Citation Nr: 21024856 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 10-13 527 DATE: April 26, 2021 ORDER Entitlement to service connection for residuals from removal of gallbladder is denied. Entitlement to an effective date earlier than September 8, 2005 for service connection for an acquired psychiatric disorder is dismissed as a matter of law. REMANDED Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for a prostate condition is remanded. Entitlement to service connection for residuals of polyp removal is remanded. Entitlement to service connection for a heart disability, to include as secondary to service-connected psychiatric disorder, is remanded. Entitlement to service connection for hypertensive vascular disease, to include as secondary to service-connected psychiatric disorder, is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to acquired psychiatric disorder, is remanded. Entitlement to service connection for a blood disorder, to include anemia, is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to an effective date earlier than February 9, 2012 for a TDIU is remanded. Entitlement to special monthly compensation based on Aid and Attendance is remanded. Entitlement to an effective date earlier than February 9, 2012 for special monthly compensation based on Housebound status is remanded. FINDINGS OF FACT 1. The medical evidence indicates that the Veteran does not have a current disability of residuals of gallbladder removal. 2. The claim for an earlier effective date (EED) for the grant of service connection for acquired psychiatric disorder is not permissible under the law. CONCLUSIONS OF LAW 1. The criteria for service connection for removal of gallbladder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 2. The claim of entitlement to an effective date earlier than September 8, 2005 for service connection for an acquired psychiatric disorder is dismissed as a matter of law. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from March 1969 to November 1970. In February 2018, the Board remanded the appeal for further development. In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. 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, 1131, 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). 1. Service connection for removal of gallbladder The Veteran contends that his removal of gallbladder and its claimed residuals are due to his period of service. The question for the Board is whether the Veteran has a current disability that began during active duty service or is at least as likely as not related to an in-service injury, event, or disease or to a service-connected disability. The Board concludes that the Veteran does not have a current disability of residuals of gallbladder removal and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Turning to the evidence, in January 2008, the Veteran filed a claim for service connection for residuals of gallbladder removal. In an October 2019 VA examination, the examiner stated that there is no objective or subjective evidence of any residuals status-post cholecystectomy from 2000. Therefore, the examiner concluded that it is less likely than not that the Veteran’s claimed condition is due to his period of service. At a September 2020 Board hearing, the Veteran asserted that he had a chronic bladder condition, but later clarified that he was referring to a chronic balanitis condition. After review of the record, the Board concludes that the Veteran does not have a current disability of residuals of gallbladder removal. The medical evidence of record indicates that the Veteran has not been diagnosed with symptoms consistent with residuals of gallbladder removal since the filing of his January 2018 claim for service connection. Moreover, the Veteran’s lay statements are consistent with the October 2019 VA examination report that there are no subjective complaints for a gallbladder condition. Rather, the condition he later clarified related to his claimed prostate and polyp conditions. The Board finds this evidence probative in nature in that the opinion notes usage of diagnostic testing and the Veteran’s history. Therefore, service connection for residuals subsequent to gallbladder removal is not warranted, and no further analysis is necessary. The Board notes that while the Veteran is competent to report symptoms, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. 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. 2. An effective date earlier than September 8, 2005 for service connection for an acquired psychiatric disorder Once a decision assigning an effective date becomes final, that assignment cannot be challenged through a freestanding claim of entitlement to an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The Board is required to dismiss freestanding claims for entitlement to earlier effective dates. Id.; see also DiCarlo v. Nicholson, 20 Vet. App. 52 (2006) (stating there is no such procedure as a freestanding challenge to the finality of a VA decision). In this case, the Board denied an earlier effective date in a February 2018 Board decision. This is a final Board decision which the June 2018 rating decision implemented. The implementation of a Board decision denying an earlier effective date cannot be appealed from the AOJ. Accordingly, the claim is dismissed. REASONS FOR REMAND 1. Service connection for a right eye disability is remanded. The Veteran contends that his right eye disability is due to his period of service. In an October 2019 VA examination, the examiner opined that it is less likely than not that the Veteran’s right eye disorder is due to his period of service. The examiner explained that the Veteran does not currently have a chalazion or eyelid tumor; rather, he has dermatochalasis of both eyes which is a typical finding in older individuals. The examiner also stated that the Veteran has ptosis of the left eye of unknown etiology and uncertain duration. The examiner noted that the Veteran’s service records are silent for any mention of eyelid disorder or chalazion during service. The examiner reported that his entrance and exit physical examinations state that his eyes are normal. The examiner also reported that there is no available literature that supports dermatochalasis of both eyes or ptosis secondary to chalazion surgery. The examiner stated that any association of the Veteran’s current eyelid disorders to an injury or incident in service would be speculation as there is no evidence in his service records of any eye condition or surgery. At a September 2020 Board hearing, the Veteran asserted that his right eyelid disability may be due to lead and asbestos exposure during service. Though the October 2019 VA examination stated that the Veteran’s disability was not due to his period of service, the opinion does not indicate consideration of exposure to lead or asbestos. The Board notes that the Veteran is currently service-connected for asbestosis. The record established lead and asbestos exposure during the Veteran’s period of active duty service. Therefore, a remand for an addendum opinion is necessary to consider the Veteran’s specific contention of his claimed disability resulting from established lead and asbestos exposure. 2. Service connection for a prostate condition 3. Service connection for residuals of polyp removal The Veteran contends that his prostate condition is due to his period of service. The Veteran also contends that his colon polyps and the residuals of their removal are due to his period of service. Specifically, the Veteran asserts that his prostate condition is caused by his problems with erectile dysfunction and in-service circumcision. The Veteran also contends that his polyps are caused by a problem with “human serum albumin,” that this “disease” first began in service, and that this is demonstrated by blood tests which showed negative acute phase protein. He also has related these polyps to his recently diagnosed prostate cancer. He has frequently referenced a November 4, 1970 test in service in which his serology was found to be rapid plasma reagin non-reactive. In an October 2019 VA examination, the examiner opined that it was less likely than not that the Veteran’s prostate condition is due to his period of service. The examiner noted that the Veteran was diagnosed with prostate cancer and treated with radiation. The examiner noted that, additionally, he has been diagnosed with colon polyps, benign prostatic hypertrophy, and has a history of urinary frequency. The examiner explained that there is no medical relationship of the Veteran’s diagnosis of balanitis during active duty and subsequent diagnosis of benign prostatic hypertrophy and/or prostate cancer. The examiner stated that the medical literature does not support this correlation. The examiner also noted that there is no relationship or predictive value from any finding on a blood test dated November 4, 1970. The examiner reported that there is no specific blood test to this day that predicts the subsequent development of colon polyps. Therefore, the examiner concluded that a nexus is not established. At a September 2020 Board hearing, the Veteran asserted that his prostate condition resulted from his in-service diagnosis of balanitis. The Veteran reported that his exposure to chemicals during service caused his balanitis, which resulted in his circumcision during service. The Veteran also asserted that his colon polyps were due to his exposure to lead paint during service. Though the October 2019 VA examination stated that the Veteran’s disabilities were not due to his period of service, the opinion does not indicate consideration of exposure to lead or asbestos. The Board notes that the Veteran is currently service-connected for asbestosis. The record established lead and asbestos exposure during the Veteran’s period of active duty service. Therefore, a remand for an addendum opinion is necessary to consider the Veteran’s specific contention of his claimed disability resulting from established lead and asbestos exposure. 4. Service connection for a heart disability, to include as secondary to service-connected psychiatric disorder 5. Service connection for hypertensive vascular disease, to include as secondary to service-connected psychiatric disorder The Veteran contends that his heart disability and hypertensive vascular disease are due to his period of service, to include as secondary to service-connected psychiatric disorder, or, in the alternative, due to exposure to lead and asbestos. In an October 2019 VA examination, the examiner opined that it was less likely than not that the Veteran’s heart disability is due to his period of service. The examiner stated that there is no objective evidence in the medical records that the Veteran had any chest pain or any cardiac or vascular diagnosis, to include hypertension during active duty service. The examiner also stated that the Veteran’s diagnoses of hypertension, ischemia, cerebrovascular disease, congestive heart failure, and non-ischemic cardiomyopathy are not medically related to his active duty service, any event during active duty service, or in any way medically related to his service. The examiner explained that the medical literature does not support the asserted relationship between these disabilities and his service. Therefore, the examiner concluded that a nexus is not established. The examiner also opined that it was less likely than not that the Veteran’s heart disability is the result of his service-connected psychiatric disorder. The examiner stated that the two conditions are not medically related. The claimed disorders are separate entities entirely from the service-connected condition and unrelated to it. The medical literature does not support a medical relationship. The examiner noted that the Veteran’s heart disability was less likely than not aggravated by the service-connected psychiatric disorder. The examiner reiterated that the two conditions are not medically related. The examiner stated that the heart conditions are separate entities entirely from the service-connected psychiatric condition and unrelated to it. The examiner noted that the medical literature does not support a medical relationship. Therefore, the examiner concluded that no aggravation is plausible. At a September 2020 Board hearing, the Veteran asserted that his heart disability and hypertensive vascular disease were due to exposure to lead. Though the October 2019 VA examination stated that the Veteran’s disabilities were not due to his period of service, the opinion does not indicate consideration of exposure to lead. Therefore, a remand is necessary for consider the Veteran’s specific contention of his claimed disability resulting from established lead exposure. 6. Service connection for a skin disability is remanded. The Veteran contends that his skin disability is due to his period of service. In an October 2019 VA examination, the examiner opined that it is less likely than not that the Veteran’s skin condition is due to his period of service. The examiner stated that there is no objective evidence in the medical records of any chronic skin condition while the member was in the service. At a September 2020 Board hearing, the Veteran asserted that his skin disability may be due to lead and asbestos exposure during service. Though the October 2019 VA examination stated that the Veteran’s disability was not due to his period of service, the opinion does not indicate consideration of exposure to lead or asbestos. Therefore, a remand is necessary for consider the Veteran’s specific contention of his claimed disability resulting from established lead and asbestos exposure. 7. Service connection for migraines is remanded. The Veteran contends that his migraine disability is due to his period of service. In an October 2019 VA examination, the examiner opined that it is less likely than not that the Veteran’s migraine condition is due to his period of service. The examiner stated that the Veteran’s symptoms are subjective only. The examiner stated that objective examination was normal. The examiner also stated that there is no objective evidence of a chronic peripheral nerve condition while the member was in service. The examiner reported that there is no objective evidence in the service treatment records of a chronic headache or migraine headache diagnosis while on active duty, noting that the Veteran was seen twice for sinus congestion with headache only. The examiner determined that a nexus had not been established. At a September 2020 Board hearing, the Veteran asserted that his migraine disability may be due to lead and asbestos exposure during service. The Board notes that the Veteran is competent to report headaches. Furthermore, the October 2019 VA opinion does not indicate consideration of exposure to lead or asbestos. Therefore, a remand is necessary to consider the Veteran’s specific contention of his claimed disability resulting from established lead and asbestos exposure, or, in the alternative, as secondary to his service-connected psychiatric disability. 8. Service connection for a gastrointestinal disorder The Veteran contends that his gastrointestinal disorder is due to his period of service. In a February 2018 Board decision, the Board directed that the Veteran be afforded a VA examination. The Board instructed that the examiner should address the Veteran’s assertion that he has had stomach problems from the time of his service to the present and the service treatment records showing April 1970 complaints of lower quadrant pain and August 1970 treatment for upset stomach. In an October 2019 VA examination, the examiner stated that it is less likely than not that the Veteran’s gastrointestinal disorder is due to his period of service. The examiner stated that this opinion is based on no objective evidence in the service treatment records of any diagnosis of or complaint of chronic gastritis, GERD or Achalasia status-post esophageal dilation while on active duty. The Board notes that the October 2019 VA opinion does not address the April 1970 and August 1970 complaints in the service treatment records. Moreover, at a September 2020 Board hearing, the Veteran asserted that his gastrointestinal disorder may be due to lead and asbestos exposure during service. Therefore, a remand is necessary for an addendum opinion to address April 1970 complaints of lower quadrant pain and August 1970 treatment for upset stomach, and to consider the Veteran’s specific contention of his claimed disability resulting from established lead and asbestos exposure 9. Service connection for a blood disorder, to include anemia, is remanded. The Veteran contends that he has a blood disorder, to include anemia, that is due to his period of service. In an October 2019 VA examination, the examiner stated that it is less likely than not that the Veteran’s claimed blood condition is due to his period of service. The examiner explained that the Veteran has a history of gastrointestinal bleed several years ago per records secondary to anticoagulation (blood thinner) medication he was taking for an unrelated condition causing his anemia. The examiner stated that there is no further evidence in the records of any gastrointestinal bleed. The examiner noted that the Veteran’s current low hemoglobin is diagnosed as iron deficiency anemia and by definition is secondary to low iron stores and not related to any gastrointestinal condition. The Board notes that the October 2019 VA examination indicates that, though the Veteran’s current anemia is due to iron deficiency, the Veteran had a prior anemia that was related to a gastrointestinal bleed. As the issue of a gastrointestinal disorder is currently on appeal, the issue of service connection for a blood disorder is intertwined, and a decision on this claim cannot be entered until the issue pertaining to the remaining claim of entitlement to service connection for gastrointestinal disorder hs been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 10. Service connection for a sleep disorder The Veteran contends that he has a sleep disorder that is due to his period of service, to include as due to his service-connected psychiatric disorder, or in the alternative, as due to his exposure to lead and asbestos. In a November 2019 examination, the examiner opined that it was less likely than not that the Veteran’s claimed sleep disorder is due to his period of service. The examiner stated that the Veteran does not have a current DSM 5 diagnosis of sleep disorder. The examiner noted that sleep was described as affected by his general medical condition involving frequent nocturnal urination. The examiner went on to state that the Veteran does have unspecified neurocognitive disorder meeting the DSM 5 criteria. The examiner reported that this condition is not related to any known in-service injury or condition and is interpreted as having developed after service had ended. At a September 2020 Board hearing, the Veteran asserted that his sleep condition may be due to lead and asbestos exposure during service. The Board notes that a September 2007 polysomnogram report found that the Veteran had obstructive sleep apnea. The Veteran’s private treatment records also show frequent complaints of insomnia and excessive daytime sleepiness. The November 2019 VA opinion does not address these reports. Rather, it appears that the examiner has interpreted the Veteran’s symptoms as related to a separate and unrelated neurocognitive disorder. Moreover, the November 2019 VA opinion does not indicate consideration of exposure to lead or asbestos. Therefore, a remand is necessary for an addendum opinion to consider the Veteran’s prior diagnosis of sleep apnea and the Veteran’s specific contention of his claimed disability resulting from established lead and asbestos exposure. 11. Service connection for diabetes mellitus is remanded. The Veteran contends that his diabetes is due to his period of service. In an October 2019 VA examination, the examiner opined that it is less likely than not that the Veteran’s diabetes was due to his period of service. The examiner noted that the Veteran did not have a current diagnosis of diabetes. The examiner stated that previous medical records indicate a diagnosis of diabetes mellitus; however, the Veteran lost weight subsequent to this time and no longer meets the diagnostic requirement for diabetes. The examiner reported that all medical treatment for diabetes was discontinued with normal labs. Additionally, the examiner stated that diabetes is a physiological condition with decreased insulin production from the pancreas and no external condition or mental health condition causes diabetes. The examiner stated that a nexus had not been established. At a September 2020 Board hearing, the Veteran asserted that diabetes may be due to lead and asbestos exposure during service. The Board notes that, though the medical evidence indicates that the Veteran does not currently have a diagnosis of diabetes, the Veteran had a diagnosis of record during the appeal period. The October 2019 opinion also does not indicate consideration of exposure to lead or asbestos. Therefore, a remand is necessary for consider the Veteran’s specific contention of his claimed disability resulting from established lead and asbestos exposure. 12. Service connection for peripheral neuropathy is remanded. The Veteran contends that his peripheral neuropathy is due to his period of service. In an October 2019 VA examination, the examiner stated that they were unable to confirm a current chronic diagnosis of peripheral neuropathy with current available records and/or during the current examination. The Board notes that an October 30, 2011 private medical examination indicates that the Veteran had a diagnosis of peripheral neuropathy that may have been due to his diabetes. The Board notes that, though the medical evidence indicates that the Veteran does not currently have a diagnosis of diabetes, the Veteran had diagnoses of diabetes and peripheral neuropathy of record during the appeal period. Moreover, the October 2011 medical record indicates the issues are intertwined. As the issue is intertwined with a remaining issue on appeal, a decision on this claim cannot be entered until the issue pertaining to the claim of entitlement to service connection for diabetes has been resolved. See Harris, 1 Vet. App. at 183. 13. An effective date earlier than February 9, 2012 for a TDIU is remanded. 14. Special monthly compensation based on Aid and Attendance is remanded. 15. An effective date earlier than February 9, 2012 for special monthly compensation based on Housebound status is remanded. The Veteran also asserts that he should be entitled to special monthly compensation on the basis of the need for aid and attendance, special monthly compensation due to housebound status prior to February 9, 2012, and to a total disability evaluation based on individual unemployability due to service-connected disorders prior to February 9, 2012. As these issues are intertwined with the remaining issues on appeal, a decision on these claims cannot be entered until the issues pertaining to the remaining claims of entitlement to service connection have been resolved. See Harris, 1 Vet. App. at 183. The matters are REMANDED for the following action: 1. Send the Veteran’s file to an appropriate examiner(s) to determine the nature and etiology of his claimed right eye disability, prostate condition, residuals of polyp removal, heart disability, hypertensive vascular disease, skin disability, migraine disability, gastrointestinal disorder, sleep disorder, blood disorder, diabetes, and peripheral neuropathy. Schedule examination(s) only if the examiner(s) deems necessary. Examinations may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. After review of the record, the examiner is asked to address the following: a. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s right eye disability is due specifically to exposure to lead and/or asbestos during his period of service. b. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s prostate disability is due specifically to exposure to lead and/or asbestos during his period of service. c. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s residuals of polyp removal are due specifically to exposure to lead and/or asbestos during his period of service. d. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s heart disability is due specifically to exposure to lead and/or asbestos during his period of service. e. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s hypertensive vascular disease is due specifically to exposure to lead and/or asbestos during his period of service. f. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s skin disability is due specifically to exposure to lead and/or asbestos during his period of service. g. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s gastrointestinal disorder is due specifically to exposure to lead and/or asbestos during his period of service. In making this determination, the examiner should consider and discuss the April 1970 service treatment record complaints of lower quadrant pain and the August 1970 service treatment record noting treatment for upset stomach. h. If the examiner determines that the Veteran’s claimed gastrointestinal disorder is related to his exposure to lead and/or asbestos, the examiner is asked to determine whether it is at least as likely as not that the Veteran’s blood disorder, to include anemia, is due to or aggravated by his gastrointestinal disorder. In doing so, the examiner should note that it is not enough to conclude that the Veteran currently has no diagnosis of a blood disorder. Rather, the examiner must determine if the Veteran had a blood disorder at any point since January 2008 that is due to his gastrointestinal disorder. If the examiner determines that the Veteran’s gastrointestinal disorder is NOT related to exposure to lead and/or asbestos, the examiner is asked to determine whether it is whether it is at least as likely as not (50 percent or greater) that the Veteran’s blood disorder, to include anemia, is due specifically to exposure to lead and/or asbestos during his period of service. i. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s sleep disorder is due specifically to exposure to lead and/or asbestos during his period of service. In making this determination, the examiner should consider and discuss the September 2007 polysomnogram report diagnosing the Veteran with sleep apnea. j. Determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s diabetes is due specifically to exposure to lead and/or asbestos during his period of service. In doing so, the examiner should note that it is not enough to conclude that the Veteran currently has no diagnosis of diabetes. Rather, the examiner must determine if the Veteran had diabetes at any point since January 2008 that is due to his exposure to lead and/or asbestos. k. If the examiner determines that the Veteran’s diabetes is at least as likely as not due to his exposure to lead and/or asbestos, the examiner is asked to determine whether it is at least as likely as not that the Veteran’s peripheral neuropathy, is due to or aggravated by his diabetes. In doing so, the examiner should note that it is not enough to conclude that the Veteran does not have a current diagnosis of peripheral neuropathy. Rather, the examiner must determine if the Veteran had peripheral neuropathy at any point since January 2008 that is due to his diabetes. The examiner should review and discuss the October 2011 private medical record regarding the Veteran’s peripheral neuropathy complaint and diagnosis in making this determination. If the examiner determines that the Veteran’s diabetes is NOT due to exposure to lead and/or asbestos, the examiner is asked to determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s peripheral neuropathy is due specifically to exposure to lead and asbestos during his period of service. In doing so, the examiner should note that it is not enough to conclude that the Veteran does not have a current diagnosis of peripheral neuropathy. Rather, the examiner must determine if the Veteran had peripheral neuropathy at any point since January 2008. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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.