Citation Nr: 21031917 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-31 304 DATE: May 25, 2021 ORDER Entitlement to service connection for ischemic heart disease is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder to include, irritable bowel syndrome (IBS), Crohn's, and ulcerative colitis, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for a thyroid disorder is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for a disorder of the bladder and/or urinary tract is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had ischemic heart disease at any time during, or approximate to, the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1966 to June 1969. He also had service in the Army National Guard. His decorations include the Purple Heart and the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2014, and January 2019 Rating Decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in August 2020, when it was remanded to the agency of original jurisdiction (AOJ) for review of additional evidence. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In February 2021, the Board wrote the Veteran, and his representative, to inform them that the Veterans Law Judge who conducted the hearing in May 2017 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing. In March 2021 he declined to appear at another Board hearing. As such, the Board may proceed to consider the merits of the appeal. 38 C.F.R. § 20.704 (d). 1. Entitlement to service connection for a cardiac disorder, to include ischemic heart disease. Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he has ischemic heart disease related to his military service including exposure to Agent Orange and contaminated water at Camp Lejeune. June 2015 VA treatment records demonstrate the Veteran denied heart problems. In medical treatment records dated December 2015, it was noted he had no signs of congestive heart failure or pulmonary hypertensions. In medical treatment records dated May 2018 the Veteran was asked if he had heart disease/surgery and it was noted that such issues were not applicable. In September 2018 medical treatment records, it was noted he had not had heart problems in the prior six months. In a May 2017 Decision Review Officer (DRO) hearing, the Veteran's representative asked the Veteran if he had a heart attack. The Veteran responded that in the 1980's he had something that "they said was gas" and he reported that he sometimes has pain in his chest. The Veteran further self-reported that he did not have a firm diagnosis of any heart condition. A review of the Veteran's medical records, including the evidence cited above, shows the credible medical and diagnostic evidence of records does not show evidence to support a diagnosis of ischemic heart disease. While the Board acknowledges the Veteran has reported pain in his chest, this subjective symptom alone does not warrant a finding that the Veteran is entitled to an award of service connection. There are multiple times in the record where no heart problems were noted by the Veteran's medical care providers, and the Veteran specifically testified at his May 2017 DRO hearing that he did not have a firm diagnosis. Further, although the Veteran reports pain in his chest, chest pain can be representative of a variety of disabilities, and to date, a competent medical source has not specifically diagnosed ischemic heart disease. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection; however, no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The diagnosis of any current heart disease requires clinical testing and medical expertise and cannot simply be diagnosed by lay observation alone. The Veteran is not considered competent (meaning medically qualified by training or experience) to diagnose these conditions or relate these conditions to any incident during his active service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, there is then no need to address whether these lay statements in this regard are also credible. Id. Here, the Veteran has not shown by medical evidence the presence of any diagnosed heart disability, and the evidence fails to establish functional impairment of the heart that would suggest a disability even in the absence of a diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As there is no competent evidence that the Veteran has, or has had, a diagnosis of any heart disability, he has not presented a valid claim of service connection for such disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.310; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disorder to include, IBS, Crohn's, and ulcerative colitis. VA has a duty to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Under applicable law, a medical examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In the present case, the record contains evidence of a current diagnosis. October 2017 Medical Treatment Records demonstrate the Veteran admitted to GI (gastrointestinal) problems, and his past medical history included colitis and Crohn's disease. December 2018 VA treatment records demonstrate the Veteran's medical history included Crohn's disease and ulcerative colitis diagnosed in the early 1980's. In his March 2015 Notice of Disagreement, the Veteran contended that his IBS was due to chemical exposure at Camp Lejeune. VA has conceded the Veteran was exposed to contaminated water at Camp Lejeune. See, April 2014 rating decision. The Veteran is competent to report GI symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), and the Board has no reason on the current record to doubt his report. His statement, while not an adequate basis upon which to grant the claim, suggests that the Veteran's GI symptoms may be associated with service, including his exposure to contaminated water at Camp Lejeune. As such, an examination is warranted. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation). Because no examination has thus far been obtained, further development is necessary. 2. Entitlement to service connection for GERD. The record contains evidence of a current diagnosis of GERD. April 2017 Medical Treatment Records demonstrate the Veteran was prescribed Omeprazole, a medication commonly prescribed for symptoms of GERD. In May 2017 Hearing Testimony the Veteran reported that he was really bothered by GERD that has being "going on ever since Vietnam and it's continuous". He reported that he has to chronically use antacids. The Veteran is competent to report symptoms of GERD, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), and the Board has no reason on the current record to doubt his reports of chronic GERD symptoms since his service. His statement, while not an adequate basis upon which to grant the claim, suggests that the Veteran's GERD may be associated with service. As such, an examination is warranted. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation). Because no examination has thus far been obtained, further development is necessary. 3. Entitlement to service connection for a bilateral eye disorder. The record contains evidence of a current diagnosis. November 2016 VA treatment records demonstrate the Veteran was diagnosed with cataract, posterior vitreous detachment, refractive error, and presbyopia. February 2020 VA treatment records demonstrate the Veteran had a history of nuclear sclerotic cataracts, allergic conjunctivitis, refractive error, and presbyopia. As such he has a current diagnosis. August 1968 Service Treatment Records demonstrate the Veteran complained of sore eyes. In his May 2017 Hearing testimony, the Veteran also reported his eyes itch all the time and it might have begun after his service at Camp Lejeune. The Veteran is competent to report symptoms of his eye including itching, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), and the Board has no reason on the current record to doubt his report of itching eyes that may have begun after his service at camp Lejeune. His statement, while not an adequate basis upon which to grant the claim, suggests that the Veteran's eye disabilities may be associated with service including his in-service treatment for his eyes and his exposure to contaminated water at Camp Lejeune. As such, an examination is warranted. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation). Because no examination has thus far been obtained, further development is necessary. 4. Entitlement to service connection for a thyroid disorder. The record contains evidence of a current diagnose of a thyroid disorder. February 2020 VA treatment records demonstrate the Veteran had hypothyroidism and was directed to continue Synthroid. In his May 2017 Hearing Testimony, the Veteran contended that his thyroid disability was related to his exposure to dioxin. In his March 2015 Notice of Disagreement, the Veteran contended that his thyroid disability was related to contaminated water at Camp Lejeune. VA has conceded the Veteran was exposed to herbicide agents and contaminated water during his service. See, August 2019 Statement of the Case. Because the Veteran has a current diagnosis and he contends his thyroid disability is related to his in-service exposure to herbicide agents and/or contaminated water at Camp Lejeune a remand is necessary to obtain a VA examination. 5. Entitlement to service connection for a skin disorder. The Veteran was afforded a VA examination, in connection with his claim, in October 2013. The examiner opined that the Veteran's skin disorder was not related to his treatment in service as there was no skin condition on examination. A December 2018 VA examiner opined that it was less likely than not that the Veteran's skin disability was incurred in or caused by the claimed in-service injury, event, or illness. To support this rationale the examiner stated the Veteran did not have any active findings of a chronic skin condition. The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time, he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is evidence that the Veteran had a diagnosis during the pendency of his claim. June 2016 VA treatment records indicate the Veteran had skin urticaria of the bilateral lower extremities. July 2016 VA treatment records indicate that the Veteran was prescribed a second does of prednisone and Cephalexin for an underlying skin infection for his rash that keeps coming back. During the May 2017 Hearing Testimony, the Veteran reported that right after he left Vietnam, he started having skin problems. June 2017 Medical Treatment Records demonstrate the Veteran had a past medical history of high rash medications. During the October 2018 Hearing Testimony, the Veteran reported that he itches all the time and he gets blotches and hives as a side effect of painkillers. The Veteran was afforded VA examinations, in connection with his claim, in October 2013 and December 2018. Both examiners opined the Veteran did not have a current diagnosis. Because neither the October 2013, nor December 2018, examiner addressed the evidence cited above which shows a diagnosis during the pendency of the appeal a remand is required to address this evidence. Further the December 2018 VA examiner stated that there was no documentation of an evaluation or treatment for a skin condition while in-service. However, the examiner did not address the evidence that conflicts this rationale. March 1967 Service Treatment Records demonstrate the Veteran had boils and a skin infection in Vietnam. In October 1967 it was noted he had infected sores on his right arm resembling cellulitis. In December 1967 he had sores on his left hand and elbow. In June 1968 he reported that he had, or had in the past, boils. In July 1968 he had boils on his neck. In January 1969 he had a boil on his neck. In April 1969 he had an abcess on his buttocks. This evidence demonstrates in-service treatment for skin symptoms that was not addressed by the December 2018 and is not consistent with the rationale that there was not treatment for a skin condition while in-service. Finally, in October 2018 Hearing Testimony the Veteran reported that he itched due to the side effect of painkillers. As of yet, the record does not contain evidence of an examiner addressing whether the Veteran's skin disorder is related to a service connected disability, including medication taken in connection with a service connected disability. 6. Entitlement to service connection for a disorder of the bladder and/or urinary tract. The record contains evidence of a current diagnose of a disorder of the bladder and/or urinary tract. A December 2015 VA examiner noted the Veteran had voiding dysfunction. In his May 2017 Hearing Testimony, he reported that he wakes up at night to urinate, and wears depends at times due to "a leaky problem". He reported that his bladder issues have been present for at least 20 years. October 2017 Medical Treatment Records demonstrate that the Veteran has difficulty with urination and the Veteran reported an overactive bladder. As such there is evidence of a current diagnosis. In his March 2015 Notice of Disagreement, the Veteran contended that his bladder/urinary issues were related to the contaminated water at Camp Lejeune and/or herbicides in Vietnam. VA has conceded the Veteran's exposure to contaminated water and herbicide agents. See, August 2019 Statement of the Case. Because the Veteran has a current diagnosis and he contends his bladder and/or urinary tract disability is related to his in-service exposure to herbicide agents and/or contaminated water at Camp Lejeune a remand is necessary to obtain a VA examination. 7. Entitlement to SMC based on the need for regular aid and attendance. In August 2020 the Board found that the issue of SMC based on the need for regular aid and attendance was inextricably intertwined with the aforementioned remanded issues, as resolution of the service-connection claims in the Veteran's favor could impact the outcome of his SMC claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). As such this issue must be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. After the foregoing is complete arrange to have the Veteran scheduled for a VA gastro-intestinal examination. 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 should identify any gastro-intestinal disabilities the Veteran has, or had during the period on appeal from July 2012, to include IBS, Crohn's, ulcerative colitis, and GERD. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any identified gastro-intestinal disability had its onset in, or is otherwise attributable to, his period of active service to include exposure to herbicidal agents and contaminated water at Camp Lejeune. A complete medical rationale for all opinions expressed must be provided. 4. Arrange to have the Veteran scheduled for a VA eye disorders examination. 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 should identify any eye disabilities the Veteran has, or had during the period on appeal from July 2012. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any identified eye disability had its onset in, or is otherwise attributable to, his period of active service to include exposure to herbicidal agents and contaminated water at Camp Lejeune. The examiner should address the medical significance, if any, of the Veteran's August 1968 Service Treatment Record of treatment for sore eyes and his exposure to herbicidal agents and contaminated water. A complete medical rationale for all opinions expressed must be provided. 5. Arrange to have the Veteran scheduled for a VA endocrinology examination. 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 should identify any thyroid disabilities the Veteran has, or had during the period on appeal from July 2012. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any identified thyroid disability had its onset in, or is otherwise attributable to, his period of active service to include exposure to herbicidal agents and contaminated water. A complete medical rationale for all opinions expressed must be provided. 6. To the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran's skin disorder in December 2018. The examiner should be asked to again review the expanded record and prepare a supplemental report. The examiner should identify any skin disability that that the Veteran has had during the pendency of the appeal, from July 2012, and should opine as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a skin disability that had its onset during, or is otherwise related to, the Veteran's military service, to include exposure to herbicidal agents and contaminated water at Camp Lejeune. If it is the examiner's opinion that it is unlikely that an identified disability had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been caused or aggravated by the Veteran's service-connected disabilities including medication for such treatment. In so doing, the examiner should discuss the medical significance, if any, of the October 1967, December 1967, June 1968, July 1968, January 1969, and April 1969 Service Treatment Records. The examiner should also discuss the June 2017 Medical Treatment Records demonstrating the Veteran had a history of high rash medications and his October 2018 Hearing Testimony that the Veteran itched due to the side effect of painkillers. If the December 2018 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 7. To the extent possible, arrange to have the Veteran scheduled for a VA urinary examination. The examiner(s) 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(s) should identify any bladder and/or urinary disabilities that are present. Then, with respect to each such disability, the examiner(s) should offer 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 disability had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include his exposure to herbicidal agents and contaminated water at Camp Lejeune. (Continued on next page) 8. 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 paragraphs, the Veteran's claim 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. Neely M. Peden Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, Associate 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.