statements and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2018); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. The claim of entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for tinnitus. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and tinnitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is a chronic disease under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to this service connection claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records do not reflect a present diagnosis of tinnitus proper. The Veteran underwent a VA examination in July 2015 wherein he reported experiencing recurrent tinnitus. The Veteran, unfortunately, could not provide the circumstances or timeline for the onset of tinnitus. In a March 2016 statement, the Veteran reported experiencing tinnitus in his shoulders and neck. At no point did the Veteran report that symptoms of ringing in his ears began during service or within one year of discharge. While a layperson is competent to report on the onset and recurrence of symptoms, and such is usually sufficient to establish the etiology in tinnitus cases, the Veteran has not indicated that he experienced a ringing in his ears during active duty service or shortly thereafter. When given the opportunity to specifically detail the onset of his tinnitus to the VA examiner, the Veteran could not do so. It is also unclear that the Veteran is describing experiencing a ringing in his ears based on the March 2016 statement in which he reported tinnitus in his shoulders and neck. The Board affords significant probative weight to the VA examination opinion of record denying an etiological link between the Veteran’s tinnitus and active duty service. The preponderance of the competent, probative evidence of record is against the claim. Based on the foregoing, the claim of entitlement to service connection for tinnitus is denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. The claim of entitlement to service connection for a testicle condition The Veteran contends that he is entitled to service connection for a testicle condition. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a testicle disability 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, 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). The Veteran’s VA treatment records do not note a diagnosis of a testicle condition. Similarly, his private treatment records are silent on the issue. The Veteran himself has not stated with specificity what kind of condition affects his testicles. As there is no indication that the Veteran has a present disability stemming from active duty service, an examination is not required for the purposes of adjudication. While the McLendon factors set a low bar to trigger an examination pursuant to VA’s duty to assist, an examination is not required every time a claim is filed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is only required when necessary to decide a claim. Despite the permissive language of VA’s duty to assist, the Court has stated that “[i]f Congress had wanted the Secretary to automatically provide an examination on all possible theories, then section 5103A would not read the way it does.” Robinson v. Peake, 21 Vet. App. 545, 553 (2008). See also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a claimant’s mere “conclusory generalized statement” that an in-service illness caused his current disability did not trigger VA’s requirement to obtain an examination, and it rejected the theory “that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues”). Here, there is no credible evidence of a present diagnosis related to active duty service other than the Veteran’s lay statements, which are afforded significantly diminished probative weight due to lack of specificity and the absence of corroborating evidence. Therefore, the RO did not err in its duty to assist by failing to provide an examination. While the Veteran believes he has a current diagnosis of a testicle disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record failing to establish a present diagnosis of a testicle disability. Based on the foregoing, the claim of entitlement to service connection for a testicle disability is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND 1. The claim of entitlement to service connection for a muscle weakness condition is remanded. The Board cannot make a fully informed decision regarding the Veteran’s claim of entitlement to service connection for muscle weakness as a VA examination has not been conducted. The Veteran’s VA treatment records note ongoing complaints of weakness and instability with no known etiology. The Veteran reported that, during his active duty service at Fort McClellan, he was exposed to a number of toxins and contaminants, including herbicide agents. He cited to the Environmental Protection Agency report on the environmental cleanup of Fort McClellan due to those contaminants. The Veteran in-processed at Fort McClellan, and trained as a Military Policeman at the same base, as corroborated by his service personnel records. The Veteran’s service treatment records also indicate warnings to medical officers that the Veteran served in a Nuclear Duty Position, but development on any possible exposure to radiation or contaminants was not conducted. As there is at least an indication that the Veteran’s muscle weakness could be a result of exposure to the cited toxins at Fort McClellan, or as a result of exposure to radiation during active duty, an examination is necessary on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). 2. The claim of entitlement to service connection for a fatigue condition is remanded. See argument in section 1. 3. The claim of entitlement to service connection for a respiratory disease is remanded. See argument in section 1. 4. The claim of entitlement to service connection for bronchial hyperactivity is remanded. See argument in section 1. 5. The claim of entitlement to service connection for a sleep disturbance condition, to include sleep apnea, is remanded. See argument in section 1. 6. The claim of entitlement to service connection for a rectal condition, claimed as bloody stool is remanded. See argument in section 1. 7. The claim of entitlement to service connection for a gastrointestinal condition is remanded. See argument in section 1. 8. The claim of entitlement to service connection for a skin condition, claimed as a rash on both legs and arms is remanded. See argument in section 1. 9. The claim of entitlement to service connection for skin cancer is remanded. See argument in section 1. 10. The claim of entitlement to service connection for headaches is remanded. See argument in section 1. 11. The claim of entitlement to service connection for neuropathy of the left upper extremity is remanded. See argument in section 1. 12. The claim of entitlement to service connection for neuropathy of the right upper extremity is remanded. See argument in section 1. 13. The claim of entitlement to service connection for neuropathy of the left lower extremity is remanded. See argument in section 1. 14. The claim of entitlement to service connection for neuropathy of the right lower extremity is remanded. See argument in section 1. 15. The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as a VA examination has not been conducted. While the Regional Office could not verify the Veteran’s stressor, his VA treatment records indicate diagnoses of PTSD, depression and anxiety associated with his military experiences. This is at least an indication that his acquired psychiatric disorder is related to active duty service, and an examination is necessary on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Contact the Veteran and attempt to obtain more detailed information about his in-service stressor. The Veteran may provide a timeframe including reference to a particular season or time of year in order to narrow the records search. If additional information is received, contact the JSRRC and adjudicate accordingly. 4. After the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate specialist to assess his gastrointestinal and rectal conditions. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the examiner. The examiner must take a history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Identify any and all diagnoses pertaining to the Veteran’s gastrointestinal system and rectum; (b.) For each identified diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified diagnosis had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include exposure to toxins at Fort McClellan or possible radiation exposure? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. After the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate specialist to assess his bilateral upper and lower extremity neuropathies. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the examiner. The examiner must take a history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s bilateral upper and lower extremity neuropathies had their onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include exposure to toxins at Fort McClellan or possible radiation exposure? (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s neuropathies were caused by or aggravated by his diabetes mellitus? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 6. After the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate specialist to assess his respiratory conditions, including respiratory disease and bronchial hyperactivity. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the examiner. The examiner must take a history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Identify any and all diagnoses pertaining to the Veteran’s respiratory system; (b.) For each identified diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified diagnosis had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include exposure to toxins at Fort McClellan or possible radiation exposure? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 7. After the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate specialist to assess his skin conditions, including skin cancer and bilateral extremity rashes. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the examiner. The examiner must take a history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Identify any and all diagnoses pertaining to the Veteran’s skin; (b.) For each identified diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified diagnosis had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include exposure to toxins at Fort McClellan or possible radiation exposure? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 8. After the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate specialist to assess his claimed fatigue condition and sleep disorder, to include sleep apnea. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the examiner. The examiner must take a history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Identify any and all diagnoses pertaining to the Veteran’s claimed fatigue and sleep disorders; (b.) For each identified diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified diagnosis had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include exposure to toxins at Fort McClellan or possible radiation exposure? (c.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s fatigue condition or sleep disorder was caused by or aggravated by his other diagnosed disabilities? To note: obesity may be an intermediary step between a service-connected disability and the development of another disability. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 9. After the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate specialist to assess his claimed headaches. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the examiner. The examiner must take a history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s headaches had their onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include exposure to toxins at Fort McClellan or possible radiation exposure? (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s headaches were caused by or aggravated by his other diagnosed disabilities? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 10. After the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate specialist to assess his claimed muscle weakness condition. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the examiner. The examiner must take a history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Identify any and all diagnoses pertaining to the Veteran’s claimed muscle weakness; (b.) For each identified diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified diagnosis had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include exposure to toxins at Fort McClellan or possible radiation exposure? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 11. After the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of his acquired psychiatric disorder. The examiner must review the entire claims file, including a copy of this remand. The examiner must consider the Veteran’s lay reports of observable symptomatology, as well as previous medical opinions regarding the etiology of his acquired psychiatric disorder. After a thorough review of the record is complete, the examiner must respond to the following: (a.) List any and all acquired psychiatric disorders with which the Veteran is presently diagnosed. (b.) For each acquired psychiatric disorder, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 12. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel