Citation Nr: 21004360 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-31 254 DATE: January 26, 2021 ORDER Service connection for tinnitus is granted. Service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for a right leg disability, to include varicose veins, is remanded. Entitlement to service connection for a left leg disability, other than post-operative varicosities, is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a recurrent left foot disability is remanded. Entitlement to service connection for a recurrent kidney disability is remanded. Entitlement to service connection for liver disability, claimed as the result of exposure to Camp Lejeune contaminated water, is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Tinnitus has been shown to have originated during active service. 2. Service connection has been for post operative left lower extremity varicosities, tension headaches, and tinnitus. 3. Major depressive disorder has been diagnosed secondary to the service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1977 to August 1979. The Veteran served at Camp Lejeune, North Carolina. Service Connection Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. 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). Tinnitus The Veteran asserts that service connection for tinnitus is warranted as he was exposed to noise during active service and experienced tinnitus “since his early 20’s.” The service treatment records do not refer to tinnitus or ringing of the ears. The service personnel records show that the Veteran was a motor vehicle and heavy vehicle operator in the Marine Corps. Given such military occupations, the Board of Veterans’ Appeals (Board) acknowledges that the Veteran was exposed to engine noise during service. The report of a May 2014 Department of Veterans Affairs (VA) auditory examination states that the Veteran presented a history of recurrent tinnitus since “his early 20’s.” The Veteran was born in 1958. The examiner reported that: the “Veteran served in the Marine Corps, as a heavy vehicle operator, from 1977 to 1979;” “he denied combat service, but reported exposure to gunfire, generators, diesel engines, and air tools;” and he “denied civilian noise exposure.” The Veteran was diagnosed with tinnitus. The audiologist concluded that the diagnosed tinnitus was “less likely than not (less than 50% probability) caused by or a result of military noise exposure.” She commented that “Veteran did not serve in combat and his hearing remained normal without significant threshold shift per his May 1977 and October 1978 hearing screenings.” The examiner did not provide a rationale as to why the diagnosed tinnitus was not related to the Veteran’s history of in service tinnitus. Therefore, the Board finds the examination report is of limited probative value. The Board finds that the evidence is in at least equipoise as to whether the diagnosed tinnitus arose during active service. The Veteran served as a motor vehicle and heavy equipment operator during active service; was exposed to engine noise; reported experiencing tinnitus during active service after such noise exposure; and has been diagnosed with tinnitus on VA examination. The Veteran is competent to report that tinnitus was present in service and that it has existed from service to the present. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002). Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Major Depressive Disorder. The Veteran contends that service connection for depression is warranted as he has been diagnosed with the claimed disability secondary to the service connected disorders. Service connection may also be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been for post operative left lower extremity varicosities, tension headaches, and tinnitus. A January 2016 psychological evaluation from H. Henderson-Galligan, Ph.D., states that the Veteran was diagnosed with a depressive disorder due to another medical condition with depressed features. The report of a May 2019 VA psychiatric examination states that the Veteran was diagnosed with recurrent major depressive disorder. The examiner commented that “overall, the vet reports a history of depression due to his left leg pain and resulting limitations, consistent with ongoing VA MH treatment records.” A November 2020 psychological evaluation from Dr. Henderson-Galligan clarifies that “the Veteran’s depressive disorder more likely than not began during military service and has continued uninterrupted and to be aggravated by his left lower extremity varicosities and headaches.” VA and private psychiatric and psychological examiners have diagnosed the Veteran with a depressive disorder secondary to the service connected disabilities. Therefore, the Board concludes that service connection for major depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right lower extremity disability, to include varicose veins, is remanded. A May 2019 VA treatment record states that the Veteran was diagnosed with “varicose veins: mild; controlled with compression stockings.” The report of an August 2019 VA vascular examination states that the examiner commented that “I see no evidence today of varicose veins” in either lower extremity and “the service connected left leg varicose veins which have resolved post operatively.” An April 2020 VA treatment record states that the was diagnosed with “varicose veins: mild; controlled with compression stockings.” VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the apparent conflict between the VA clinical documentation of record and the August 2020 VA examination report as to whether the Veteran has recurrent varicose veins, the Board finds that further VA vascular evaluation is necessary. Clinical documentation dated after May 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a left leg disability, a lumbar spine disability, a right ankle disability, a left ankle disability, a right foot disability, and a recurrent left foot disability is remanded. The report of an August 2019 VA examination addressing the left leg, the lumbar spine, the right ankle, the left ankle, the right foot, and the left foot indicates that the Veteran was diagnosed with lumbar spine degenerative disc disease with radiculopathy; right and left posterior tibialis tendon dysfunction and pain; and bilateral pes planus. The examiner concluded that the diagnosed disabilities were “less likely than not (less than 50% probability) the result of in service injuries or events. The VA physician did not address the relationship, if any, between the diagnosed disabilities and the post operative left lower extremity varicosities. Given such omission, the Board finds that further VA evaluation addressing the left leg, the lumbar spine, the ankles, and the feet is necessary. 3. Entitlement to service connection for a recurrent kidney disability is remanded. The report of an August 2019 VA kidney examination states that the Veteran was diagnosed with “nephrolithiasis (kidney stones).” The examiner advanced no opinion as to the relationship, if any, between the diagnosed kidney disability and active service. Given such omission, the Board finds that the examination report is of essentially no probative value and further VA kidney evaluation is necessary. 4. Entitlement to service connection for a liver disability, claimed as the result of exposure to contaminated water at Camp Lejeune, is remanded. The report of an August 2019 VA liver examination states that the Veteran was diagnosed with “non-alcoholic steatohepatitis (NASH) of unknown etiology.” The examiner commented that: “I do not opine that it at least as likely as not (a fifty percent probability or greater) that the Veteran’s liver dysfunction began in service or is otherwise related to a disease, event, or injury in service, to include in-service exposure to contaminated water at Camp Lejeune;” “I have no evidence that he had any liver abnormalities while in service;” and “contaminated water from Camp LeJeune is not known to cause NASH.” The Board is unable to reconcile the examiner’s concurrent findings that diagnosed liver disability was of “unknown etiology” and the liver disability was not related to active service including the conceded exposure to contaminated water at Camp Lejeune. Therefore, the examination report is of essentially no probative value and further VA liver evaluation is needed. 5. Entitlement to a TDIU is remanded. Entitlement to a TDIU requires an accurate assessment of the impairment associated with all of the service connected disabilities. The claim is inextricably intertwined with other issues being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any right leg, varicose veins, left leg disability, lumbar spine, right ankle, left ankle, right foot, left foot, kidney, and liver disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records for treatment provided since May 2020 not already of record. 3. Schedule the Veteran for a VA examination conducted by an appropriate physician, who has not previously examined the Veteran, to assist in determining the nature and etiology of the claimed right leg disabilities including varicose veins, and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all right leg disabilities found. If right lower extremity varicose veins are not identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right leg had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any right leg disability is due to or the result of the post operative left lower extremity varicosities and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any right leg disability has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by the post operative left lower extremity varicosities and the other service connected disabilities. 4. Schedule the Veteran for a VA spine examination conducted by an appropriate physician who has not previously examined the Veteran, to assist in determining the nature and etiology of the lumbar spine disability and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all lumbar spine disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbar spine disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbar spine disability is due to or the result of the post operative left lower extremity varicosities and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified lumbar spine disability has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by the l post operative left lower extremity varicosities and the other service connected disabilities. 5. Schedule the Veteran for a VA examination conducted by an appropriate physician who has not previously examined the Veteran, to assist in determining the nature and etiology of the left leg (other than post operative left lower extremity varicosities), right ankle, and left ankle, disabilities and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all left leg and ankle disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left leg disability (other than post operative extremity varicosities) and ankle disability had their onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left leg disability (other than post operative varicosities) and ankle disability is due to or the result of the post operative left lower extremity varicosities and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified left leg disability (other than post operative l varicosities) and ankle disability has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by the post operative left lower extremity varicosities and the other service connected disabilities. 6. Schedule the Veteran for a VA foot examination conducted by an appropriate physician who has not previously examined the Veteran, to assist in determining the nature and etiology of the right foot and left foot disabilities and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all foot disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability had their onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability is due to or the result of the post operative left lower extremity varicosities and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified foot disability has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by the post operative left lower extremity varicosities and the other service connected disabilities. 7. Schedule the Veteran for a VA kidney examination conducted by an appropriate physician, who has not previously examined the Veteran, to assist in determining the nature and etiology of the kidney disability and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent kidney disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified kidney disability had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to contaminated water at Camp Lejeune, North Carolina. 8. Schedule the Veteran for a VA liver examination conducted by an appropriate physician, who has not previously examined the Veteran, to assist in determining the nature and etiology of the liver disability and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent liver disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified liver disability had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to contaminated water at Camp Lejeune, North Carolina. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.