Citation Nr: 1808136 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 16-20 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for pulmonary disability, claimed as due to asbestos exposure. 2. Entitlement to service connection for residuals of transitional cell cancer of the bladder, claimed as due to asbestos exposure or as a result of Agent Orange exposure. 3. Entitlement to service connection for carpal tunnel syndrome of the left wrist, previously claimed as arthritis of the fingers of the left hand. 4. Entitlement to service connection for carpal tunnel syndrome of the right wrist, previously claimed as arthritis of the fingers of the right hand. 5. Entitlement to service connection for a low back disability. 6. Entitlement to service connection for radiculopathy of the left lower extremity, claimed as due to a low back disability. 7. Entitlement to service connection for radiculopathy of the right lower extremity, claimed as due to a low back disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from August 1956 to August 1960 and from October 1960 to May 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The February 2014 rating decision denied service connection for bladder cancer, a pulmonary condition, arthritis of the fingers in both hands, and a low back condition. The May 2015 rating decision denied service connection for radiculopathy of the bilateral lower extremities. The Veteran was scheduled to appear at a Board hearing, but submitted timely correspondence in September 2017 to withdraw this request. The request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(d) (2017). A service connection claim may include claims for service connection of any disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As a result, the Board has taken an expansive view of the Veteran's claims for finger arthritis pursuant to Clemons because there is an indication that the Veteran's claimed symptoms in both hands may be related to the Veteran's current diagnosis of carpal tunnel syndrome. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for bladder cancer, a low back disability, radiculopathy of the bilateral lower extremities, and bilateral wrist carpal tunnel syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current diagnosis of a pulmonary disability. CONCLUSION OF LAW The criteria to establish service connection for a pulmonary disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service Connection for a Pulmonary Disability The Veteran contends that he developed a pulmonary disability as a result of service, to include asbestos exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service treatment records are silent as to any complaints or treatment for a pulmonary condition, and on all entrance and separation examinations, the Veteran's lungs were clinically normal. Post-service treatment records also do not contain a current diagnosis for a pulmonary disability. A necessary element for establishing entitlement to service connection is the existence of a current disability; it is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At no time during the appellate period has the Veteran been diagnosed with a pulmonary disability. VA and private treatment records do not show a diagnosis or complaints from the Veteran regarding a pulmonary disability. Despite the Veteran's claim that he was exposed to asbestos, a current diagnosis for a pulmonary disability is still necessary. After a full review of the record, the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for a pulmonary disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided a letter to the Veteran in November 2013, prior to the initial adjudication of the service connection claims on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The notice requirements of the VCAA apply to all elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was provided with such notice by the November 2013 letter, including the type of evidence necessary to establish a disability rating and effective dates. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). Here, service records have been obtained as have records of VA and private treatment. Based on the foregoing, the Board finds that VA has met its duty to assist with regard to records development. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 claimant 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) insufficient competent evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of a relationship between a current disability and service (or, by analogy, to a service-connected disability), the Court has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). A conclusory generalized statement regarding the nexus between a disability and service is not enough to entitle a veteran to a medical examination under § 5103A(d)(2)(B). Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). "Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case." Id. As discussed above, service treatment records are silent as to any complaints or treatment for a pulmonary condition, and on entrance and separation examinations, the lungs were normal. Moreover, post-service evidence shows that the Veteran does not have a current diagnosis for a pulmonary disability. Consequently, a VA examination as to the etiology of the claimed disability is not warranted, even under the low threshold of McLendon. All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER Service connection for a pulmonary disability is denied. REMAND Although the Board regrets the additional delay, a remand is required in this case. First, the Veteran's November 2013 VA examination for bladder cancer did not contain an opinion regarding direct service connection. A medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face. Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may only consider independent medical evidence and may not substitute its own medical opinion.). Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, during the course of the appeal, the Veteran submitted a new claim alleging that his bladder cancer was caused by Agent Orange exposure. This theory has not been addressed. The Veteran's exposure to Agent Orange has already been conceded by the RO and he was awarded service connection for coronary artery disease based on this very presumption. See February 2016 Rating Decision. However, bladder cancer is not one of the enumerated chronic diseases presumptively associated with herbicide agent exposure. 38 C.F.R. §§ 3.307, 3.309(e). Thus, service connection cannot be granted on a presumptive basis. Nonetheless, the Veteran may still establish service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Secretary has entered into an agreement with NAS to review and summarize the scientific evidence concerning the association between exposure to herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. The NAS submits a report to the Secretary every two years regarding the results of their review and summary of the medical literature. As relevant, in the latest report "Veterans and Agent Orange: Update 2014" (Update 2014), released in March 2016, NAS moved bladder cancer from the "inadequate or insufficient evidence" category to the "limited or suggestive evidence" category. NAS has defined "limited or suggestive evidence of an association" to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." The Veteran's claim for finger arthritis on both hands has been expanded pursuant to Clemons v. Shinseki in order to address the symptoms claimed by the Veteran. 23 Vet. App. 1, 5 (2009) . The Board notes that the Veteran's service treatment records show treatment for hand and finger injuries. The Veteran also has a current diagnosis for carpal tunnel syndrome of both wrists as well as arthritis of an unspecified location. As a result, a VA examination is necessary. Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities. Colvin, 1 Vet. App. at 171. The Veteran contends that he did not have dorsal scoliosis in service and was incorrectly diagnosed with such on his entrance examination during his first period of service in 1956. See Statement In Support of Claim, received May 2, 2016. Notably, the Veteran's separation examination in 1960 and subsequent entrance and separation examinations from his second period of service do not contain any findings regarding a diagnosis for dorsal scoliosis. Moreover, there is no current diagnosis for this condition. The Veteran also asserts that his current low back disability is a result of an injury he sustained in service when he fell on the cleat that was used to tie down a ship to a dock. See Veterans Application for Compensation and Pension, received April 9, 2013. Additionally, the evidence shows that the Veteran had a laminectomy and possibly another lumbar surgery, but those records have not been requested or associated with the file. These records may be helpful in determining the etiology of these surgeries and whether they are related the Veteran's in-service injury. Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed low back disability. Colvin, 1 Vet. App. at 171. The Board notes that the issue of entitlement to service connection for radiculopathy of the left and right lower extremities cannot be adjudicated until the service connection issue for a low back disability is addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, these issues are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request authorization from the Veteran to obtain any private treatment records identified by him, specifically to include medical records related to any low back surgeries. 2. Obtain updated VA treatment records since June 2016. 3. Schedule the Veteran for a VA examination for purposes of determining the current nature, extent and etiology of any currently diagnosed residuals of bladder cancer. The examiner should review the claims file, interview and examine the Veteran, conduct any appropriate testing, and offer opinions regarding the directives below: a) Identify and diagnose all current residuals of bladder cancer. b) For each residual of bladder cancer identified, opine whether it is at least as likely as not (50 percent probability or greater) related to service, which periods of service were from August 1956 to August 1960 and from October 1960 to May 1977. There are two entries in VBMS containing the Veteran's service treatment records. See VBMS entries with document type, "STR - Medical," received 1/23/1978 and received 11/23/2013. They contain multiple Reports of Medical Examination and Medical History throughout the Veteran's periods of service. c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's bladder cancer was caused by his exposure to herbicide agents in Vietnam? The examiner is to consider the "Veterans and Agent Orange: Update 2014" that moved bladder cancer from the "inadequate or insufficient evidence" category to the "limited or suggestive evidence" category. The examiner is further advised of the fact that bladder cancer is not presumptively associated with herbicide exposure under VA regulations cannot serve as the sole basis for a negative opinion. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. NOTE: The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. Schedule the Veteran for a VA examination for purposes of determining the current nature, extent and etiology of any currently diagnosed low back disability. The examiner should review the claims file, interview and examine the Veteran, conduct any appropriate testing, and offer opinions regarding the directives below: a) Identify and diagnose all current low back disabilities, to include associated radiculopathy of both the left and right lower extremities. b) Identify whether the Veteran was properly diagnosed with dorsal scoliosis in 1956 and explain whether the condition resolved by the second period of service as the condition was no longer noted on entrance or separation examinations after 1956 or perhaps was wrongfully diagnosed in 1956. The Veteran served on active duty from August 1956 to August 1960 and from October 1960 to May 1977. There are two entries in VBMS containing the Veteran's service treatment records. See VBMS entries with document type, "STR - Medical," received 1/23/1978 and received 11/23/2013. They contain multiple Reports of Medical Examination and Medical History throughout the Veteran's periods of service. c) For each low back disability identified, opine whether it is at least as likely as not (50 percent probability or greater) related to service. d) For each radiculopathy disability identified, opine whether it is at least as likely as not (50 percent probability or greater) related to the low back disability. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. NOTE: The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 5. Schedule the Veteran for a VA examination for purposes of determining the current nature, extent and etiology of any currently diagnosed bilateral wrist/hand/finger disability, to include arthritis and/or carpal tunnel syndrome. The examiner should review the claims file, interview and examine the Veteran, conduct any appropriate testing, and offer opinions regarding the directives below: a) Identify and diagnose all current bilateral wrist/hand/finger disabilities, to include arthritis and/or carpal tunnel syndrome. b) For each wrist/hand/finger disability identified, opine whether it is at least as likely as not (50 percent probability or greater) related to service, which periods of service were from August 1956 to August 1960 and from October 1960 to May 1977. There are two entries in VBMS containing the Veteran's service treatment records. See VBMS entries with document type, "STR - Medical," received 1/23/1978 and received 11/23/2013. They contain multiple Reports of Medical Examination and Medical History throughout the Veteran's periods of service. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. NOTE: The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 6. After completing the above and conducting any additional development deemed necessary, including obtaining any updated treatment records, readjudicate the claims on appeal in light all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs