Citation Nr: 21061888 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-17 772 DATE: October 5, 2021 ORDER Service connection for right foot arthritis is denied. Service connection for left foot arthritis is denied. Service connection for intestinal problems, including gastroesophageal reflux disease (GERD), is denied. Service connection for muscle spasms in the forearms, legs, back, and abdominal muscles is denied. Service connection for chronic epistaxis (claimed as chronic nose bleeds) is denied. Service connection for an autoimmune disease, including ulcerative colitis, is denied. REMANDED Service connection for a bladder disorder, including bladder cancer, hematuria, and chronic retention of urine (claimed as bladder problems), is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with right foot arthritis; symptoms of the right foot arthritis were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the right foot arthritis did not have its onset during service, and is not otherwise etiologically related to service, including to trichloroethylene (TCE) exposure during service. 2. The Veteran is currently diagnosed with left foot arthritis; symptoms of the left foot arthritis were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the left foot arthritis did not have its onset during service, and is not otherwise etiologically related to service, including to TCE exposure during service. 3. The Veteran is currently diagnosed with GERD; the current GERD did not have its onset during service, and is not otherwise etiologically related to service, including to TCE exposure during service. 4. The Veteran does not have a diagnosed or functionally impairing disability that is manifested by muscle spasms in the forearms, legs, back, and abdomen. 5. The Veteran is not currently diagnosed with chronic epistaxis or have a functionally impairing disability manifesting epistaxis. 6. The Veteran is not currently diagnosed with an autoimmune disease, including ulcerative colitis. CONCLUSIONS OF LAW 1. The criteria for service connection for right foot arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for service connection for left foot arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 3. The criteria for service connection for intestinal problems, including GERD, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for muscle spasms in the forearms, legs, back, and abdominal muscles have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection for chronic epistaxis have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for an autoimmune disease, including ulcerative colitis, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from October 1965 to October 1968. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran is currently diagnosed with arthritis in the right and left feet, which is a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease 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. 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service connection for right foot arthritis 2. Service connection for left foot arthritis The Veteran generally seeks service connection for right and left foot arthritis. See January 2017 VA Form 21-526EZ. During the July 2021 Board hearing, the Veteran testified that he believes right and left foot arthritis is the result of TCE exposure during service. Initially, the Board finds the Veteran is currently diagnosed with arthritis in the right and left feet. See August 2016 VA treatment record. After a review of all the evidence or record, lay and medical, the Board finds that the weight of the lay and medical evidence shows no in-service right or left foot injury, disease, or even symptoms of a right or left foot disorder during service, including no chronic symptoms of arthritis during service. Service treatment records do not show any injury, complaints, symptoms, diagnosis, or treatment for right or left foot pain, including no chronic symptoms of arthritis in the right or left foot during service. An October 1968 service separation examination shows the Veteran's feet were found to be clinically normal. The lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the right or left foot since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on presumptive avenues of "chronic" in-service symptoms, "continuous" post service symptoms, or arthritis to 10 percent within one year of service. As discussed above, neither the service treatment records nor the October 1968 service separation examination indicated any history or findings or diagnosis for a foot injury or disorder, including arthritis in the right or left foot. The earliest evidence of arthritis in the right and left foot is not indicated until 2016 in an August 2016 VA treatment record diagnosing degenerative changes at the tarsal and metatarsal joints in both feet. This evidence reflects the presence of arthritis nearly 48 years after service separation and nearly 47 years outside the applicable presumptive period. On the question of direct nexus between the current right and left foot arthritis and service, the Board finds that the preponderance of the lay and medical evidence is against a finding that the currently diagnosed arthritis is causally related to service. In addition to the findings of no in-service injury, disease, or even right or left foot symptoms suggestive of onset of injury or disease during service, the weight of the evidence also shows that the symptoms of the right and left foot arthritis had their onset after active service. The Veteran was not treated for arthritis in the right and left feet until after service and was not diagnosed with arthritis in the right and left feet until decades after service in August 2016. The Board further finds that the current right and left foot arthritis is not etiologically related to TCE exposure during service. Although the Veteran asserts that the current right and left foot arthritis is causally related to TCE exposure during service, he is a lay person and, under the specific facts of this case, does not have the requisite medical expertise to be able to diagnose right and left foot arthritis or render a competent medical opinion regarding its cause. The facts of this case show no in-service right or left foot injury or disease or symptoms, and no right or left foot arthritis symptoms until decades after service. Arthritis is complex and involves unseen systems processes and disease processes that are not observable by the five senses of a lay person, and includes various possible etiologies, and is diagnosable only by X-ray or similar specific specialized clinical testing; therefore, under the facts presented in this case, the Veteran is not competent to retroactively diagnose arthritis or to opine as to its etiology, including to TCE exposure during service. To relate the orthopedic process of arthritis of the feet to chemical exposure during service decades prior would involve a very complex medical analysis to attempt to explain how chemical exposure could turn into arthritis. For the foregoing reasons, the Board finds that the weight of the evidence is against the claims for service connection for right and left foot arthritis on all service connection theories; therefore, the claims must be denied. 3. Service connection for intestinal problems The Veteran generally seeks service connection for intestinal problems. See January 2017 VA Form 21-526EZ. During the July 2021 Board hearing, the Veteran testified that he believes intestinal problems are the result of TCE exposure during service. Initially, the Board finds the Veteran is currently diagnosed with GERD. See April 2019 VA treatment record. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the current GERD did not have its onset during service and is not otherwise etiologically related to service. Service treatment records do not reflect any complaints, symptoms, treatments, or diagnoses for GERD or other intestinal disorder. An October 1968 service separation examination report reflects the Veteran's abdomen and viscera systems were found to be clinically normal. Post-service VA treatment records do not show evidence of any epigastric symptoms until 2008, in a November 2008 VA treatment record showing a history of esophageal reflux. The Board further finds that the current GERD is not etiologically related to TCE exposure during service. As discussed above, although the Veteran asserts that GERD is causally related to TCE exposure during service, he is a lay person and, under the specific facts of this case, does not have the requisite medical expertise to be able to diagnose GERD or render a competent medical opinion regarding its cause when the facts of this case show no in-service symptoms or treatment for GERD. To relate the digestive process of GERD to chemical exposure during service decades prior would involve a very complex medical analysis to attempt to explain how chemical exposure could turn into a digestive disorder. Based on the foregoing evidence, the Board finds that the preponderance of the lay and medical evidence is against finding that the current intestinal problems, including GERD, are etiologically related to service, including to TCE exposure during service. The weight of the evidence demonstrates the current GERD had its onset well after service as the Veteran did not report a history of GERD until November 2008. The evidence of record does not relate the current GERD to an event during service, including to TCE exposure during service. For these reasons, the Board finds that the weight of the evidence is against service connection for intestinal problems, including GERD, and the claim must be denied. 4. Service connection for muscle spasms in the forearms, legs, back, and abdominal muscles The Veteran contends that service connection for muscle spasms in the forearms, legs, back, and abdomen is warranted due to exposure to TCE during service. See July 2021 Board hearing transcript. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current disability or functionally impairing disability manifested by symptoms of muscle spasms in the forearms, legs, back, and abdomen. VA treatment records reflect general complaints of muscle pain and cramps, but treatment records do not reflect that the Veteran has been diagnosed with an underlying disability manifested by the muscle cramps, or that the muscle cramps have resulted in a functionally impairing disability. See e.g., November 2013 VA treatment record; September 2016 VA treatment record. A November 2013 VA treatment record reflects the Veteran complained of muscle cramping that he attributed to the use of statin medication. Upon examination of the Veteran, the VA provider noted no erythema nodus or pyoderma seen, and no joint inflammation appreciated; the VA provider found decreased extremity strength but noted that the patient's effort was unclear on examination. A September 2016 VA treatment records reflects the Veteran complained of recurrent pain in the arms, back, and thighs; examination of the Veteran revealed the Veteran was able to stand up and walk with no gait abnormality, that he had good range of motion in the neck and spine, and that there were no acute signs of inflammation. Because the weight of the evidence demonstrates no current diagnosed or functionally impairing disability manifested by symptoms of muscle cramps in the forearms, legs, back, and abdomen, the claim for service connection must be denied. 5. Service connection for chronic epistaxis The Veteran contends that service connection for chronic epistaxis (claimed as chronic nose bleeds) is warranted due to exposure to TCE during service. See July 2021 Board hearing transcript. Upon review of all the lay and medical evidence of record, the Board finds that the weight of the evidence shows the Veteran does not currently have chronic epistaxis or a functionally impairing chronic nose bleeding disorder. VA and private treatment records throughout the relevant claims period on appeal do not reflect complaints, symptoms, or diagnosis for chronic epistaxis or a chronic nose bleeding disorder. Instead, VA treatment records reflect that the Veteran was last treated several times in 2008 for complains of chronic epistaxis, which is outside of the relevant claims period on appeal. See February 2008 VA treatment record; April 2008 VA treatment record; May 2008 VA treatment record. VA treatment records throughout the relevant claims period on appeal only reflect a single incidental finding of mild epistaxis observed during treatment, which is consistent with the Veteran's testimony during the July 2021 Board hearing that he rarely experiences nosebleeds now. A January 2019 VA treatment record shows the Veteran was seen for complaints of dysphagia and dysphonia but also complained of post-nasal drip, rhinorrhea, and nasal congestion. Examination of the Veteran with a flexible fiberoptic endoscope revealed no significant defect of the left nasal cavity with mild epistaxis, but without polyps, masses, or perforations noted. Because the weight of the evidence demonstrates no diagnosed or functionally impairing disability of chronic epistaxis, the claim for service connection must be denied. 6. Service connection for an autoimmune disease The Veteran generally seeks service connection for an autoimmune disease. See January 2017 VA Form 21-526EZ. During the July 2021 Board hearing, the Veteran testified that he suffered a bad case of ulcerative colitis in 1985 that he believes is related to TCE exposure during service. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for an autoimmune disease, including ulcerative colitis. VA treatment records throughout the relevant claims period on appeal reflect a history of ulcerative colitis in 1985, but do not reflect any current complaints, symptoms, or diagnoses for ulcerative colitis or any other autoimmune disease. In the absence of a current disability at any time during or immediately prior to the relevant claim period on appeal, the claim for service connection for an autoimmune disorder, to include ulcerative colitis, must be denied. REASONS FOR REMAND 7. Service connection for a bladder disorder to include bladder cancer is remanded. The Veteran generally asserts that a bladder disorder, to include symptoms of hematuria and chronic retention of the urine, and recently diagnosed as bladder cancer, is etiologically related to active service, including to TCE exposure during service. The Veteran alternatively asserts that bladder cancer is the result of herbicide exposure while stationed on the U.S.S. Constellation, which was sailing in the "Blue Waters" offshore from the Republic of Vietnam (Vietnam) during the Vietnam War Era. Development has not been undertaken on the question of whether the Veteran had service in the blue waters off the coast of Vietnam; therefore, remand for further development is warranted. The issue of service connection for a bladder disorder is REMANDED for the following actions: 1. The Regional Office (RO) should undertake development on the Veteran's nautical service and whether such service was in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. 2. If and only if the Veteran's exposure to herbicides during service has been established, request that a VA medical professional review the electronic file and provide the following VA opinion for the claimed bladder disorder, to include bladder cancer. It at least as likely as not (i.e. 50 percent probability or greater) that the current bladder disorder, to include bladder cancer, is etiologically related to in-service exposure to herbicides (Agent Orange)? (Continued on the next page) In providing the reasons for the above opinion, the VA examiner should presume that the Veteran was exposed to herbicide agents during service. The VA examiner should not use as a reason for the opinion that the Veteran's bladder disorder/bladder cancer is not on VA's herbicide presumptive service connection list (38 C.F.R. § 3.309(e)). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.