Citation Nr: 21019828 Decision Date: 04/05/21 Archive Date: 04/05/21 DOCKET NO. 20-09 875 DATE: April 5, 2021 ORDER Entitlement to service connection for disabilities of the bilateral legs and knees is denied. Entitlement to service connection for edema of the legs is denied. Entitlement to service connection for left foot hammer toe and drop foot is denied. Entitlement to service connection for kidney stones is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for Parkinson’s disease is remanded. Entitlement to service connection for peptic ulcer disease is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has right and left leg and knee disorders related to active service or events therein; and there is no evidence of right and left leg or knee arthritis manifested to a compensable degree within one year following discharge from active service. 2. The preponderance of the evidence is against finding that the Veteran has leg edema that is related to active service or events therein. 3. The preponderance of the evidence is against finding that the Veteran has left foot hammer toe and drop foot related to active service or events therein. 4. The preponderance of the evidence is against finding that the Veteran has kidney stones related to active service or events therein; and there is no evidence of calculi of the kidney manifested to a compensable degree within one year following discharge from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right and left leg and knee disorders have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for edema of the legs have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for service connection for left foot hammer toe and drop foot have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. 4. The criteria for service connection for kidney stones have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. In November 2019, VA furnished a statement of the case addressing an appealed issue to establish service connection for bilateral hearing loss. The Board acknowledges that this issue was listed on the VA Form 9 received in February 2020; however, this filing is not timely as to this issue and it is not for consideration herein. During the appeal period, the Veteran submitted lay statements indicating he had athlete’s foot during service. This issue has not been adjudicated by the agency of original jurisdiction (AOJ) and is not for consideration at the present time. The appellant is advised that if he wishes to submit a claim for service connection for athlete’s foot, he should do so on the prescribed form. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Regarding the service connection claims denied herein, the Board acknowledges that the Veteran has not been provided VA examinations. The Board has considered his December 2018 request for examinations, but on review the record does not contain credible evidence indicating that the claimed disorders may be associated with service and the duty to assist by providing an examination is not triggered. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The Veteran’s own conclusory generalized lay statement that a service event or illness caused his current condition is insufficient to require an examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Entitlement to service connection for right and left leg and knee disorders Entitlement to service connection for leg edema In November 2018, VA denied service connection for legs and knees and for edema on the legs. The Veteran disagreed with the decision and perfected this appeal. In his September 2018 claim, the Veteran reported his legs and knees were very painful and he attributed this to basic training where he had to carry a full pack on a forced march. He also indicated the leg edema was from marching and being on his feet too long. In his notice of disagreement, he reported that his legs do not work so well anymore, and he spends hours in an electric wheelchair. In a December 2018 statement, he stated that the edema in his legs was caused during service by putting a strain on his knees and legs when working on landing craft. VA and private medical records indicate lower extremity edema. VA records also note bilateral knee osteoarthritis. Thus, there is evidence of current disability. Service treatment records are negative for complaints or findings related to the legs and knees. On separation examination in October 1968, the Veteran’s lower extremities were reported as normal on clinical evaluation. On the associated report of medical history, the Veteran denied having or having had leg cramps, bone, joint or other deformity, lameness, or a “trick” or locked knee. On review, there are no findings of a chronic leg or knee disorder to include edema during active service and there is no evidence of leg or knee arthritis manifested to a compensable degree within one year following discharge from active service. There is also no probative evidence relating any current disability of the legs or knees, to include edema, to active service or events therein. In making this determination, the Board acknowledges the Veteran’s contentions, but he has not shown that he has the medical training, experience, or expertise to be competent to provide a medical etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran’s unsupported lay statements are insufficient to establish in-service onset, nexus, or trigger VA’s duty to assist by providing a VA examination and/or obtaining a medical nexus opinion. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The preponderance of the evidence is against the appealed issues and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. In light of above, the appealed issues are denied. Entitlement to service connection for left foot hammer toe and drop foot In November 2018, VA denied service connection for left foot hammer toe and drop foot. The Veteran disagreed with the decision and perfected the current appeal. In his September 2018 claim, the Veteran asserted that these disabilities were due to marching. In a December 2018 statement, he stated that if he removed his shoes and socks that anyone could see his toes were not right and they cross over the big toe. The Veteran is competent to report what his toes look like. Layno v. Brown, 6 Vet. App. 465, 470 (1994). VA records indicate the Veteran has diminished sensation in his feet and that he has an ankle foot orthosis (AFO) on the left. For purposes of this decision, the Board finds evidence of current disability. On induction examination in March 1966, the Veteran’s feet were reported as abnormal on clinical evaluation. Specifically, he was shown to have pes planus. Hammer toes or neurologic abnormalities of the left foot were not noted on examination and he is presumed sound as to the claimed disorders. See 38 C.F.R. § 3.304(b). Service treatment records do not show complaints or findings of hammer toes or drop foot. On separation examination in October 1968, the Veteran’s feet were reported as normal on clinical evaluation. On the associated report of medical history, he reported foot trouble which was described as “[a]thlete’s foot”. On review, there is simply no evidence of the claimed conditions during service or for many years thereafter. There is also no probative evidence relating left foot hammer toe or drop foot to active service or events therein. In making this determination, the Board acknowledges the Veteran’s contentions, but he has not shown that he has the medical training, experience, or expertise to be competent to provide a medical etiology opinion. See Jandreau. The Veteran’s unsupported lay statements are insufficient to establish in-service onset, nexus, or trigger VA’s duty to assist by providing a VA examination and/or obtaining a medical nexus opinion. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The preponderance of the evidence is against the appealed issue and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. In light of above, the appealed issue is denied. Entitlement to service connection for kidney stones In November 2018, VA denied service connection for kidney stones. The Veteran disagreed with the decision and perfected this appeal. The Veteran generally contends that his kidney stones are related to service but in his claim and a September 2018 statement, he indicated the reason for the kidney stones was unknown. In a December 2018 statement, he indicated that the condition for multiple kidney stones should have been confirmed in his medical records and buddy statement. VA and private medical records note recurrent kidney stones and calculus of the kidney. Thus, there is evidence of current disability. Service treatment records are negative for complaints or findings related to the kidneys. On separation examination in October 1968, the Veteran’s genitourinary system was reported as normal on clinical evaluation. Urinalysis showed mucous threads, but no hematuria was noted. On the associated report of medical history, he denied having or having had kidney stones or blood in the urine. He did report having a problem with hemorrhoids. In an October 2018 statement, C.T. indicated that he served with the Veteran and he remembered him going on sick call because his stomach hurt, and he was passing blood. On review, there is no evidence of kidney stones during service and no evidence of calculi of the kidney manifested to a compensable degree within one year following discharge from active service. There is also no probative evidence relating current kidney stones to active service or events therein. In making this determination, the Board has considered the statements and contentions from the Veteran and his buddy. There is no indication that either has the medical training, experience, or expertise to be competent to diagnose kidney stones or provide a medical etiology opinion. See Jandreau. The Veteran’s unsupported lay statements are insufficient to establish in-service onset, nexus, or trigger VA’s duty to assist by providing a VA examination and/or obtaining a medical nexus opinion. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The preponderance of the evidence is against the appealed issue and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. In light of above, the appealed issue is denied. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disorder In November 2018, VA denied service connection for a back fusion and lumbar pains. The Veteran disagreed with the decision and perfected this appeal. In his September 2018 claim, the Veteran indicated that he worked with heavy equipment during service and that his back fusions at L3, L4, and S1 were due to injury of picking up too much weight. In a September 2018 statement, the Veteran reported that his back has been having problems ever since the military put him on duty with heavy equipment and he has now had three fusions on his back. In his notice of disagreement, the Veteran reported that during service he was required to lift and install many very heavy parts on landing craft. He believed that this activity as well as other daily duties caused his back problem. Service treatment records are negative for complaints or findings related to the low back. The Veteran, however, is competent to report that he engaged in heavy lifting during service. See Layno. Service personnel records include a record of assignments which shows he was a harbor craft boatswain, amphibious operator, cargo handler, and crane-shovel operator. His reports of heavy lifting appear consistent with the circumstances of his service. VA records indicate that the Veteran has had multiple back surgeries with the last one being in March 2016 by a private provider. Records pertaining to post-service back surgeries are not contained in the claims folder and the Veteran should be asked to identify these records and submit an authorization for their release. 38 C.F.R. § 3.159(c)(1). On review, the record contains evidence of current disability. There is also evidence of an event during service (i.e., heavy lifting). The Veteran is competent to report back problems since the military and his statements indicate that current disability may be related to same. Accordingly, the Board finds that a VA examination is warranted. 38 C.F.R. § 3.159(c)(4); McLendon. Entitlement to service connection for Parkinson’s disease In November 2018, VA denied service connection for Parkinson’s disease. The Veteran disagreed with the decision and perfected this appeal. In his September 2018 claim, the Veteran related his Parkinson’s to duty at Fort Eustis and Fort Story. In a December 2018 statement, he reported that he was exposed to Agent Orange on the perimeter at Fort Story. In January 2020, he reported that he worked on heavy equipment that had been in Vietnam. Medical evidence shows the Veteran has Parkinson’s disease. This disorder is listed as a disease associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). On review, there is no indication that VA made any efforts to verify the Veteran’s alleged Agent Orange exposure. This should be accomplished on remand. Entitlement to service connection for peptic ulcer disease In November 2018, VA denied service connection for peptic ulcers. The Veteran disagreed with the decision and perfected this appeal. The Veteran generally contends that the stress he experienced in service caused his ulcers. He reported being seen in sick call for acid reflux and treated with Mylanta. He submitted a buddy statement which corroborates his reports. Service treatment records dated in August 1967 show the Veteran was seen for classical peptic ulcer syndrome and treated with bland diet and medications to include Mylanta. Service personnel records include a profile and assignment limitations (bland diet and separate rations). On report of medical history completed at separation in October 1968, the Veteran reported stomach trouble which the examiner described as “peptic ulcer syndrome - not present now”. The Veteran underwent a VA esophageal conditions examination in February 2019. The examiner stated that the medication prescribed in service was used to reduce stomach acid in people with ulcers. There was no documentation that he had a full-blown ulcer or gastrointestinal (GI) bleed from an ulcer, but he did have gastroesophageal reflux disease (GERD) and the currently diagnosed GERD was at least as likely as not related to service. Service connection was subsequently granted for GERD. The Veteran is competent to report his symptoms, but it is unclear whether he currently has peptic ulcer disease related to his complaints during active service. He has not been afforded a VA examination specific to ulcers and this should be accomplished. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for post-service treatment related to his lumbar spine. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any lumbar spine disorder. The examiner must review the claims file. The examiner is asked to identify all lumbar spine disorders. For each disability identified, the examiner should opine as to whether it is at least as likely as not related to active service or events therein, to include heavy lifting. In providing the opinion, the examiner should consider the Veteran’s description of in-service heavy lifting and back problems since discharge. If there is any medical reason to accept or reject his reports, this should be noted. Stated another way, do the Veteran’s reports align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). 3. Attempt to verify the Veteran’s reported in-service exposure to herbicide agents. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service herbicide agent exposure. 4. Schedule the Veteran for a VA examination for his claimed peptic ulcers. The examiner must review the claims file. The examiner is requested to indicate whether the Veteran has had a diagnosis of peptic ulcer disease at any time during the pendency of the appeal or recent to the filing of the claim in August 2018. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. The examiner is asked to provide an opinion as to whether it is at least as likely as not that any current peptic ulcers began during or are otherwise related to active service, to include the classical peptic ulcer syndrome diagnosed in August 1967. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, 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.