Citation Nr: 21023419 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-04 159 DATE: April 20, 2021 ORDER Entitlement to service connection for urethritis is denied. Entitlement to service connection for a skin disorder, to include dermatitis, is denied. Entitlement to service connection for sinusitis is denied. Entitlement to service connection for a disability manifested by photophobia is denied. Entitlement to service connection for bone spurs is denied. Entitlement to service connection for a sleep disorder, to include as due to service-connected tinnitus, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a gastrointestinal or gastroesophageal disability is remanded. FINDINGS OF FACT 1. The evidence is against finding that the Veteran has had urethritis, a skin disorder, sinusitis, or a disability manifesting as photophobia at any time during or approximate to the pendency of the claim. 2. The evidence is against finding that the Veteran’s bone spurs began during active service or are otherwise related to an in-service event, injury, or disease. 3. The evidence is against finding that the Veteran has a sleep disorder that began during active service, is otherwise related to an in-service event, injury or disease, or is caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for urethritis have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a skin disorder have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for sinusitis have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a disability manifested by photophobia have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for bone spurs have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a sleep disorder have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1969 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before he Board in March 2020, where it was remanded for additional development. The Veteran testified at a hearing before the undersigned Veterans Law Judge November 2019. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, 38 C.F.R. § 3.309(e) provides that veterans who have been exposed to an herbicide agent during active service – including “Agent Orange” – are entitled to presumptive service connection for certain listed diseases. Veterans who served specifically in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court’s holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008). In doing so, the Federal Circuit found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they ‘served in the Republic of Vietnam,’ regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam.” Id. at 1380-81. Subsequently, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019, which codified the Procopio holding and extends the presumption of herbicide exposure to those veterans who served in the territorial sea of the “Republic of Vietnam,” as defined in 38 U.S.C. § 1116A. Here, subsequent to the Board’s last remand, the RO confirmed the Veteran’s service in the territorial sea of the Republic of Vietnam. Thus, herbicide agent exposure is presumed. Additionally, VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to contaminated drinking water with volatile organic compounds (VOCs). See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). As the Veteran’s military personnel record reflects that he served at Camp Lejeune during the relevant period, exposure to contaminated drinking water is also presumed. 1. Urethritis, skin, sinusitis, and photophobia disabilities. The Veteran has asserted in various statements and during his hearing before the undersigned that he has urethritis, dermatitis, sinusitis, and photophobia disabilities that began in service and have continued since. The Board concludes, however, that the Veteran does not have current diagnoses of these purported disabilities for service connection purposes at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to his urethritis claim, the Veteran was afforded a VA urinary tract examination in August 2020. While a history of in-service urethritis was acknowledged, the examiner found that this had resolved and that there were no current residuals. Specifically, the Veteran’s in-service episode was a gonococcal infection that was treated at the time with appropriate antibiotics. While the Veteran reported sporadic urinary symptoms since service, he was asymptomatic upon examination and the examiner did not associate any such symptoms with his in-service urethritis. While a minimal voiding dysfunction was reported by the Veteran, it was noted to be associated with excess water intake. The private treatment records that the Veteran has submitted are negative for any genitourinary issues or complaints. As to his skin disability claim, the Veteran reported to a VA examiner in October 2020 that he developed a skin condition in his groin area in service. Of particular note, the Veteran reported that this in-service skin condition was no longer an issue, and physical examination revealed no current skin condition. His lay statements submitted in support of his claim do not suggest any chronic skin condition that began and continued after service, and his available private treatment records are negative for evidence of such. Although the Veteran was treated by Dr. E.H. for a rash on his arms in March 2019, this appears to have been an acute case of chicken pox unrelated to any in-service skin condition. As to his sinusitis claim, while the Veteran reported headache pain, he denied any symptoms attributable specifically to sinusitis or any other nose, throat, larynx, or pharynx condition. The examiner specifically opined that the Veteran’s subjective and objective symptoms “do not warrant a sinusitis diagnosis and/or diagnosis related to the sinuses.” No other medical record, including his private records, indicates any chronic sinusitis or similar condition at any point during the pendency of the claim or recent to the filing of the claim. Finally, as to the Veteran’s claim that he suffers from photophobia that was first diagnosed in service, the medical record during the appeal is absent such a condition or any condition manifesting photophobia. While review of his VA treatment records notes that the Veteran was referred to a VA eye clinic in May 2013 when he first sought VA medical treatment, it was due to the fact that the Veteran had not had an eye examination in years rather than for any specific eye complaint. It also does not appear that he attended any subsequent eye clinic appointment or sought any further treatment for a vision problem. Further, he has not provided any private treatment records pertaining to his eyes. While he has asserted that he has been treated for photophobia by Dr. E.H., a review of the submitted medical records from this practice identify no vision disability or complaints. The Board does note that a VA mental disorders examination was afforded in October 2020 where the examiner did provide an etiological opinion as to his photophobia claim, since such a symptom can be evidence of a neurobehavioral disorder. The examiner opined that the Veteran does not have a diagnosis of a disability manifested by photophobia that is at least as likely as not incurred in or caused his military service, to include any environmental exposure, explaining that although the Veteran wears tinted glasses when he works outside, he did not describe significant symptoms consistent with photophobia and that any light sensitivity does not affect him significantly. The Veteran was not averse to normal light during the examination, did not demonstrate a pain or fear reaction to light, and did not report a work history of being negatively affected by exposure to light. Based on the foregoing, in the absence of probative medical evidence of current disabilities, the Veteran’s service connection claims for urethritis, a skin disorder, sinusitis, and a disability manifesting photophobia must be denied. The Board acknowledges that the Veteran believes he has current diagnoses of these disabilities. However, as a lay person he is not competent to provide a diagnosis of his purported disabilities in this case. These issues are medically complex, as it requires specialized medical knowledge and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board acknowledges the February 2015 opinion provided by Dr. E.H. that he is treating the Veteran for “all of the ailments” that he claims (except any eye treatments) and that, because of his small stature, the rigorous training he received in the military, and the association with certain chemical agents, it is at least as likely as not that “this type of training and other mitigating conditions may have accelerated the normal wear and tear of his musculoskeletal system and aggravated the other ailments.” However, as this opinion does not reference any specific condition or review of the Veteran’s service treatment records (STRs), it is of no probative weight. The Board also acknowledges the holdings in Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (finding pain resulting in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability) and, most recently, Martinez-Bodon v. Wilkie, No. 18-3721 (Fed. Cir. 2020) (finding that the holding that Saunders is not limited to pain alone, but rather, the definition of “disability” in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any condition that results in functional impairment of earning capacity). However, the record is absent any competent indication that any purported skin, sinusitis, urethritis, or photophobia condition results in any functional impairment. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a current disability. See 38 U.S.C. § 1131. Thus, in the absence of proof of current diagnoses or functional impairment related to these claimed disabilities, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Bone spurs. The Veteran has a current foot disability, with bone spurs identified in his left foot upon VA examination and X-ray imaging in October 2020. He reported at his Board hearing that that he has had foot pain since service. The Board notes at the outset that the record does not suggest, nor has the Veteran asserted, that any bone deformity in the feet might be related to herbicide agent exposure. The Veteran’s STRs show no complaints, diagnosis, or treatment related to a foot disability, despite his assertions to the October 2020 VA examination that foot pain began in service. As the Veteran reported other ailments during service, and as foot problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with his feet during service the Board would expect that he would have reported these problems to medical professionals. During the September 1972 separation examination, the feet were not noted to be abnormal. Post-service, a foot disability is not shown by medical evidence until the Veteran presented for his VA examination in 2020. During a May 2013 VA medical appointment for the purposes of establishing VA medical care, the Veterans feet were noted to be normal, and while he reported other medical concerns at the time, he reported no problems with his feet. Further, while private treatment records from Dr. E.H. note a history of a number of ailments, there are no records related to foot concerns. As a chronic foot disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of burn spurs is not shown, in-service incurrence of the Veteran’s current bone spur disability cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s physical examination at separation from service. The Board finds this physical examination at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Again, the Veteran presented for a VA examination in October 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the Veteran’s bone spurs are less likely than not incurred in or caused by his military service. In support of this conclusion, the examiner explained that there is no evidence of a foot condition, to include left foot bone spurs, in his STRs or in the years following his military service. While the Board acknowledges that the examiner indicated that records from the Veteran’s private physician, Dr. E.H., were not available for her review, as the Board noted above these records are silent for any foot condition or complaints. Additionally, a VA examiner who is a subject matter expert in cases dealing with exposure to contaminated water while stationed at Camp Lejeune provided a separate opinion in August 2020 that the Veteran’s bone spurs are not related to such exposure. The examiner explained that the Veteran was stationed at Camp Lejeune for two months and twenty five days. This short duration of exposure to low levels of solvents in the drinking water at Camp Lejeune, he continued, has not been found to increase the risk of bone spurs in the medical literature. Rather, the examiner found that the Veteran has some personal risk factors that put him at increased risk of developing bone spurs, which outweighed his environmental risk from exposure at Camp Lejeune, noting that he worked for the post-office for 17 years and that the repetitive motion on the job increased the risk for bone spurs. The Board finds the above opinions, as a whole, to be highly probative as they were made by medical professionals with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other evidence of record, to include an absence of a complaint of bone spurs until the filing of the service connection claim. There is also no medical opinion or competent and credible evidence in significant conflict with the above, to include the February 2015 opinion provided by Dr. E.H. that he is treating the Veteran for “all of the ailments” that he claims and that, because of his small stature, the rigorous training he received in the military, and the association with certain chemical agents, it is at least as likely as not that “this type of training and other mitigating conditions may have accelerated the normal wear and tear of his musculoskeletal system and aggravated the other ailments.” However, as this opinion does not reference any specific condition or suggest that the Veteran’s STRs were reviewed, it is of no probative weight. Notably, a foot disorder is not shown in Dr. E.H.’s records. For the above reasons, the preponderance of the evidence is against the claim and service connection for bone spurs is denied. 3. Sleep disorder. The Veteran has a current sleep disorder – specifically, insomnia – noted in his private treatment records from Dr. E.H during the appeal. The Veteran’s STRs show no complaints, diagnosis, or treatment related to insomnia. However, the Veteran has suggested, including during his Board hearing, that his insomnia is related to his service-connected tinnitus. A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Veteran presented for a VA audiological examination in May 2014, January 2017 and November 2019 for the purposes of separate service connection claims for hearing loss and tinnitus that are not the subject of this appeal. The Board notes, however, that although he reported constant tinnitus on a daily basis, when asked about the impact of tinnitus on his life he did not report any impairment in his sleep during any of these examinations. If tinnitus was affecting sleep, the Board would expect a reasonable person to report this during an examination when asked about the effect and impact of the tinnitus. At a VA mental disorders examination in June 2014, the Veteran was diagnosed with an anxiety disorder with chronic sleep impairment. He reported that when he does try to sleep, he lies awake listening to the noises in his home that he cannot turn off. After interview and examination, the examiner opined that the Veteran’s reported sleep deprivation disorder was less likely than not due to or the result of his tinnitus, attributing his sleep impairment to circadian rhythm changes and anxious rumination. At an additional VA mental disorders examination in October 2020, while he reported chronic sleep impairment, the examination report specifically notes that the Veteran did not describe tinnitus as causing any issues with his sleep. The Board recognizes that neither VA examiner specifically used the word “aggravation” when opining that the Veteran’s insomnia was due to his tinnitus. However, when read as a whole, the Board interprets the opinions as being negative to both causation and aggravation in terms of secondary service connection. The June 2014 examiner explained that the Veteran’s sleep disturbances involved rumination over a lack of a sense of certain securities, with no actual complaints of tinnitus affecting his sleep pattern in any way. Absent such complaints, the rationales support a finding that the sleep impairment has not been caused or aggravated by his tinnitus. To the extent he has made such assertions in various lay statements, they are in conflict with his reports to medical providers. Finally, while the Veteran has not asserted that he has insomnia due to contaminated drinking water at Camp Lejeune, an August 2020 opinion is nevertheless of record from a VA subject matter expert who opined that the Veteran’s reported insomnia is not related to such exposure. The examiner explained that there was inadequate/insufficient evidence to determine whether an association exists between chronic exposure to the contaminates in Camp Lejeune’s drinking water during the Veteran’s short duration there and neurobehavioral conditions such as insomnia (as well as his purported photophobia). Chronic neurobehavioral effects such as insomnia, the examiner continued, are only found in individuals who first experienced acute effects of solvent exposure. Since the Veteran did not experience any acute neurobehavioral effects of exposure to contaminated water at Camp Lejeune during service or within a year after service, it is extremely unlikely that any neurobehavioral conditions are related to such exposure. Rather, his insomnia is more likely related to the anxiety disorder and the Veteran’s personal financial insecurity. The Board finds the above opinions, as a whole, to be highly probative as they were made by medical professionals with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other medical evidence of record, including an absence of insomnia until decades after service, or any complaints of tinnitus-related insomnia to any medical provider. There is also no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. While the Board again acknowledges the positive opinion provided by Dr. E.H, in February 2015, as noted previously this opinion is of no probative weight as it does not reference any specific condition or suggest that the Veteran’s STRs were reviewed. For the above reasons, the preponderance of the evidence is against the claim and service connection for insomnia, to include as secondary to tinnitus, must be denied. Regarding all of the service connection claims denied above, the Board has considered the Veteran’s statements, to include his assertions that his claimed disabilities are related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson (i.e., foot pain and sleep impairment) (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While the Board regrets further delay, the Veteran’s hypertension and gastrointestinal/gastroesophageal disability claims must be remanded for additional development. The record reflects that the Veteran has current disabilities, with VA examination in 2020 diagnosing a gastric ulcer and gastroesophageal reflux disease (GERD), as well as hypertension. While the Veteran’s STRs are negative for evidence of gastroesophageal issues or elevated blood pressure, the Veteran has asserted that these disabilities were caused or aggravated by his exposure to herbicide agents in the Republic of Vietnam and/or contaminated water at Camp Lejeune. However, while a VA examiner in August 2020 provided an opinion with sufficient rationale regarding any relationship between these disabilities and contaminated water at Camp Lejeune, the Board finds the opinions of record regarding herbicide agent exposure to be incomplete. Specifically, in providing a negative opinion, the examiner merely stated that the Veteran’s claimed disabilities are not one of the enumerated diseases for which the presumptive service connection provisions of 38 C.F.R. § 3.307(a)(6) and § 3.309(e) applies. No opinion was provided as to service connection on a direct basis, however. Thus, the claims must be remanded for an addendum opinion that address any direct relationship between herbicide agent exposure and the Veteran’s hypertension and gastrointestinal/ gastroesophageal disabilities. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify any outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension onset during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. The need for an examination is left to the examiner’s discretion. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. The Board acknowledges that hypertension is not subject to the presumptive service connection provisions of 38 C.F.R. § 3.309(e); however, this does not preclude an award of service connection on a direct basis. Therefore, any opinion regarding the relationship between herbicide agent exposure and hypertension that simply states that a disease or disorder is not one of the enumerated diseases subject to presumptive service connection will not suffice. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current gastrointestinal/gastroesophageal disability, to include a gastric ulcer and GERD, onset during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. The need for an examination is left to the examiner’s discretion. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. (Continued on the next page.) The Board acknowledges that these disabilities are not subject to the presumptive service connection provisions of 38 C.F.R. § 3.309(e); however, this does not preclude an award of service connection on a direct basis. Therefore, any opinion regarding the relationship between herbicide agent exposure and any current gastroesophageal disability that simply states that a disease or disorder is not one of the enumerated diseases subject to presumptive service connection will not suffice. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.