Citation Nr: 18159568 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 14-38 281 DATE: December 20, 2018 ORDER New and material evidence having been received the claim for service connection for a head injury is reopened and to that extent only the claim is granted. Service connection for a traumatic brain injury (TBI) with residual headaches is granted. Service connection for hearing loss is denied. Service connection for a heart disability is denied. Service connection for elevated cholesterol is denied. Service connection for a liver disability is denied. Service connection for a kidney disability is denied. Entitlement to a rating in excess of 10 percent for service-connected tinnitus is denied. Entitlement to a compensable rating for service-connected tinea cruris is denied. REMANDED Service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD) secondary to service-connected disabilities is remanded. Service connection for hepatitis a, b, and c is remanded. Service connection for loose bowels, to include irritable bowel syndrome, is remanded. Service connection for a stomach disability, to include gastritis, is remanded. Service connection for left upper extremity neuropathy is remanded. Service connection for right upper extremity neuropathy is remanded. Entitlement to a rating in excess of 20 percent for service-connected cervical spine degenerative joint disease (DJD) is remanded. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine DJD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In December 1979 and March 1980 rating decisions, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a head injury; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the March 1980 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a head injury. 3. The Veteran’s headache disability is related to military service. 4. The Veteran does not have hearing loss for VA compensation purposes. 5. The Veteran does not have a current heart disability. 6. The Veteran’s elevated cholesterol is not a disability for VA compensation purposes. 7. The Veteran does not have a current liver disability. 8. The Veteran does not have a current kidney disability. 9. Tinnitus is currently rated as 10 percent disabling, the maximum rating authorized under the relevant Diagnostic Code. 10. The Veteran’s tinea cruris does not require intermittent systemic therapy and covers less than five percent of exposed areas of the body. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for a head injury is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for TBI with residual headaches have been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for hearing loss have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria for service connection for a heart disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for elevated cholesterol have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for a liver disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a kidney disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for an initial rating in excess of 10 percent for service-connected tinnitus have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. 9. The criteria for an initial compensable rating for service-connected tinea cruris have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to June 1979. The Veteran was scheduled for a Board of Veterans’ Appeals (Board) hearing at the RO. In November 2018, the Veteran withdrew his hearing request. Accordingly, appellate review will proceed without a hearing. 38 C.F.R. § 20.704(d). The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to a TDIU is properly before the Board. The Veteran has not been afforded a VA examination in connection with his service connection claims for a heart disability, elevated cholesterol, kidney and liver disabilities. Generally, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As discussed further below, there is no competent evidence that the Veteran has a current heart, kidney, or liver disability related to active service, and elevated cholesterol is not a disability for VA compensation purposes. As such, the Board finds that a VA examination is not necessary to decide the claims. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App. at 79. Neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for a head injury in a December 1979 decision and again in March 1980, because the Veteran failed to report for VA examinations. The Veteran was provided notice of these decisions and his appellate rights but did not appeal the decisions or submit new and material evidence within one year of the decisions. Therefore, the decisions are final. See 38 C.F.R. §§ 3.104, 19.118, 19.153 (1980). The Board notes the Veteran filed new claims for service connection for a TBI with memory loss and headaches in March 2012 and for a headache disability in July 2013. The evidence received since the March 1980 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, VA examinations and a private medical opinion. This new evidence addresses the reason for the previous denial; that is, evidence of a current disability and a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection 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). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA has established certain rules and presumptions for chronic 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. The eight specified diseases are: kidney cancer; liver cancer; Non-Hodgkin’s lymphoma; adult leukemia; multiple myeloma; Parkinson’s disease; aplastic anemia and other myelodysplastic syndromes; and, bladder cancer. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Notwithstanding the foregoing, just because service connection may be granted for a disease on a presumptive basis under certain regulations, does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). 1. Service connection for a headache disability, to include TBI with residual headaches. The Veteran asserts his headaches are related to an in-service car accident. He asserts that he has experienced headaches over the past 30 years. See April 2012 VA Treatment Record. Service treatment records reflect that the Veteran sustained a head injury during a car accident. The records reflect that the Veteran complained of headaches and neck pain during military service. The Veteran underwent VA examination in August 2012. The August 2012 examiner diagnosed TBI and migraine headaches. When asked if the Veteran has any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI he reported that the Veteran experiences headaches, including migraine headaches. The examiner opined that the Veteran’s disability was less likely than not incurred in or caused by the claimed in-service injury, event, or disease. He explained that the Veteran has had several concussions. He reported that the Veteran had headaches following the motor vehicle accident for about five months and that according to neuropsychology testing was not strongly suggestive of acquired cognitive functioning. In September 2015 a VA examiner diagnosed migraine headaches. The Veteran reported he was in a car accident in 1978 and that he lacerated his scalp after his head collided with the steal door of the van he was a passenger in. He reported that after the accident he continued to heave headaches daily. He reported continuing to heave daily headaches with different degrees of severity. The examiner noted the Veteran was diagnosed with common migraines in 2012 and currently uses over the counter medication. He opined the Veteran’s headaches are less likely as not related to the in-service headache condition. He explained that although the Veteran has a documented head injury and scalp laceration, no complaints of headaches were noted in the service records. In January 2017 the Veteran obtained a private medical opinion. The examiner reviewed the Veteran’s claims file and conducted an in-person interview. He reported that the veteran experienced prostrating migraine headaches. The treatment provider opined that it is as likely as not that the Veteran’s TBI with residual headaches is a result of the motor vehicle accident in service and has continued uninterrupted to the present. He reported the Veteran’s entrance examination was clear for TBI and headaches and both his sister and post-service records indicated he has had them since. The Board acknowledges that there is conflicting medical evidence regarding the cause of the Veteran’s headache disability. The opinion of the September 2015 examiner is inadequate as it is based on an inaccurate factual premise; service treatment records reflect that the Veteran did complain of headaches following his motor vehicle accident. The August 2012 examiner merely states that the Veteran had headaches following the motor vehicle accident for about five months and that according to neuropsychology testing was not strongly suggestive of acquired cognitive functioning. The January 2017 private treatment provider offered an opinion after consideration of the medical and lay evidence of record and in-person examination. He explained that the Veteran’s entrance examination was clear for TBI and headaches and both his sister and post-service records indicated he has had them since. The Veteran is competent to report observable symptomatology and the record reflects the Veteran has asserted he has had headaches for the last 30 years. Therefore, resolving the benefit of the doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s headache disability is related to military service. As such, service connection is warranted. See 38 U.S.C. § 5107(b). 2. Service connection for hearing loss. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The evidence of record does not contain a current diagnosis for hearing loss which meets the criteria for a hearing disability for VA purposes. The Veteran underwent VA examination in April 2013. The Veteran reported that he cannot hear well while talking with people and that he has to turn the television up. Speech recognition scores in the right and left ear were 96 percent and audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 20 25 LEFT 20 25 25 20 25 In the absence of proof of a present disability, there is no valid claim presented. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Since the competent evidence does not show hearing loss for VA purposes, service connection is not warranted for this disorder. While the Veteran can attest to subjective hearing loss, the Veteran is not competent to provide an objective determination of the level of hearing loss, as required under 38 C.F.R. § 3.385. In this case, the Board finds that the medical evidence is more probative than the Veteran’s lay statements with regard to a current hearing loss disability. Accordingly, the Veteran’s claim for service connection for bilateral hearing loss must be denied, as the Veteran does not exhibit hearing loss for VA purposes. Thus, the doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. Service connection for a heart disability. The Veteran asserts that exposure to contaminated water at Camp Lejeune caused heart palpitations, skipping heart beats and chest pains in 1979. See July 2013 Statement. See Camp Lejeune Questionnaire. However, a review of the Veteran’s treatment records is absent current complaints or a diagnosis for a heart disability. The evidence does not reveal the Veteran has symptoms for, or been diagnosed with, any heart disability during the period on appeal. His statements that a heart disability is related to military service or a service-connected disability does not amount to evidence of persistent or recurrent symptoms of a current disability. While the Veteran is competent to report observable symptomatology, he is not competent to provide such as diagnosis without medical expertise. Thus, his statements are not probative as to the existence of a current disability. As the preponderance of the evidence is against a finding that the Veteran has a current heart disability, the claim for service connection must be denied. See Degmetich v. Brown, 104 F.3d 1328 (1997); see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 4. Service connection for elevated cholesterol. The Veteran contends that his elevated cholesterol is related to active service. However, this condition is not a disability per se, for which VA compensation may be awarded. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich, 104 F.3d 1328; Brammer, 3 Vet. App. 223. Rather, it is a laboratory-confirmed clinical finding of abnormal blood chemistry with no diagnosis of an underlying chronic condition. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 887 (32nd ed. 2012). Although high cholesterol may be considered a risk factor in the development of certain diseases, it is not a disease, injury, or disability, in and of itself, for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities; therefore, they are not appropriate entities for the rating schedule). Furthermore, the term “disability” refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439 (1995). There is no evidence of record suggesting that the Veteran’s cholesterol causes him any impairment of earning capacity. Accordingly, the Board finds that because elevated cholesterol is not a current disability for which service connection may be granted, the claim must be denied. 5. Service connection for a liver disability and service connection for a kidney disability. The Veteran asserts that exposure to contaminated water at Camp Lejeune caused kidney and liver problems. See July 2013 Statement. He reported that he kept getting sick after military service in 1979. See Camp Lejeune Questionnaire. However, a review of the Veteran’s treatment records is absent current complaints or a diagnosis for a kidney disability or a liver disability. The evidence does not reveal the Veteran has symptoms for, or been diagnosed with, any kidney or liver disability during the period on appeal. His statements that these disabilities are related to military service or a service-connected disability does not amount to persistent or recurrent symptoms of a current disability. While the Veteran is competent to report observable symptomatology, he is not competent to provide such a diagnosis without medical expertise. Thus, his statements are not probative as to the existence of a current disability. In August 2015 a VA medical opinion was obtained. The examiner reported that the Veteran does not have a current liver condition and there is no diagnosis or indication of a kidney problem. He indicated that the Veteran has had a Hepatitis c infection but that the most recent viral antigen load test conducted March 2014 showed no detectable antigen load. He reported that there is no indication from the provider’s notes or from the laboratory results that the Veteran has other liver problems, nor evidence of kidney problems. He reported that the Veteran has no diagnosis of a kidney condition and no diagnosis of a liver condition other than evidence of a past viral hepatitis. He explained in the absence of the diagnoses he could not identify a nexus between the diagnoses and any exposures at Camp Lejeune. This is the most probative evidence as to the existence of a current disability and is adverse to the claim. The other medical evidence of record is not in conflict with the finding by the examiner that the Veteran does not currently have a diagnosis for a liver disability or a kidney disability. As the preponderance of the evidence establishes that the Veteran does not have a current liver disability or a kidney disability, the claims must be denied. See Degmetich, 104 F.3d 1328; see also McClain, 21 Vet. App. 319. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 6. Entitlement to a rating in excess of 10 percent for service-connected tinnitus. The Veteran is assigned a 10 percent rating for tinnitus throughout the period on appeal under 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran asserts his tinnitus is more severe than the currently assigned disability rating. He underwent VA examination in April 2013. The examiner diagnosed recurrent tinnitus. The Veteran reported that due to his tinnitus he has to ask people to say things over and over again. The maximum, and only, schedular rating for this particular disability is 10 percent. 38 C.F.R. § 4.87, Diagnostic Code 6260. As such, the Veteran is in receipt of the maximum schedular rating available for tinnitus for the entire appeal period. Id. There is no other appropriate Diagnostic Code pursuant to which a higher rating could be awarded. Accordingly, a disability rating in excess of 10 percent for tinnitus cannot be granted and, as such, the claim must be denied. Neither the Veteran nor his attorney has raised any other issues with respect to the increased rating claim, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). 7. Entitlement to a compensable rating for service-connected tinea cruris. VA promulgated a Final Rule amending several key aspects of 38 C.F.R. § 4.118 (“Final Rule”), effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). The claim on appeal was pending prior to August 13, 2018. Therefore, the Board will consider this appeal under both the old and new rating criteria. Under the Final Rule, the revisions and additions to § 4.118 read as follows: (a) For the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. (b) Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. The amended version of § 4.118 also sets forth a General Rating Formula for the Skin (“General Rating Formula”). The amended Diagnostic Code 7806 (governing dermatitis or eczema) directs the adjudicator the evaluate under the General Rating Formula. To warrant a higher rating under the General Rating Formula the evidence would need to show at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. In contrast, under the pre-August 2018 version of 38 C.F.R. § 4.118, Diagnostic Code 7806 (dermatitis or eczema) to warrant a higher rating the evidence would need to show: at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. The old version of Diagnostic Code 7806 also directs the adjudicator, “Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.” In response to the Federal Circuit’s holdings in Johnson v. Shulkin, 862 F.3d 1351(Fed. Cir. 2017), the amended version of 38 C.F.R. § 4.118 clearly defines the terms “systemic therapy” and “topical therapy.” A compensable rating is not warranted under the current or pre-August 2018 version of 38 C.F.R. § 4.118. The Veteran underwent VA skin examination in September 2015. The Veteran reported that he has had intermittent episodes of flare-ups in the groin region since he was diagnosed with tinea cruris in 1977 and was prescribed topical medications. He reported he notices these episodes during warm weather and that he was not currently on any treatment for the condition. The examiner reported that the Veteran has not been treated with oral or topical medication in the past 12 months, that the Veteran has had no debilitating episodes, and the visible skin condition effects none of the total body area and less than five percent of the exposed body area. The Board notes that the Veteran is competent to describe observable symptomatology. However, the Veteran’s assertions that he has itchy skin, does not amount to a compensable rating under the appropriate diagnostic code. At no time during the appeal period has the Veteran’s skin disability required any form of “systemic therapy,” as the Federal Circuit defined that term in Johnson. During VA examination the Veteran expressly acknowledged that he was “not currently on any treatment for this condition.” There is no lay or medical evidence suggesting, and he does not contend, that he currently uses medications for this disability or that his tinea cruris covers at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected. The Board also considered whether the Veteran’s service-connected skin disability could be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), or scars (Diagnostic Codes 7801-7805), or based on impairment of function. 38 C.F.R. § 4.118. However, the Board finds those Diagnostic Codes do not apply here because there is no lay or medical evidence of scars or disfigurement due to his service-connected skin condition. Also, the Veteran does not contend and the medical evidence does not show benign neoplasms on the skin, or impairment of function due to the service-connected skin disability. In summary, for the initial rating period on appeal, the Veteran’s service-connected tinea cruris warrants a noncompensable rating, under either the old or new provisions of 38 C.F.R. § 4.118. Neither the Veteran nor his attorney has raised any other issues with respect to the increased rating claim, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder. The Veteran asserts that his psychiatric disorder is related to military service or secondary due his service-connected disabilities. Specifically, the Veteran asserted that his depression is due to service-connected disabilities and that his nervousness is due to exposure to contaminated water at Camp Lejeune. See September 2012 and July 2013 Statements. VA treatment records reflect the Veteran is treated for PTSD with depression and in April 2017 he reported that he experienced anxiety while stationed on long periods of guard duty while in service and that he did not like being closed in and continues to worry. The Veteran underwent VA examination in April 2013. The examiner diagnosed cannabis dependence, cocaine dependence, alcohol dependence and depression. He explained that the Veteran abused cocaine, alcohol, cannabis before, during (except for cocaine during military service), and after service. He reported the Veteran was arrested before the service, had problems, in service, and continued to have legal problems after service in large part due to his substance abuse behavior. He reported the Veteran admitted to being hit in the head, robbed, and assaulted when he tried to purchase drugs and that the Veteran has a long history of cocaine, alcohol and cannabis abuse which has significantly impacted his quality of life leaving him homeless, unemployed with limited funds and very limited family and social support. He reported the Veteran’s depressive symptoms are likely due in part to his history of substance abuse and dependence and, therefore, the Veteran’s depressive disorder is less likely as not caused by or a result of the Veteran’s service-connected cervical spine degenerative joint disease and lumbar spine degenerative joint disease. The Veteran underwent a private medical examination in January 2017. The private treatment provider diagnosed major depressive disorder, recurrent, severe type with undifferentiated and overlapping anxious distress features. He opined that after examination, review of the claims file, family statement, and evidence-based research, the Veteran’s disability appears more likely as not to have begun in service and is further aggravated by his service-connected medical conditions, lumbar and cervical spine DJD, tinnitus, tinea cruris, and non-service-connected headaches uninterrupted to the present. Based on the foregoing, the Board finds remand is necessary to obtain a supplemental medical opinion that appropriately addresses whether the Veteran’s current psychiatric disability is aggravated by his service-connected disabilities or is a direct result of his military service. 2. Service connection for hepatitis A, B, and C. The Veteran asserts that he has hepatitis a, b, and c due food poisoning while stationed in Hawaii. See March and April 2012 Statements. Service treatment records reflect an in-service diagnosis for hepatitis b. The record reflects that the Veteran underwent a VA examination for hepatitis in May 2012. In June 2012 the VA examiner opined that the Veteran’s disability was less likely as not incurred in or caused by an in-service injury, event or illness. He explained that the Veteran has evidence of immunity to hepatitis b, and there was no evidence of hepatitis or residuals at that time. In August 2015 VA obtained a medical opinion with respect to the Veteran’s service connection claim for hepatitis. The examiner reported that review of the available records reveals that the Veteran had a hepatitis c infection, but that as of the most receive viral antigen load test performed March 2014, he had no detectable antigen load. He reported there is no indication that the Veteran has any other kidney or liver problems. The examiner reported that hepatitis c infections are not caused by chemical exposures, this is a viral disease caused exclusively by exposure to the live virus and there is no indication in the literature that there is any increased risk of this infection in Marines stationed at Camp Lejeune, and even if there were such a statistic, it would certainly not be due to groundwater contaminated with solvents. He opined that the Veteran has no diagnosis for a kidney condition, no diagnosis for a liver condition other than evidence of a past viral hepatitis and in the absence of the diagnoses he could not identify a nexus between the diagnoses and exposure at Camp Lejeune. However, the service connection claim for hepatitis was last adjudicated in a July 2014 Statement of the Case and the Agency of Original Jurisdiction has yet to issue the required supplemental statement of the case. See 38 C.F.R. § 19.31. Therefore, the appeal must be remanded so that a supplemental statement of the case may be issued that considers all evidence of record. 3. Service connection for a stomach disability, and service connection for loose bowels. The Veteran asserts that he has gastritis and stomach problems, and loose bowels due to exposure to contaminated water at Camp Lejeune. VA treatment records reflect that the Veteran has a current diagnosis for Gastroesophageal Reflux Disease (GERD) and that he has complained of constipation. Service treatment records reflect the Veteran was treated for pain in his abdomen and chest and was diagnosed with gastroenteritis. A VA examination or medical opinion has not been obtained with respect to the issues on appeal. Based on the foregoing the Board finds remand is necessary to obtain a medical opinion to address the Veteran’s GERD symptoms and determine what symptoms are attributable to the Veteran’s current GERD and determine its etiology. 4. Entitlement to a rating in excess of 20 percent for service-connected cervical spine DJD and lumbar spine DJD and service connection for left and right upper extremity neuropathy. The record reflects that the Veteran underwent a VA examination for his service-connected lumbar and cervical spine disabilities in October 2017. The cervical spine examination also addresses whether the Veteran has a current left upper extremity and right upper extremity neurological disability. However, the Agency of Original Jurisdiction has yet to issue the required supplemental statement of the case. See 38 C.F.R. § 19.31. Therefore, the appeals must be remanded so that a supplemental statement of the case may be issued that considers all evidence of record. 5. Entitlement to a TDIU. As previously noted, a claim for entitlement to a TDIU has been raised by the record. See Rice, 22 Vet. App. at 455. During the September 2015 VA examination the examiner reported that the Veteran was currently unemployed and had to stop working due to back and neck pain. The record reflects that the Veteran does not meet the schedular criteria for a TDIU; however, as appeals for service connection and increased rating for service-connected disabilities are subject to this remand, he may become eligible. On remand, the Veteran should be provided notice consistent with a claim for a TDIU and be asked to provide a VA Form 21-8940 reflecting his employment and educational history. The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding how to substantiate his claim for entitlement to a TDIU and request that he submit a VA Form 21-8940. 2. The Veteran should be scheduled for an appropriate examination to assess his mental health complaints. After interview and examination of the Veteran, and review of the claims file, the examiner should address the following: (a) list all appropriate psychiatric diagnoses; (b) if PTSD or another trauma- or stressor-related disorder is diagnosed, list all stressful events contributing to the diagnosis; (c) for each diagnosed disorder offer and opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder is related to an in-service injury, event, or disease; or, was (i) caused by or (ii) aggravated (i.e., worsened beyond its natural progression) by a service-connected disability or disabilities, to include his lumbar spine, cervical spine, tinnitus, and tinea cruris disabilities. In offering the opinion, the examiner is asked to review the April 2013 VA examination, January 2017 private medical opinion and disability benefits questionnaire, and the Veteran’s lay statements that he felt anxiety while on guard duty during military service, and his sister’s statement that the Veteran communicated less during military service and was depressed and not the same person anymore after military service. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 3. The claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has current GERD, or a current stomach or bowel disorder, that is related to an in-service injury, event, or disease, to include exposure to contaminated water at Camp Lejeune. In offering the opinion, the examiner is asked to address the Veteran’s current complaints of constipation and loose bowels as well as the diagnosis of GERD, and to consider in-service complaints of abdomen and chest pain and diagnosis of gastroenteritis. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 4. After the above development has been completed and any other development deemed necessary, the issues remaining on appeal should be readjudicated, to include the issue of entitlement to a TDIU, and if denied, a supplemental statement of the case should be issued. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel