Citation Nr: 21031513 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-39 953 DATE: May 24, 2021 ORDER Service connection for a heart disorder is denied. Service connection for hypertension, claimed as high blood pressure, is denied. Service connection for a disability claimed as rheumatoid arthritis and/or tendonitis is denied. Service connection for prostate cancer is denied. Service connection for an eye disorder, claimed as wearing glasses, is denied. REMANDED Service connection for a back disorder is remanded. Service connection for an acquired psychiatric disorder, claimed as depression, is remanded. FINDINGS OF FACT 1. The Veteran's a heart disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran's disability claimed as rheumatoid arthritis and/or tendonitis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 4. The Veteran's prostate cancer was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease 5. The preponderance of the evidence is against finding that an eye condition, claimed as wearing glasses, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an award of service connection for a disability claimed as rheumatoid arthritis and/or tendonitis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an award service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for an award of service connection for an eye disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1973 to July 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the issue(s) currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial(s) and returned the case to the Board. See May 2020 supplemental statement of the case. Service Connection 1. The matters of entitlement to (1) service connection for a heart disorder; (2) service connection for hypertension; (3) service connection for a disability claimed as rheumatoid arthritis and/or tendonitis; and (4) service connection for prostate cancer are denied. The law and the facts of these four claims are essentially identical and can be addressed together. The Veteran seeks service connection for his heart disorder, his hypertension, a disability claimed as rheumatoid arthritis and/or tendonitis, and his prostate cancer because of his alleged exposure to contaminated water during service. 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). The Veteran has current diagnoses of coronary artery disease (CAD), hypertension, and prostate cancer that are well documented in his VA treatment records. His CAD dates to at least 2003 based on the date of the Veteran's report of a prior stenting procedure before the beginning of his regular treatment at VA treatment facilities in 2010. The earliest evidence of hypertension or high blood pressure in the record is from August 2010. The record also reflects that he was diagnosed with prostate cancer in 2013. The Veteran's claim for rheumatoid arthritis and/or tendonitis is somewhat less clear. The Veteran's VA treatment records do not indicate that he is actively being treated for this condition, but the Veteran has not been entirely clear as to what exactly he is claiming with respect to this condition. Given this vagueness, and the fact that the regional office below treated this disability as identified in the Veteran's treatment records, the Board will concede that the Veteran has the disability to which he is referring. CAD, hypertension, arthritis, and prostate cancer (a malignant tumor) are all enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, these disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive one year, and were not noted in service with attributable continuity of symptomatology. As noted, the earliest any of these disabilities were diagnosed appears to be 2003, which was decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of these conditions during service or within a year of the termination of his service. However, the Veteran does not make that report. Instead, the Veteran, having heard about the contamination of water at Camp Lejeune, North Carolina, reports that the water at the location that he served, Parris Island, South Carolina, "tasted bad," and he believes that his exposure to this water led to the development of his disabilities. Consequently, the record does not contain lay reports of an in-service onset or an onset of symptoms for these conditions within a year of active service for the Board to evaluate. Service connection for these disabilities may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's heart condition, hypertension, or disability claimed as rheumatoid arthritis or tendonitis and an in-service injury, event or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Here, the Veteran alleges that he was exposed to contaminated water during his service that resulted in his conditions. However, there is simply no evidence that the Veteran was exposed to any known contaminated water. The Veteran's understanding that he was exposed to contaminated water is based on VA regulations' provision of presumptive service connection for several conditions for service members who served at Camp Lejeune, North Carolina, a location hundreds of miles away from where the Veteran served in an entirely different state. The Veteran also asserts that he found the water at his service location to be subjectively foul tasting. However, this alone is not sufficient to demonstrate that there was contaminated water that would constitute an in-service injury or circumstance to which these conditions may be plausibly related. Additionally, even if the Veteran's statement that the water was foul tasting was sufficient to establish water contamination, the Veteran lacks the competent medical or other expertise to provide a nexus between these conditions which appeared decades after his service and a temporally distant exposure to unknown and unnamed contaminants. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges that the Veteran has not been afforded VA examinations with respect to these particular claims. However, in the absence of any competent and probative evidence indicating that the claimed disabilities may be associated with service, an examination is not required. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Consequently, where the evidence does not even meet the low threshold requiring a VA examination to complete the duty to assist, the Board finds that the higher evidentiary standard required to establish service connection for these conditions has not been met. Therefore, service connection for a heart disorder, for hypertension, for a disability claimed as rheumatoid arthritis and/or tendonitis, and for prostate cancer is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for an eye disorder is denied. The Veteran contends that his eye conditions are the result of his alleged in-service exposure to contaminated water. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has several current diagnoses related to his eyes, the evidence does not demonstrate that there was an in-service event that led to these conditions. The Veteran's VA treatment records indicate that these conditions began to trouble the Veteran sometime in the 2000s, decades after his service ended. The Veteran does not allege that he had these conditions at or near the time of his service and simply declined to seek earlier treatment. Instead, the Veteran's theory is that he was exposed to contaminated water during his service. This assertion is based on the Veteran having heard about VA regulations that provide presumptive service connection for certain conditions for service members who served at Camp Lejeune, North Carolina. The Veteran recalls that the water where he served, Parris Island, South Carolina, was subjectively foul tasting to him and believes that this is evidence that he also was exposed to contaminated water like service members at Camp Lejeune and that that exposure led to his disabilities. However, there is simply no evidence that the Veteran was exposed to any water born contaminants during his service. There is no record or indication of contamination of the water at Parris Island, South Carolina of which the Veteran or the Board is aware. The Veteran is essentially speculating that the water may have been contaminated based on his recollection that the water was foul tasting. Moreover, even if this were sufficient grounds for finding that the water at Parris Island was contaminated, which it is not, the Veteran lacks sufficient medical or other expertise to provide a nexus between these conditions and such an exposure decades earlier. Jandreau, 492 F.3d at 1377 n.4. The Board acknowledges that the Veteran has not been afforded VA examinations with respect to the claim for service connection for an eye disorder. However, in the absence of any competent and probative evidence indicating that the claimed disability may be associated with service, an examination is not required. McLendon, 20 Vet. App. 79; Waters, 601 F.3d at 1278. Consequently, where the evidence does not even meet the low threshold requiring a VA examination to complete the duty to assist, the Board finds that the higher evidentiary standard required to establish service connection for an eye disorder has not been met. Therefore, service connection for the Veteran's various eye conditions is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Service connection for a back disorder is remanded. A remand is required to clarify an aspect of the recent VA opinion with regard to the Veteran's back disorder. As part of the rationale for opining that it was not at least as likely as not that the Veteran's current back disability (degenerative joint disease of the lumbar spine with osteoporosis) was caused by or related to service, the January 2020 VA examiner indicated that there were no service treatment records remarking of any back injury. However, in January 1973, during the Veteran's service, the Veteran did complain of back pain and attributed it to an old injury. Accordingly, the Board finds that the January 2020 VA opinion is inadequate because it is based on an inaccurate factual premise. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). A remand for an addendum opinion is required. 2. Service connection for an acquired psychiatric disorder is remanded. After further consideration of the evidence, the Board finds that remand is warranted in order to provide the Veteran with a VA psychiatric examination. A September 2010 VA treatment record noted psychiatric diagnosis of anxiety disorder and depressive disorder. See also June 2011 VA treatment record (noting a diagnosis of a mood disorder). During the Veteran's brief service, the Veteran experienced at least two incidents that may be of psychiatric significance, the significant illness of his father and an accident that resulted in the loss of his right index finger which effectively cut off his military service. Based on the foregoing, and in light of the "low threshold" for an examination and medical opinion as announced in McLendon, 20 Vet. App. at 86, the Board finds that remand is required in order to obtain a VA examination and opinion addressing the etiology of any psychiatric condition he may have. The matters are REMANDED for the following actions: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange for the claims file to be reviewed by a VA examiner with appropriate expertise for the purpose of preparing an addendum opinion with respect to the etiology of the Veteran's back disability. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's back disability had its onset in, or is otherwise related to, service, to include his complaints of back pain in January 1973. In this regard, the examiner should consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, did the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or were the Veteran's reports generally inconsistent with medical knowledge or implausible? A complete medical rationale for all opinions expressed must be provided. 3. Arrange to have the Veteran scheduled for a VA examination to help determine the nature and etiology of any acquired psychiatric disorder he may have. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner is requested to note all acquired psychiatric disorders that the Veteran has had since he filed his claim for service connection for a psychiatric disorder in 2016, even if he no longer has any of these disorders. If it is the examiner's opinion that any of the above-referenced psychiatric diagnoses were rendered in error, the examiner should provide an opinion with a rationale as to why this is so. For each diagnosed acquired psychiatric disorder, the examiner is requested to opine as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disorder was incurred in service or is otherwise related to service, to include the illness of the Veteran's father that occurred during service or the Veteran's injury while on leave during service that resulted in the loss of his finger and the termination of his military career. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.