Citation Nr: 21065198 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-56 211A DATE: October 25, 2021 REMANDED 1. Entitlement to service connection for renal disability to include tubular acidosis with kidney stones, stents, and associated back pain, is remanded. 2. Entitlement to service connection for migraine headaches is remanded. 3. Entitlement to service connection for gastric disability, to include gastric paresis, stomach pain, placement of stent, hiatal hernia, gastro esophageal disease, Barrett's esophagus, and ulcers, is remanded. 4. Entitlement to service connection for gynecological disability, to include residuals of hysterectomy, removal of large cysts from ovaries, and endometriosis, is remanded. 5. Entitlement to service connection for skin disability of the arm, to include arm fungus, is remanded. 6. Entitlement to service connection for bilateral foot disability, to include ingrown toenails and foot rot, is remanded. 7. Entitlement to service connection for gallbladder disability, to include gallbladder removal, is remanded. 8. Entitlement to service connection for thyroid disability, to include thyroid growths, is remanded. 9. Entitlement to service connection for disability manifested by facial swelling, right sided facial numbness, and stones in the saliva glands, (hereinafter facial disability), is remanded. 10. Entitlement to service connection for disability of the knees, hips, shoulders, arms, and back, (claimed as osteoporosis), is remanded. 11. Entitlement to service connection for eyelid disability, to include styes in the eyes and eyelid swelling, is remanded. 12. Entitlement to service connection for heart disability, to include heart murmur, is remanded. 13. Entitlement to service connection for an acquired psychiatric disorder, to include difficulty sleeping, and posttraumatic stress disorder (PTSD), is remanded. 14. Entitlement to service connection for a dental disability for compensation purposes is remanded. 15. Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment is remanded. 16. Entitlement to a compensable rating for residual scar, appendectomy, is remanded. 17. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to January 1982. The Veteran has qualifying service at Camp Lejeune and is presumed to have been exposed to contaminants in the water supply during that time. 38 C.F.R. § 3.307(a)(7)(iii). This appeal comes before the Board of Veterans' Appeals (Board) from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In June 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 90 days for the submission of supporting evidence. The Board subsequently received additional evidentiary submissions. Next, it is noted that because a claim for service connection for a dental disability for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment, the Board has recharacterized the issue to include a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). Lastly, aside from the below explicit findings, in remanding these matters, the Board makes no further findings, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for renal disability to include tubular acidosis with kidney stones, stents, and associated back pain, is remanded. 2. Entitlement to service connection for migraine headaches is remanded. 3. Entitlement to service connection for gastric disability, to include gastric paresis, stomach pain, placement of stent, hiatal hernia, gastro esophageal disease, Barrett's esophagus, and ulcers, is remanded. 4. Entitlement to service connection for gynecological disability, to include residuals of hysterectomy, removal of large cysts from ovaries, and endometriosis, is remanded. 5. Entitlement to service connection for skin disability of the arm, to include arm fungus, is remanded. 6. Entitlement to service connection for bilateral foot disability, to include ingrown toenails and foot rot, is remanded. 7. Entitlement to service connection for gallbladder disability, to include gallbladder removal, is remanded. 8. Entitlement to service connection for thyroid disability, to include thyroid growths, is remanded. 9. Entitlement to service connection for facial disability is remanded. 10. Entitlement to service connection for disability of the knees, hips, shoulders, arms, and back, claimed as osteoporosis, is remanded. 11. Entitlement to service connection for eyelid disability, to include styes in the eyes and eyelid swelling, is remanded. 12. Entitlement to service connection for heart disability, to include heart murmur, is remanded. Issues 1-12. The Veteran, and her representative, contends that her disabilities stem from service at Camp Lejeune. In this regard, the Veteran argues that her disabilities are related to contaminated water at Camp LeJeune. See Hearing Transcript at 13 (June 2021). The Veteran also argues that some of her claimed disabilities fit within the criteria as a presumptive disability associated with exposure to contaminated water at Camp Lejeune. Id. at 14. In this regard, the representative raised the argument that the Veteran claimed disabilities, in part or in full, fall within the presumptive criteria for esophageal cancer, kidney cancer, and multiple myeloma. Id. at 4-6. To ensure that VA has met its duty to assist, the claims must be remanded for further development. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the medical evidence of record is inadequate to decide the claims on appeal. First, the record reflects that the Veteran has current disabilities or persistent or recurrent symptoms of a disability. Second, military service personnel records show that the Veteran has qualifying service at Camp Lejeune. Therefore, the Veteran is presumed to have been exposed during such service to the contaminants in the water supply. 38 C.F.R. § 3.307(a)(7)(iii). Thus, the Board finds competent, credible evidence of in-service injury, described as exposure to contaminants in the Camp Lejeune water supply. However, the provisions pertaining to presumptive service connection based on exposure to contaminants in the Camp Lejeune water supply are not applicable here because the claimed conditions are not enumerated diseases listed under 38 C.F.R. § 3.309(f). Even though the disabilities are not presumptive disabilities related to contaminants in the water supply, the Veteran is not precluded from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, given the above, the record indicates that the Veteran has current disabilities or persistent or recurrent symptoms of a disability, and a qualifying in-service injury. However, with exception of entitlement to service connection for renal disability, VA did not obtain medical opinions or examinations in these matters. It is noted that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) 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, (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, (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, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Consequently, given the available evidence and the Veteran's statements and sworn testimony, there is competent evidence of a potential relationship between her disabilities and military service to warrant remand for VA examinations and medical opinions. See McLendon, 20 Vet. App. at 79. The Board observes that the evidence needed to trigger VA's duty to furnish a medical opinion is low. Lastly, with regard to entitlement to service connection for renal disability, VA medical opinion, dated in November 2013, reveals the conclusion that the Veteran's renal disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the VA medical opinion is inadequate as the essential rationale for the opinion is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Here, the opinion is inadequate because it does not reveal a reasoned medical explanation connecting the medical findings to the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). In this regard, the opinion observes that the Veteran has a family history of Horseshoe Kidney, and a history of persistent nausea and gastroparesis since the late 1990s. It further notes that the solvents related to the exposure would not be medically expected to cause delayed renal stone or renal tubular acidosis two decades after the exposure to the solvents. The Board, however, is unable to locate the essential rationale connecting the medical findings to the reached conclusion, and the Board is not competent to substitute its own medical rationale for that of the opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Indeed, much of the opinion, in this instance, reflects medical findings, however, the opinion is absent a reasoned rationale or medical explanation connecting the supporting data to the reached conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). Given the above, the Board may not rely upon the VA medical opinion in its present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. 13. Entitlement to service connection for an acquired psychiatric disorder, to include difficulty sleeping, and PTSD, is remanded. The Veteran, and her representative, contends that her acquired psychiatric disorder stems from an in-service personal assault. See Hearing Transcript at 14 (June 2021). For reasons explained below, the Board finds that remand is necessary. Initially, the Board notes that in personal assault cases, the Secretary of VA has undertaken a special obligation to assist a claimant in producing corroborating evidence of an in-service stressor. In accordance with this special obligation, 38 C.F.R. § 3.304(f)(5) places a heightened burden of notification on VA in claims for service connection for PTSD based on in-service personal assault. First, the agency of original jurisdiction (AOJ) must inform the claimant that he or she may submit alternative forms of evidence, that is, evidence other than service records, to corroborate the account of an in-service assault, and suggest potential sources for such evidence. Id. The claimant should also be notified that, alternatively, evidence of behavioral changes following the alleged in-service assault may constitute credible supporting evidence of the stressor under § 3.304(f)(5). Second, VA must assist the claimant in the submission of alternative sources of evidence, by providing additional time for the claimant to submit such evidence after receipt of the personal-assault letter and, where appropriate, by obtaining evidence on the claimant's behalf. 38 C.F.R. § 3.304(f)(5). Here, the AOJ did not properly develop the claim as it did not properly advise the Veteran notice on alternative sources of evidence that may be submitted in support of the military sexual trauma claim, such as evidence demonstrating behavior changes in service from sources other than service records. See 38 C.F.R. § 3.304(f)(5); see also Gallegos v. Peake, 22 Vet. App. 329 (2008). Therefore, additional evidentiary development is needed before a fully informed decision may be rendered as to this issue. Next, the record reflects a current diagnosis for depression. See CAPRI (September 2012). The record also reveals in-service lay statements detailing symptoms of depression. See STR (December 1981). However, VA did not obtain an examination or medical opinion in this matter, and VA's duty to obtain a VA medical opinion and examination was triggered. McLendon, 20 Vet. App. at 81-82 (evidence needed to trigger VA's duty to furnish an examination is low). Therefore, given the above, there is competent evidence of a potential relationship between the Veteran's depression and her military service to warrant remand for a VA examination and medical opinion. Id. at 79. Lastly, the Board observes that the record indicates that there may be outstanding relevant VA treatment records. In this regard, in February 2021, the Veteran submitted VA Form 21-0845 indicating VA treatment for her acquired psychiatric disorder. See also Medical Treatment Record-Non-Government Facility (August 2021) (revealing that the Veteran has been receiving treatment for her acquired psychiatric disorder for the last two years at VA). However, in this instance, the record does not reveal that the AOJ has obtained the Veteran's complete VA treatment records; and as any complaint or treatment, as related to her claim, with VA is relevant, remand is necessary to associate any outstanding VA treatment records with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Thus, given the above, the Board finds that remand is necessary for further development of the claim. Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Accordingly, any adjudication of the claim at this juncture is unreasonable given the appearance of an incomplete record. Brambley v. Principi, 17 Vet. App. 20 (2003). 14. Entitlement to service connection for a dental disability for compensation purposes is remanded. The Veteran, and her representative, contends that she is entitled to service connection for a dental disability. The Board finds that remand is necessary. Here, the record indicates that there may be relevant outstanding private treatment records. In this regard, in July 2012, the Veteran reported receiving treatment from Hill Top Dental. The record, however, does not show any attempt by VA to obtain private treatment records from Hill Top Dental, to include asking the Veteran to submit an authorization for release of the private treatment records. As these treatment records, if obtained, could bear on the outcome of the Veteran's claim, specific efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Thus, remand is required to allow VA to obtain these records. 15. Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment is remanded. The Board must address all issues explicitly raised by the Veteran or reasonably raised by a liberal reading of the record; consistent with this principle, a claim for service connection for a dental condition for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment. See Mays, 5 Vet. App. 302. The Board further notes that, as to each noncompensable service-connected dental condition, a determination will be made regarding whether it was due to combat wounds or other service trauma. 38 C.F.R. § 3.381(b). The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after the VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). In this case, the record does not reveal that the AOJ referred the claim of service connection for a dental disability for purposes of VA outpatient treatment purposes. As such, the Board finds that a remand is appropriate here. A remand with instructions to the AOJ to refer the claim to the VHA, which the regulation provides must make the initial determination on the claim, will better ensure that the claim is addressed promptly and efficiently, and is, therefore, consistent with the uniquely pro-claimant principles underlying the veterans' benefits system. Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013). 16. Entitlement to a compensable rating for residual scar, appendectomy, is remanded. As indicated above, the record suggests that there may be outstanding VA treatment records. The record, in this regard, reveals that VA treatment records were last obtained by VA in December 2013, over seven years ago, and the record shows that the Veteran has been receiving VA treatment. As any recent complaints or treatment with VA is relevant to determining the current severity of the Veteran's disability, remand is necessary to associate any outstanding VA treatment records with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell, 2 Vet. App. at 613. 17. Entitlement to a TDIU due to service-connected disability is remanded. The Veteran, and her representative, seeks a TDIU due to her claimed disabilities on appeal. The Board finds the Veteran's claim for a TDIU is inextricably intertwined with the claims of entitlement to service connection. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claims. The matters are REMANDED for the following actions: 1. Refer the claim for dental treatment to the appropriate VA Medical Center (VAMC) of the VHA to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. 2. Provide the Veteran with notice of VA's duties to notify and assist under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.304(f)(5). The Veteran should be properly notified of how to substantiate a claim based upon military sexual trauma and informed of alternative sources of evidence that can be used to verify the claimed stressor. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms, diagnosis, and treatment of her claimed disabilities, to include from Hill Top Dental. See Correspondence (July 2012). Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 4. Obtain the Veteran's complete VA treatment records, to include from VAMC Prescott, VAMC Phoenix, VAMC Tucson, and Cottonwood Community Based Outpatient Clinic. 5. Attempt to corroborate the Veteran's in-service stressor(s), including in-service stressor based on military sexual trauma. If more details are needed, contact the Veteran to request the information. 6. Schedule the Veteran for VA examinations by an appropriate clinician(s) to determine the nature and etiology of her (1) renal disability, (2) migraine headaches, (3) gastric disability, (4) gynecological disability, (5) skin disability of the arm, (6) bilateral foot disability, (7) gallbladder disability, (8) thyroid disability, (9) facial disability, (10) disability of the knees, hips, shoulders, arms, and back, (claimed as osteoporosis osteoporosis) (11) eyelid disability, and (12) heart disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician(s). Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any of the above disabilities. NOTE (1): The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about her symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. The clinician must opine on: Renal Disability (a) Whether any renal disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Migraines Headaches Disability (b) Whether any migraine headaches disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Gastric Disability (c) Whether any gastric disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Gynecological Disability (d) Whether any gynecological disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Skin Disability of the Arm (e) Whether any skin disability of the arm at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Bilateral Foot Disability (f) Whether any foot disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Gallbladder Disability (g) Whether any gallbladder disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Thyroid Disability (h) Whether any thyroid disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Facial Disability (i) Whether any facial disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Osteoporosis Disability (j) Whether the Veteran's osteoporosis disability of the knees, hips, shoulders, arms, and back at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Eyelid Disability (k) Whether any eyelid disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. Heart Disability (l) Whether any heart disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease, to include conceded in-service exposure to the contaminants in the water supply at Camp Lejeune. Explain. 7. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. (a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b) If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. Explain. (c) As the Veteran's stressor is based on an in-service personal assault, the examiner must opine whether the evidence of record, including the Veteran's lay statements, statements made by R.T. (the Veteran's spouse), the Veteran's service records, and post service clinical evidence, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD or other acquired psychiatric disorder is at least as likely as not related to the in-service personal assault. Explain. (d) If an acquired psychiatric disorder other than PTSD is diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Explain. 8. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page) 9. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.