Citation Nr: 21069431 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-39 175 DATE: November 18, 2021 ORDER The issue of entitlement to service connection for glaucoma is denied. The issue of entitlement to service connection for lipoma is denied. The issue of entitlement to service connection for multiple myeloma is denied. REMANDED The issue of entitlement to service connection for melanoma is remanded. The issue of entitlement to service connection for a lung condition, to include asthma and bronchitis, is remanded. The issue of entitlement to service connection for lower back pain is remanded. The issue of entitlement to service connection for bilateral leg tingling, to include radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran's glaucoma did not begin in service, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's lipoma did not begin in service, and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran does not have a current diagnosis for multiple myeloma. CONCLUSIONS OF LAW 1. The criteria for service connection for glaucoma are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for lipoma are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for multiple myeloma are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. VETRAN CONTENTIONS The Veteran contends that he strained his back while lifting bridge components as a bridge specialist while in service. He further contends that he did not obtain treatment for lower back pain in service because he was in a war zone and treatment was reserved for those seriously wounded in action. According to the Veteran he sought treatment within one or two years of service. In addition, the Veteran contends that he was exposed to Agent Orange and performed his duties in polluted water which he believes lead to his asthma, bronchitis, tingling in his legs, and multiple myeloma. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army during the Vietnam Era from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). There was an April 2021 Board hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. Service Connection To establish service connection, a showing of competent medical, or in certain circumstances, lay evidence must confirm (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir 2004). Service connection may also be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309(e) when a Veteran was exposed to an herbicide agent, as defined in 38 C.F.R. § 3.307(a)(6), during active-duty service. A Veteran who, during active military service served in the Republic of Vietnam from January 9, 1962 to May 7, 1975 is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran is presumed to have been exposed to an herbicide agent. See 5/8/1974 Certificate of Release from Active Duty (noting Vietnam Service Medal). 1. The issue of entitlement to service connection for glaucoma is denied. VA is obligated to provide an examination when there is competent medical evidence of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has been diagnosed with glaucoma. See 6/21/2017 CAPRI. Notably, there is no competent evidence indicating that the glaucoma is related to service. As such, a medical opinion regarding the Veteran's glaucoma is not required because the record before the Board does not indicate that the disability had a causal connection to, or was associated with, his active military service. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, glaucoma is not a disease subject to presumptive service connection or associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Therefore, entitlement to service connection for glaucoma is not warranted on a direct basis or a presumptive basis due to exposure to an herbicide agent and is hereby denied. 2. The issue of entitlement to service connection for lipoma is denied. The Veteran has been diagnosed with a lateral left chest epidermal cyst and a left shoulder lipoma. See 6/21/2017 CAPRI. However, there is no treatment for either noted in his service treatment records, and his exit examination from active-duty service notes an absence of tumors, growths, or cysts. See 5/18/2015 Service Treatment Record. The Veteran has not indicated why he believes that his lipomas are related to service, and the record does not otherwise contain any competent evidence suggesting that they may be related to service. Thus, a medical opinion regarding the Veteran's lipoma is not required because the record before the Board does not indicate that the disability had a causal connection to, or was associated with, his active military service. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, like glaucoma, lipoma is not a condition or disease subject to presumptive service connection or associated with herbicide exposure. Therefore, entitlement to service connection for lipoma is denied on both a direct and presumptive basis. 3. The issue of entitlement to service connection for multiple myeloma is denied. VA has an obligation to broadly construe claims consistent with a lay claimant's reasonable expectations. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran testified before a decision review hearing that his claim for entitlement to service connection for lipoma was actually a claim for multiple myeloma. See 8/29/2019 Hearing Transcript; 8/29/2019 Deferred Rating. However, the Veteran does not have a diagnosis of multiple myeloma. Furthermore, the Veteran understood multiple myeloma to be a skin condition when it is, in fact, a cancer of the white blood cells. Because no current diagnosis for multiple myeloma exists, VA is not obligated to afford the Veteran an examination and service connection on both a direct and presumptive basis is denied. REASONS FOR REMAND 1. The issue of entitlement to service connection for melanoma is remanded. In keeping with VA's obligation to broadly construe claims, entitlement to service connection for melanoma must be addressed. During the April 2021 Board hearing the Veteran testified that he has had three surgeries to remove melanomas which have resulted in extensive scarring. The Veteran attributes his claimed melanoma to Agent Orange Exposure. Because soft tissue sarcoma is a disease associated with herbicide exposure, remand for a skin examination is needed. 2. The issue of entitlement to service connection for a lung condition, to include asthma and bronchitis, is remanded. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additionally, a thorough and adequate examination must consider all other relevant evidence of record, including lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). An adequate medical opinion does not contain only data and conclusions, "but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Ultimately, if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination reports); Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (inadequate medical evaluation frustrates judicial review). One VA examination was conducted in furtherance of the Veteran's claim for entitlement to service connection for asthma and bronchitis. See 9/24/2019 C&P Examination. However, the resultant opinion was inadequate for VA purposes. The examiner checked a box indicating that the Veteran's asthma and bronchitis clearly and unmistakably existed prior to service and were not aggravated beyond natural progression by an in-service injury, event, or illness. Simultaneously, in formulating her negative nexus determination, the examiner opined that there was no objective evidence of chronic bronchitis noted in the Veteran's service treatment records prior to or during military service and, the Veteran did not take any medication, have current treatment for, nor have current complaints of Asthma and Chronic Bronchitis. The opinion had internal inconsistencies, did not discuss the chronic cough noted in the Veteran's service treatment records, and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion. Thus, it is inadequate and remand for an adequate opinion is required. 3. The issue of entitlement to service connection for lower back pain is remanded. Pain resulting in functional impairment of earning capacity constitutes a disability as contemplated in 38 U.S.C. § 1110, even in the absence of a presently diagnosed condition. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). According to the Veteran, he strained his back while lifting bridge components as a bridge specialist while in service and has experienced lower back pain ever since. However, to establish the presence of a disability pursuant to Saunders, there must be competent evidence, specific to the Veteran, tending to show that his impairment rises to a level that affects earning capacity. Wait v. Wilkie, 33 Vet. App. 8, 17, (2020). Thus, remand to obtain a VA examination to assess the current limitations imposed by the Veteran's lower back pain is needed. Additionally, VA has a duty to assist claimants in obtaining evidence to substantiate their claim and will make reasonable efforts to obtain relevant records not in Federal custody. 38 C.F.R.§ 3.159(c). Likewise, VA has a duty to obtain relevant service medical records, other relevant service records that are held by a government entity, and any other relevant records held by any federal agency. 38 C.F.R. § 3.159(c)(3). The Veteran testified that he received treatment for his lower back pain within two years of active-duty service while he lived in Kentucky. See 4/28/2021 Board Hearing. It is unclear whether he sought treatment through VA or a private provider. Nonetheless, the RO should ascertain where that treatment was provided and make an effort to obtain those records. 4. The issue of entitlement to service connection for bilateral leg tingling, to include radiculopathy is remanded. Two or more issues are inextricably intertwined if one claim could have significant impact on the other. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran testified that when he strained his back in active-duty service, he began experiencing tingling in his back that radiated down both legs. Because the current state of the Veteran's lower back pain is intimately connected to the tingling sensation that radiates down both of his legs, it too must be remanded. The Board notes that a claim for entitlement to service connection for chronic adjustment disorder was originally a part of the rating decision on appeal, but the RO fully resolved it with a grant of service connection. See 8/29/2019 Rating Decision. Thus, that issue is not currently before the Board. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify any outstanding VA and/or private treatment records related to his claim. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with the claims file. Any negative response should be in writing and associated with the claims file 2. After associating all outstanding VA and private treatment records with the claims file, forward the Veteran's claims file to an appropriate clinician to provide a medical opinion regarding the nature and etiology of the Veteran's lower back condition. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please identify any current disability of the lower back. "Current" is defined as any condition identified since the filing of the claim in January 2015 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. (b.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disabilities were incurred in, caused by, or related to service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in January 2015, including Veteran statements that his lower back pain began in service and has continued since. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.). 3. Forward the Veteran's claims file to an appropriate clinician to provide a medical opinion regarding the nature and etiology of the Veteran's bilateral leg tingling. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please identify any current disability of the legs. "Current" is defined as any condition identified since the filing of the claim in January 2015 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. (b.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current leg disabilities were incurred in, caused by, or related to service. (c.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current leg disabilities were proximately caused by his lower back disability. (d.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current leg disabilities were aggravated (worsened beyond natural progression) by lower back disability. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in January 2015, including Veteran statements that his lower leg tingling began in service and has continued since. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.). 4. Forward the Veteran's claims file to an appropriate clinician to provide a medical opinion regarding the nature and etiology of the Veteran's lung condition(s), to include asthma and bronchitis. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please identify any current disability of the lungs. "Current" is defined as any condition identified since the filing of the claim in January 2015 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. (b.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's lung disabilities were incurred in, caused by, or related to service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in January 2015, including Veteran statements. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.). 5. Forward the Veteran's claims file to an appropriate clinician to provide a medical opinion regarding the nature and etiology of the Veteran's skin condition(s), to include melanoma and related scars. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please identify any current disability of the skin. "Current" is defined as any condition identified since the filing of the claim in January 2015 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. (b.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's skin disabilities were incurred in, caused by, or related to service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in January 2015, including Veteran statements. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.