Citation Nr: 21041179 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-19 340 DATE: July 8, 2021 ORDER The appeal as to the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. The appeal as to the claim of entitlement to service connection for multiple myeloma is denied. REMANDED The appeal as to the claim of entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is remanded. The appeal as to the claim of entitlement to service connection for ischemic heart disease and coronary artery disease (CAD), to include as due to herbicide exposure, is remanded. The appeal as to the claim of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. While in remand status, a November 2020 rating decision granted entitlement to service connection for PTSD. 2. The Veteran does not have multiple myeloma or any hematologic or lymphatic condition. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for PTSD has been granted, there remains no case or controversy as to the issue of entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 7105(d)(5) (2012); 38 C.F.R. § 20.101 (2020). 2. The criteria for establishing entitlement to service connection for multiple myeloma have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from September 1967 to April 1969. His service was under honorable conditions. These matters are on appeal from a September 2015 rating decision. In December 2019, the Veteran testified at a videoconference hearing before the Undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for PTSD. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, a November 2020 rating decision granted the Veteran's claim of entitlement to service connection for PTSD. This action resolved the claim for service connection. As a result, no case or controversy regarding the matter of service connection for PTSD remains, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to the matter, and the matter is dismissed. Service Connection Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied, "when a claimant has a disability at the time a claim for VA disability compensate on is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 2. Entitlement to service connection for multiple myeloma. The Veteran contends that his current multiple myeloma is related to active service. Service treatment records are negative for complaints of, treatment for, or diagnoses of multiple myeloma or a blood disorder. Post-service VA and private treatment records are negative for complaints of, treatment for, or diagnoses of multiple myeloma. In this regard, the Veteran underwent a VA examination in October 2020, during which the examiner found that the was no current diagnosis of multiple myeloma or any hematologic or lymphatic condition. The Board recognizes that the Veteran might sincerely believe that he has multiple myeloma that is related to his active service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the requisite medical training or expertise necessary to render his statements as competent evidence on matters such as medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Moreover, the October 2020 VA examination found that there was no current diagnosis of multiple myeloma or any hematologic or lymphatic condition. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110; see also Brammer, 3 Vet. App. at 225 (1992). As above, the evidence does not show that the Veteran has multiple myeloma, nor has such a diagnosis been present at any time during the period of the appeal. Likewise, there is no evidence of symptomatology associated with these systems resulting in functional impairment. Accordingly, the Board finds that the probative evidence is against finding that the Veteran has a current multiple myeloma disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. See Argument Below at 2 2. Entitlement to service connection for a heart disorder, to include ischemic heart disease and CAD, to include as due to herbicide exposure. The Veteran contends that his current diabetes mellitus type II disorder and heart disorders are related to his active service, to include claimed exposure to herbicide agents while serving in Korea. Service treatment records are negative for complaints of, treatment for, or a diagnosis of diabetes mellitus type II or a heart disorder. Post-service records include VA examination reports dated on October 2020, during which the examiner diagnosed diabetes mellitus, type II, CAD, and myocardial infarction. Upon examination, the examiner found that the current diabetes mellitus type II and CAD were not due to herbicide exposure because there was no evidence of record documenting herbicide exposure. The Board finds the October 2020 VA opinions inadequate to adjudicate the claim, as the examiner failed to provide an etiology for the Veteran's current myocardial infarction diagnosis, and regarding the remaining diagnoses, he only found that they were not due to the claimed herbicide exposure. The examiner did not provide an etiology opinion addressing direct service connection with respect to the Veteran's current diabetes mellitus, type II, and CAD disorders. Accordingly, another medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the above, another remand is required for completion of the directives of the December 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type II. The Veteran asserts hypertension disorder is secondary to his diabetes mellitus, type II disorder. Therefore, the claim of entitlement to service connection for hypertension is inextricably intertwined with the claim of entitlement to service connection for diabetes mellitus, type II. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). As this claim is being remanded, updated VA outpatient treatment records should also be obtained. 38 C.F.R. § 3.159. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include updated VA outpatient treatment records dated in February 2020 to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the appellant so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, obtain a medical opinion from an appropriate VA examiner to determine the etiology of the Veteran's current diabetes mellitus, type II. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the diabetes mellitus type II disorder present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current diabetes mellitus type II disorder is etiologically related to the Veteran's active service? In providing the opinions, the examiner must discuss the contemporaneous private and VA treatment records that note diagnoses of diabetes mellitus, type II. The examiner must also discuss the October 2020 VA examination and opinion. Finally, the examiner, must offer an etiology as to the Veteran's current diabetes mellitus, type II disorder. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinion. 3. Obtain a medical opinion from an appropriate VA examiner to determine the etiology of the Veteran's current CAD and myocardial infarction disorders. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the CAD and myocardial infarction disorders present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current CAD and/or myocardial infarction disorder(s) is etiologically related to the Veteran's active service? In providing the opinions, the examiner must discuss the contemporaneous private and VA treatment records that note diagnoses of CAD and myocardial infarction. The examiner must also discuss the October 2020 VA examination and opinion. Finally, the examiner, must offer an etiology as to the Veteran's current CAD and myocardial infarction disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinion. 3. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.