Citation Nr: 21041011 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-33 058 DATE: July 7, 2021 ORDER Service connection for cystic kidney disease is denied. Service connection for an eye condition, to include keratoconjunctivitis, is denied. Service connection for sleep apnea is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that the Veteran's cystic kidney disease was related to active service. 2. A preponderance of the evidence is against a finding that the Veteran's eye condition, to include keratoconjunctivitis, was related to active service. 3. A preponderance of the evidence is against a finding that the Veteran's sleep apnea was related to active service. 4. A preponderance of the evidence is against a finding that the Veteran's an acquired psychiatric disorder, to include PTSD, was related to active service. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for cystic kidney disease. 38 U.S.C. §§ 105(a), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria have not been met for service connection for an eye condition, to include keratoconjunctivitis. 38 U.S.C. §§ 105(a), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria have not been met for service connection for sleep apnea. 38 U.S.C. §§ 105(a), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria have not been met for service connection for an acquired psychiatric disorder, to include PTDS. 38 U.S.C. §§ 105(a), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to June 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In October 2015, the Veteran submitted a Notice of Disagreement with the October 2014 rating decision. In January 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in July 2020 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The Veteran initially filed a claim to establish service connection for keratoconjunctivitis. In determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the decision in Clemons and the diagnoses of record, the Board has expanded the Veteran's claim to include an eye condition, to include keratoconjunctivitis, and the issue has been recharacterized as stated on the title page. This will provide the most favorable review of the Veteran's claim in keeping with the holding in Clemons. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1101. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if they manifest to a compensable degree within one year following service. 38 C.F.R. § §§ 3.303, 3.307, 3.309. 1. Service connection for cystic kidney disease is denied. Factual Background In his January 2020 hearing, the Veteran testified that he believed his kidney problems were the result of exposure to contaminated water while he was assigned to Homestead, Florida. The Veteran submitted multiple articles about the use of contaminants in and around Homestead. The Board notes however that the VA has never conceded that people serving in Homestead were exposed to contaminants. In a September 2020 VA examination report, the Veteran was diagnosed with cystic kidney disease. He reported that in 2014, he underwent an MRI of the spine and a renal cyst was identified in his right kidney. The VA examiner noted that there was no documentation of a renal cyst during service, and the Veteran's renal cyst was identified many years after his active service. The VA examiner opined that it was less likely than not that the Veteran's condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that according to the VA examiner, "VA has NOT conceded that there was water contamination or toxin exposure at Homestead." The examiner explained that renal cysts result from genetic or nongenetic processes and occur in a variety of diseases in adults and children. The most common causes of radiologically evident renal cysts in adults are simple renal cysts. Simple renal cysts are commonly observed in normal kidneys, with an increasing incidence as individuals age. The examiner noted that the risk factors for a renal cyst are age, male gender, renal dysfunction, and hypertension. Analysis The Board has not overlooked the Veteran's statements and the evidence he provided concerning his cystic kidney disease. While the Veteran is competent to observe his kidney symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his condition or whether it was related to his active service, to include possible exposure to contaminants at Homestead, Florida. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the September 2020 VA examination report, finding no causal link between the Veteran's cystic kidney disease and active service to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for an eye condition is denied. In a January 2014 private treatment report, the Veteran's physician wrote that the Veteran's keratoconjunctivitis was "possibly related to prior chemical exposure" during active service. The Board notes that this opinion is both speculative and does not contain a rationale. In an October 2020 VA examination report, the Veteran was diagnosed with dry eye syndrome and cataracts. The VA examiner opined that it was less likely than not that the Veteran's keratoconjunctivitis was incurred in or caused by the claimed in-service injury, event, or illness because the Veteran did not have a diagnosis of keratoconjunctivitis. In a subsequent October 2020 opinion, the VA examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that while the Veteran did not exhibit keratoconjunctivitis, he did have a diagnosis of dry eye syndrome. According to the VA examiner, keratoconjunctivitis and dry eye syndrome shared many signs and symptoms. Because of this, it was at least as likely as not that the keratoconjunctivitis diagnosed during the Veteran's active service was causally related to, or represented, the initial manifestations of his current diagnosis of dry eye syndrome. The examiner further noted that a study published in 2016 found an association between alcohol use and an increased risk of dry eye syndrome. In an addendum March 2021 opinion, the VA examiner opined that it was less likely than not that the Veteran's eye condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the private examiner in the 2014 opinion was correct in that keratoconjunctivitis sicca was interchangeable with dry eye syndrome diagnosed with the VA examiner in the October 2020 examination. However, based on the information that in 1978, a chemical was splashed in only one of the Veteran's eyes (the right eye) and that there was only one other documented report of eye discomfort again in 1978, it was unlikely that this created a chronic eye condition. Additionally, the VA examiner noted that on the Veteran's 1986 Report of Medical Examination for separation, no ocular diagnosis was found, or any eye related symptoms. The VA examiner wrote that the January 2014 private eye examination diagnosed the Veteran's ocular condition 36 years after the reported incident with paint thinner, with no further evidence of chronicity of the condition. The VA examiner noted that the 1978 incident in service was only to the Veteran's right eye, yet the October 2020 VA examination report diagnosed the Veteran with dry eye syndrome in both eyes. The examiner further reported that dry eye syndrome was a common age related finding and concluded that it was less likely than not that the Veteran's current diagnosis of dry eye syndrome of both eye was due to an event in active service. Analysis The Board has not overlooked the Veteran's statements and the evidence he provided concerning his eye condition. While the Veteran is competent to observe his eye symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his condition or whether it was related to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the March 2021 VA addendum opinion, finding no causal link between the Veteran's current eye condition and active service, has greater probative weight than the January 2014 private opinion and the positive October 2020 VA opinion. Concerning the January 2014 private opinion, the Board notes that this opinion is both speculative and does not contain a rationale. Medical opinions expressed in speculative language are not adequate to be used as evidence for or against a claim. 38 C.F.R. § 4.16(a); In addition, medical opinions that contain only data and conclusions, do not provide a causal opinion, are not based upon a review of medical records, or provide unsupported conclusions, are also inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Because of this, the January 2014 private opinion is inadequate. Concerning the positive October 2020 VA opinion, the Board finds that the negative March 2021 addendum opinion was more persuasive and had greater probative weight. In the positive October 2020 opinion, the examiner noted that keratoconjunctivitis and dry eye syndrome shared many signs and symptoms. This was the only rationale for the examiner's positive nexus opinion. By contrast, the negative March 2021 opinion noted that the original 1978 incident was only to the Veteran's right eye, yet his diagnosed dry eye syndrome was in both eyes. The March 2021 opinion also noted that after two incidents in 1978, the Veteran did not report any other problems with his eyes and on his 1986 separation examination, no eye conditions or symptoms were found. Because of this, the Board finds that the March 2021 addendum opinion, finding no causal link between the Veteran's dry eye syndrome and active service to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez, 22 Vet. App. at 304. Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for sleep apnea is denied. Factual Background In his January 2020 hearing, the Veteran testified that his sleep apnea started in the early 1980s during active service. His service treatment records (STRs) noted complaints of respiratory problems, including rhinitis, during service. In a September 2020 VA examination report, the Veteran was diagnosed with obstructive sleep apnea. The Veteran reported that during service, he was told that he snored and would gasp for breath when he slept. In 2004, he underwent a sleep study and was diagnosed with sleep apnea. The VA examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that a review of the Veteran's STRs showed no evidence of a diagnosis or treatment for sleep apna or diagnostic polysomnography while on active duty. The VA examiner noted that observed snoring, unrestful sleep, gasping, trouble sleeping, shallow breathing, and insomnia are not "pathogonomic" for sleep apnea. Additionally, insomnia was not a sign of sleep apnea and the two were mutually exclusive. According to the VA examiner, insomnia is a sleep disorder where the person has trouble sleeping. They may have difficulty falling asleep or staying asleep as long as desired. Insomnia is typically followed by daytime sleepiness, low energy, irritability, and a depressed mood. By contrast, people with sleep apnea have no trouble falling or staying asleep. Obstructive sleep apnea is due to upper airway soft tissue abnormalities and/or obesity. The examiner noted that rhinitis does not cause obstructive sleep apnea and that the Veteran's Body Mass Index (BMI) was 31.6, which qualified him as "obese." The examiner concluded by opining that the Veteran's obesity was the likely cause of his obstructive sleep apna. Analysis The Board has not overlooked the Veteran's statements and the evidence he provided concerning his sleep apnea. While the Veteran is competent to observe his sleep apnea symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his condition or whether it was related to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the September 2020 VA examination report, finding no causal link between the Veteran's obstructive sleep apnea and active service to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service connection for an acquired psychiatric disorder is denied. Factual Background In his January 2020 hearing, the Veteran testified that he was deeply affected by the deaths of his service buddies while they were all out drinking. The Veteran reported that while they were all out together, the Veteran left early to go home, but his friends stayed behind to continue drinking, and ended up dying on their way back. The Veteran testified that he became depressed and starting drinking heavily, self-medicating with alcohol because of this incident. In a February 2021 VA examination report, the examiner noted that the Veteran's symptoms did not meet the DSM-5 criteria for PTSD. The Veteran was instead diagnosed with severe alcohol use disorder, unspecified depressive disorder, and unspecified anxiety disorder. The Veteran reported that he had depressed moods often, had a hard time getting his "mind to rest," had a lot of irritability, anxiety, and paranoia about going out of his home. The Veteran stated that he did not trust people and reported hearing voices. However, according to the VA examiner, the Veteran was not consistent or accurate in his statements. The VA examiner reported that Veteran did not appear to be an accurate historian, was vague about the series of events of his stressor statement, and was inconsistent about his use of alcohol, first telling the examiner that he had not had a drink in years, and later telling the examiner he last had a drink a week ago, and stated that he drank to the point where "I drink until I don't feel what I'm feeling." The Veteran scored a 10 on the malingering scale which the examiner described as "well above the cutoff" score of 6. According to the VA examiner, this indicated possible deception and overexaggerating of symptoms. Further, at the Veteran's January 2020 hearing, he told the VLJ that "I was a good drinker back then..." The examiner pointed out that it appeared that the Veteran's drinking did not start or begin with this incident in the military and the Veteran was evasive about how much he drank. The Veteran reported that he had a psychiatrist with whom he talked to, but the records in his claims file do not reflect this and the Veteran did not elaborate. Overall, given the extent of the Veteran's evasiveness and inconsistent statements, the examiner reported that it was difficult for the examiner to state that the death of the Veteran's friends was causing him to drink and use substances later in his life. The VA examiner opined that it was less likely than not that the Veteran's psychological conditions were incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that, while the Veteran was diagnosed with an alcohol use disorder, depressive disorder, and an anxiety disorder, his reports and statements made during the examination were evasive and inconsistent. The Veteran scored well above the cutoff score on the malingering scale and, according to the examiner, this suggested that the Veteran was attempting to exaggerate his mental health symptoms. Because of this, the examiner explained that it was difficult to state the Veteran's psychiatric disabilities were caused by the deaths of his friends. As a result, the examiner reiterated that it was less likely than not that the Veteran's acquired psychiatric disorder was incurred in or caused by the claimed in-service injury, event, or illness. Regarding possible exposure to chemicals in Homestead, Florida, the VA examiner opined that this was less likely than not because exposure to chemicals would more likely impact the Veteran's physiological condition, not his psychological condition. Analysis Based on the above evidence, the Board determines that the Veteran is not credible regarding his psychological symptoms or to the events leading up to his stressor event. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on inconsistent statements, facial plausibility, and consistency with other evidence of record). Noted above, in the February 2021 VA examination report, the examiner reported that the Veteran was vague about the series of events of his stressor statement, and was inconsistent about his use of alcohol, first telling the examiner that he had not had a drink in years, and later telling the examiner he last had a drink a week ago. The examiner pointed out that it appeared that the Veteran's drinking did not start or begin with this incident in the military and the Veteran was evasive about how much he drank. Additionally, the Veteran reported that he talked to a psychiatrist, but the records in his claims file do not reflect this and the Veteran did not elaborate. Overall, given the extent of the Veteran's evasiveness and inconsistent statements, the examiner reported that it was difficult for to state that the death of the Veteran's friends was causing him to drink and use substances later in his life. The Board finds that the February 2021 VA opinion is adequate. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The February 2021 VA examiner reviewed the claims file, opined that it was less likely than not that the Veteran's condition was related to service, and provided a rationale that because of the Veteran's evasiveness and inconsistent statements, it was difficult to find a link between the death of the Veteran's friends and the Veteran's current psychological conditions. Based on the objective medical findings of the February 2021 VA examiner that the Veteran was "malingering," and scored a 10 on the malingering scale, "well above the cutoff" score of 6, the Board finds that while the Veteran is competent to observe his psychiatric symptoms, his statements are not credible or accurate. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on this negative credibility finding, the Board finds that the examiner's opinion is adequate, and sufficient to deny the claim. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Board notes that, according to the most recent July 2020 Rating Decision Codesheet, the Veteran is service connected for tinnitus, rated as 10 percent disabling, effective October 10, 2013, and bilateral hearing loss, rated as noncompensable (0 percent disabling), effective October 10, 2013. Therefore, he does not meet the schedular criteria for a TDIU rating. 38 C.F.R. § 4.16. Despite this, in a September 2020 VA opinion, the examiner noted that the Veteran's trade following separation from service was as an air conditioning repairman. The Veteran reported that he struggled to hear over his tinnitus in order to identify the problem with the AC unit and complete the repairs. Because of this, he could not complete his job properly. The VA examiner noted that without further treatment for his tinnitus, the Veteran would continue to have difficulty maintaining employment consistent with his occupational experience. The Board notes that the determination of whether a veteran is entitled to TDIU is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board also notes that the Veteran's claims file does not appear to contain a VA Form 21-8940, detailing the Veteran's education and employment history. Because of this, a remand is necessary to obtain the Veteran's educational and employment history and to determine whether tinnitus and hearing loss prevent him from obtaining and maintaining substantially gainful employment. The matters are REMANDED for the following actions: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning this claim. 3. Provide the Veteran and his representative with appropriate notice regarding the issue of entitlement to a TDIU rating, to include requesting that he complete and return a VA Form 21-8940 and any other necessary forms. All action necessitated by the Veteran's response must be accomplished. 4. Forward the Veteran's claims file to an appropriate medical professional to obtain an opinion commenting on how the Veteran's service connected bilateral hearing loss and tinnitus affect his functional ability, including his ability to work, to include the effects of the combination of the Veteran's service-connected disabilities on his ability to secure and follow gainful employment. In rendering this "combined effects" opinion, the examiner should review the claims file and take into consideration the Veteran's level of education, special training, and previous work experience, but not age or any impairment caused by nonservice-connected disabilities. To the extent possible, there should be one opinion as to the combined effects of all the Veteran's service-connected disabilities, and not multiple opinions addressing each individual disability. 5. Refer the claim of entitlement to a TDIU to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran qualifies for an extraschedular TDIU. A copy of the decision must be included in the claims file. 6. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.