Citation Nr: 21029418 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 12-28 496 DATE: May 13, 2021 ORDER Entitlement to service connection for bipolar disorder is denied. Entitlement to service connection for dry eye syndrome is denied. Entitlement to an initial rating in excess of 50 percent for migraine headaches, to include extraschedular consideration, is denied. REMANDED Entitlement to service connection for a lung disability, to include adhesions of the pleura or lung scar, is remanded. Entitlement to service connection for an ulcer is remanded. Entitlement to service connection for Crohn's disease is remanded. Entitlement to service connection for diverticulosis (claimed as stomach pain) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for residuals of a cholecystectomy is remanded. Entitlement to service connection for kidney stones is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had bipolar disorder, at any time during or approximate to the pendency of the claim. 2. The Veteran's dry eye syndrome did not have onset in service and is not related to service, to include presumed exposure to contaminated water at Camp Lejeune. 3. The Veteran has been assigned a 50 percent rating his migraine headaches, which is the maximum rating allowed for that disability; and his migraine headaches do not present such an exceptional or unusual disability picture as to render the schedular rating criteria inadequate or its application impractical. CONCLUSIONS OF LAW 1. The criteria for service connection for bipolar disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2018); 38 C.F.R. § 3.303 (2020). 2. The criteria for service connection for dry eye syndrome have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2018); 38 C.F.R. § 3.303 (2020). 3. The criteria for an initial rating in excess of 50 percent for migraine headaches, to include extraschedular consideration, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.159, 4.7, 4.124a, Diagnostic Code 8100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Marine Corps from May 1984 to May 1987, with additional service in the Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer at the Board. The Veteran was notified in a May 2020 letter of his options but did not provide a response. As a result, the Board assumes the Veteran does not want another hearing and will proceed accordingly. This case was previously before the Board in February 2015 and September 2020, at which time the issues currently on appeal were remanded for additional development. It has now been returned to the Board for further appellate action. Further, the Board remanded the claims of entitlement to service connection for a back condition and an acquired psychiatric disorder, other than depression, and to include posttraumatic stress disorder (PTSD) and bipolar disorder, and a claim of entitlement to a total disability rating based on individual unemployability (TDIU) in September 2020. In a November 2020 rating decision, the RO granted entitlement to service connection for lumbosacral strain with degenerative spondylosis and chronic shaped wedge at T12 and PTSD with major depressive disorder, and entitlement to a TDIU. As this constitutes full grants of the benefits sought on appeal, the matters are no longer in appellate status. Referred The issue of entitlement to service connection for gout, to include arthritis of the feet, ankles and knees, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, it is referred to the AOJ for appropriate action. Service Connection 1. Bipolar Disorder The Veteran has contended that he has bipolar disorder that is related to his active service, to include as due to contaminated water at Camp Lejeune. He believed his exposure to toxic water "enhanced" his bipolar disorder. Service records show that the Veteran served at Camp Lejeune for more than the required 30 days. VA has conceded that he is presumed to have been exposed to contaminants in the water supply. However, the claimed condition is not a disease that VA has determined to be associated with contaminated water at Camp Lejeune. Therefore, service connection cannot be granted on a presumptive basis. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). If a Veteran is not entitled to service connection on a presumptive basis, service connection may be still established on a facts-found basis with proof of direct causation to the currently diagnosed condition. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service treatment records (STRs) are negative for signs or symptoms of bipolar disorder. The January 2009 psychological examination conducted for Social Security Administration (SSA) disability benefits application purposes only reflected mild major depressive disorder. The 2010 private treatment records for rheumatoid arthritis consultation reflected the Veteran reported a history of bipolar disorder. The April 2011, May 2012, and August 2018 VA contract and VA examination reports and the April 2016 VA addendum opinion did not show a diagnosis of bipolar disorder. The October 2013 opinion by Dr. J.L. and September 2014 medical opinion by Dr. R.E.L. discussed depressive symptoms, but were silent for bipolar disorder. A December 2013 letter acknowledged the Veteran's recent participation in VA's Contamination Water examination. The results of his examination indicated that he had a history of 'Depression' that was attributed with his exposure to contaminated water; bipolar disorder was not listed. The Veteran attested that his VA-treating psychiatrist diagnosed him with bipolar disorder. However, none of his treating psychiatrist, psychologist, or mental health providers have diagnosed him with bipolar disorder. The Board acknowledges the Veteran is competent to report what a practitioner has informed him in support of his claim; however, the preponderance of the evidence is against finding for bipolar disorder. He has not shown the requisite medical knowledge or training to provide a separate medical diagnosis. Jandreau v. Nicholson, 492F.3d1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006). As such, the Board assigns more probative weight to the objective medical evidence. The Board has also considered the 2010 private rheumatologist consultation that noted bipolar disorder. However, the Board assigns little probative weight to that notation, as it is based on the Veteran's report. Here, the Board finds more probative the objective medical findings discussed above, which did not provide such diagnosis. In sum, service connection for bipolar disorder, is not warranted, because there is no clear objective evidence of a current disability at any point during the pendency of the claim. The benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Dry Eye Syndrome The Veteran has asserted that his dry eye syndrome is related to his active service, to include his exposure to contaminated water at Camp Lejeune. As noted above, his exposure to contaminated water has been conceded. However, the condition is not considered a presumptive disease. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Nonetheless, the governing regulations do not preclude the Veteran from establishing service connection with proof of actual direct causation. Combee, 34 F.3d 1039. STRs are silent for complaints of or treatment for an eye condition. The physician's comment section on his May 1987 Report of Medical History indicated 'no medical problems.' Further, the Veteran does not assert, and the evidence does not demonstrate, that the Veteran had dry eye syndrome that occurred during a period of qualifying service. A review of VA treatment records reflected a diagnosis of bilateral dry eye syndrome since at least 2012, over 25 years after his separation from service. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In November 2020, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with bilateral dry eye syndrome. He opined that the Veteran's dry eye syndrome was less likely than not related to service. Specifically, he stated that the Veteran's diagnosis was first noted in 2012. He found the Veteran's dry eye syndrome would not be from the occurrence his presumed exposure to contaminated water. He noted that common causes of decreased tear production included aging and certain medical conditions (such as Sjogren's syndrome, allergic eye disease, rheumatoid arthritis, lupus, scleroderma, sarcoidosis, thyroid disorder, or vitamin A deficiency). Based on the foregoing, the Board finds the November 2020 VA medical opinion highly probative. In this regard, the examiner was an optometrist with the appropriate training, expertise, and knowledge to evaluate the claimed eye disability. The examiner provided a cogent rationale for his findings and opinions, which included consideration of the Veteran's presumed exposure to contaminated water, and the post-service medical history. Moreover, there are no competent medical opinions to the contrary. The Board acknowledges that the Veteran believes his dry eye syndrome is related to his presumed exposure to contaminated water while stationed at Camp Lejeune. While the Veteran is competent to report having experienced symptoms of dry eyes, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of dry eye syndrome. A competent opinion on the matter requires medical knowledge of eye diseases and anatomy of the eye, which are generally beyond the scope of lay knowledge. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. Jandreau, 492 F.3d. at 1377 n.4; Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, the Veteran's lay assertions on the complex medical question before the Board is not competent and have little probative value for satisfying the element of causal nexus. As the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine does not apply. Thus, entitlement to service connection for dry eye syndrome is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Migraine Headaches The Veteran has contended that his migraine headaches are worse than that contemplated by the currently assigned rating. Although a 50 percent rating is the maximum allowable schedular rating for migraine headaches, the Veteran has raised the issue of entitlement to an extraschedular rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100; Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The medical evidence of record, to specifically include the VA examination reports, reflected that the Veteran's migraine headaches were characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board acknowledges the Veteran's lay testimony and his daughter's lay assertions, including that he experienced intense pain, snow blindness, nausea, and/or vomiting approximately six times a month, could not work, became incapacitated, was unable to carry out activities of daily living, and had problems sleeping. Certainly, laypersons are competent to attest to physical symptoms that are experienced or observed. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence does not establish a greater degree of functional impairment than that contemplated by the currently assigned rating. Moreover, the evidence does not show that the Veteran's disability picture for migraine headaches is exceptional or unusual to require an extraschedular evaluation. Significantly, the Board notes that the Veteran's migraine headaches resulted in unemployability. As noted above, a TDIU was granted accordingly. Further, the Board finds that the symptomatology reported by the Veteran and his daughter, and shown on examination is fully contemplated by the applicable rating criteria, and there are no characteristics or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria inapplicable. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. 38 C.F.R. § 3.321(b)(1). Accordingly, the preponderance of the evidence is against the claim for a rating in excess of 50 percent for migraine headaches. Therefore, there is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Service Connection Lung Disability The Veteran has contended that his lung disability, to include adhesions of the pleura or lung scar, is related to his active service or his exposure to contaminated water, conceded above. Specifically, the Veteran testified that he seen for pneumonia or a lung condition while serving in Adak, Alaska; however, it was not documented, and he did not receive any further treatment. In March 2016, the Veteran underwent a VA examination for his lung disability. The examiner indicated that the Veteran had other pulmonary conditions, pertinent physical findings, or scars due to pulmonary conditions. He provided a negative nexus opinion and stated that the Veteran's respiratory condition was an undiagnosed condition. The Board finds the VA medical opinion is inadequate because the examiner's findings regarding a current diagnosis is internally inconsistent and he did not address the Veteran's June 2014 hearing testimony. As such, a new VA examination is warranted. 2. Service Connection Ulcer, Crohn's Disease, Diverticulosis, GERD, Residuals of a Cholecystectomy, and Kidney Stones The Veteran has contended that his currently diagnosed ulcer, Crohn's disease, diverticulosis, GERD, residuals of a cholecystectomy, and kidney stones are related to his active service, to include his exposure to contaminated water at Camp Lejeune. Alternatively, he stated that the claimed disabilities were caused or aggravated by his service-connected migraine headaches or PTSD with major depressive disorder. In March 2016, the Veteran was afforded a VA examination. The examiner provided negative nexus opinions. However, the Board finds the examination is inadequate because of the conflicting medical evidence of record and internal inconsistencies regarding the presence of current disabilities. An additional VA medical opinion was obtained in October 2016. The examiner explained that while a review of his medical records did endorse various abdominal complaints, the Veteran's period of service at Camp Lejeune from December 1985 to May 1987 was after the closure of the affected wells in May 1985. The Board notes that VA has conceded presumed exposure to contaminated water. Therefore, the examiner's rationale is based on an inaccurate factual premise and is inadequate. Finally, the Veteran has not been provided a VA examination for his diverticulosis. On remand, an examination is required for this disability and to address the deficiencies noted for his remaining claimed disabilities. The matters are REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present lung disability, to include adhesions of the pleura or lung scar. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present lung disability, to include adhesions of the pleura or lung scar, is etiologically related to the Veteran's active service. The examiner must specifically discuss the Veteran's lay assertions of pneumonia or lung condition while serving in Alaska and in-service exposure to contaminated water while stationed at Camp Lejeune. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present ulcer, Crohn's disease, diverticulosis, GERD, residuals of cholecystectomy, and kidney stones. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present ulcer, Crohn's disease, diverticulosis, GERD, residuals of cholecystectomy, and kidney stones were etiologically related to the Veteran's active service, to include exposure to water contaminants at Camp Lejeune. The examiner must specifically discuss the Veteran's lay assertions that he experienced and reported gastrointestinal issues during service, urinated blood during service, and his symptoms were a sign of kidney stones. The examiner is advised that a negative opinion cannot be based solely on the fact that the claimed disabilities were not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present ulcer, Crohn's disease, diverticulosis, GERD, residuals of cholecystectomy, and kidney stones were caused or aggravated (chronically worsened) by the Veteran's service-connected migraine headaches or PTSD with major depressive disorder. 4. Confirm the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page) 5. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. D. Ware Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.