Citation Nr: 1422505	
Decision Date: 05/19/14    Archive Date: 05/29/14

DOCKET NO.  11-28 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for sleep apnea (also claimed as dysautonomia), to include as secondary to contaminated water at Camp Lejeune.

2.  Entitlement to service connection for neuropathy of the upper extremities, to include as secondary to contaminated water at Camp Lejeune.

3.  Entitlement to service connection for neuropathy of the lower extremities, to include as secondary to contaminated water at Camp Lejeune.

4.  Entitlement to service connection for depression (also claimed as anxiety and sleeplessness), to include as secondary to contaminated water at Camp Lejeune.

5.  Entitlement to service connection for hypertension, to include as secondary to contaminated water at Camp Lejeune.

6.  Entitlement to service connection for headaches (also claimed as dysautonomia), to include as secondary to contaminated water at Camp Lejeune.

7.  Entitlement to service connection for blurred vision, to include as secondary to contaminated water at Camp Lejeune.

8.  Entitlement to service connection for shortness of breath (also claimed as dysautonomia), to include as secondary to contaminated water at Camp Lejeune.

9.  Entitlement to service connection for tachycardia (also claimed as dysautonomia), to include as secondary to contaminated water at Camp Lejeune.

10.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Kentucky Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran and wife


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel

INTRODUCTION

The Veteran served on active duty from June 1985 to June 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  Jurisdiction over the case was subsequently transferred to the Louisville, Kentucky RO. 

In May 2012, the Veteran was afforded his requested Board videoconference hearing before the undersigned.  A transcript of the hearing has been associated with the claims file.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims.  

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  There is competent medical opinion evidence that shows that the Veteran's sleep apnea is due to Autonomic Nervous System Dysfunction which was caused by exposure to contaminated water at Camp Lejeune.

2.  There is competent medical opinion evidence that shows that the Veteran has a disability of the upper extremities that is due to Autonomic Nervous System Dysfunction which was caused by exposure to contaminated water at Camp Lejeune.

3.  There is competent medical opinion evidence that shows that the Veteran has a disability of the lower extremities that is due to Autonomic Nervous System Dysfunction which was caused by exposure to contaminated water at Camp Lejeune.

4.  There is competent medical opinion evidence that shows that the Veteran has an acquired psychiatric disorder that is proximately due to his Autonomic Nervous System Dysfunction.

5.  The competent medical opinion evidence of record shows that the Veteran's hypertension is not due to Autonomic Nervous System Dysfunction and it is not otherwise shown that the disorder is due to exposure to contaminated water at Camp Lejeune.

6.  There is competent medical opinion evidence that shows that the Veteran's headaches are due to Autonomic Nervous System Dysfunction which was caused by exposure to contaminated water at Camp Lejeune.

7.  The competent medical opinion evidence of record shows that the Veteran's blurred vision is not due to Autonomic Nervous System Dysfunction and it is not otherwise shown that the disorder is due to exposure to contaminated water at Camp Lejeune.

8.  There is competent medical opinion evidence that shows that the Veteran's shortness of breath is due to Autonomic Nervous System Dysfunction which was caused by exposure to contaminated water at Camp Lejeune.

9.  There is competent medical opinion evidence that shows that the Veteran's tachycardia is due to Autonomic Nervous System Dysfunction which was caused by exposure to contaminated water at Camp Lejeune.


CONCLUSIONS OF LAW

1.  Autonomic Nervous System Dysfunction to include sleep apnea, disability of the upper extremities, disability of the lower extremities, headaches, shortness of breath, and tachycardia, was incurred in active service.  38 U.S.C.A. § 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).

2.  An acquired psychiatric disorder is proximately due to Autonomic Nervous System Dysfunction.  38 U.S.C.A. § 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310 (2013).

3.  The criteria for service connection for hypertension have not been met.  38 U.S.C.A. § 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).

4.  The criteria for service connection for blurred vision have not been met.  38 U.S.C.A. § 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). 

The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012).  The requirements apply to all five elements of a service connection claim:  veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  

In a September 2010 VCAA letter sent to the Veteran prior to the appealed January 2011 rating decision, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claims as well as what information and evidence must be submitted by the Veteran and the types of evidence that would be obtained by VA.  The 2010 VCAA letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations.  The Board finds that VA's duty to notify has been met. 

The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim.  Specifically, the information and evidence that have been associated with the claims file includes private and VA treatment records.  Also, the Veteran was afforded VA examinations in May and June 2011.  The Board finds that the reports on the examinations are adequate as the examiners reviewed the claims file, considered the contentions of the Veteran, examined the Veteran, and provided a supporting rationale for the opinions rendered.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008).  The evidence of record is sufficient to decide the claims and no other development is warranted to include for purposes of procurement of any potential additional records to include records from SSA.  Finally, the Veteran was also provided an opportunity to set forth his contentions during the 2012 Board hearing.  In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  23 Vet. App. 488 (2010).  The issues on appeal were enumerated.  The record fails to show harmful error under Bryant as the development (medical examination and nexus opinion) necessary to substantiate the claims was conducted.  See Bryant v. Shinseki, 23 Vet. App. 488, 498-99 (2010) ("[A]lthough the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary-to include medical examination reports on each of these disabilities and any nexus to service-and there was no indication that the represented appellant had any additional information to submit.  Accordingly, the 'clarity and completeness of the hearing record' was intact with respect to these disabilities and the purpose of § 3.103(c)(2) was fulfilled.").

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process, identifying relevant treatment he received for his disability, submitting medical evidence and lay statements detailing personal observations, and providing testimony at the Board hearing.  Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so.  The Board finds that VA's duty to assist has been met.  

II.	Pertinent Laws and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013).  In order to establish service connection for a claimed disorder, the following must be shown:  (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).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b) (2012).  The United States Court of Appeals for the Federal Circuit has recently held that absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Regulations also provide that 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) (2012).

Also, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition.  38 C.F.R. § 3.310(a) (2013).  The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease.  Allen v. Brown, 7 Vet. App. 439 (1995).

III.	Analysis 

The Veteran served on active duty from June 1985 to June 1989.  Service records confirm that he was stationed at Camp Lejeune from December 1985 to September 1988.  

Historically, United States Marine Corps Base Camp Lejeune, North Carolina, was established in 1941.  In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent.  The main source of TCE contamination was on-base industrial activities, while the main source of PCE was an off-base dry cleaning facility. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems.  These water systems served housing, administrative, and recreational facilities, as well as the base hospital. Department of the Navy estimates indicate that as many as 630,000 active duty personnel may have been exposed.  The contaminated wells supplying the water systems were identified and shut down by February 1985.  In 2008, the Navy sent an informational outreach letter to those individuals who could be identified as having served there between 1957 and 1987, as the Navy apparently felt that including individuals serving until 1987 would cover potential exposure from any residual contaminants present in the water beyond the well closings in 1985.

The National Academy of Sciences' National Research Council (NRC) published its Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009.  This report included a review of studies addressing exposure to TCE, and Tetrachloroethylene or PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure.  Fourteen disease conditions were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure, to include neurobehavioral effects. (Emphasis added).  NRC uses the category "limited/suggestive evidence of an association" when the evidence is "limited by the inability to rule out chance and bias, including confounding, with confidence."  More specifically, the NRC "concluded that the epidemiological studies give some reason to be concerned that sufficiently high levels of the chemical may cause the disease, but the studies do not provide strong evidence that they actually do so."  While the NRC noted that animal testing showed adverse health effects of TCE and PCE, it also noted that the "highest levels of either TCE or PCE measured in the mixed-water samples at Camp Lejeune were much lower than the lowest dose that caused adverse effects in the most sensitive strains and species of laboratory animals.  The lower levels of exposure may be of some concern for effects on neurotoxicity and immunotoxicity, but further research is needed to evaluate the specific effects of TCE and PCE and whether they are relevant to humans."

The Board notes that the list of disease conditions identified in the aforementioned NRC report is not exclusive. 

The Veteran's service treatment records are silent as to complaints, treatment, or diagnoses of any of the claimed conditions.  

Post-service private treatment records show treatment for hypertension in 2000; dyspnea in 2002; asthma in 2003; sleep apnea and migraine headaches in 2005; recurrent tachycardia and palpitations in 2006 and 2008; arm numbness in 2006; and autonomic dysfunction in 2008/2009. 

The Veteran testified at a Board hearing in May 2012 and reported that he had suffered from "mysterious and undiagnosed illnesses" since approximately 1992, or shortly after his separation from service.  His wife testified that his symptoms first manifested in the early 1990's, beginning with tachycardia, weakness in the legs, numbness in the hands, and blurred vision, with subsequent diagnoses of asthma, sleep apnea, and headaches.  The Veteran denied participating in any other activities or employment that could have exposed him to chemicals; he also denied living anywhere, other than Camp Lejeune, where he could have been exposed to or ingested potentially contaminated water.  

The Veteran underwent VA examinations for the claimed conditions in May and June 2011.  The May 2011 VA examiner diagnosed central autonomic dysfunction (a broad term for any disease or malfunction of the autonomic nervous system)/dysautonomia, and opined that there was "no medical evidence that autonomic dysfunction or dysautonomia is related to exposure to contaminated water at Camp Lejeune."  The VA examiner also diagnosed recurrent supraventricular tachycardia, presyncopy, and palpitations, and opined that the tachycardia was due to his autonomic dysfunction and not related to his exposure to contaminated water at Camp Lejeune.  The VA examiner also opined that the diagnosed hypertension was a "multi-factorial medical condition" and not related to his exposure to contaminated water at Camp Lejeune.  With respect to headaches, the VA examiner opined that the diagnosed headaches were "part of his autonomic dysfunction" (and sometimes sinus headaches), and were not related to exposure to contaminated water at Camp Lejeune.  With respect to shortness of breath, the VA examiner acknowledged that the Veteran had prior asthma diagnoses, but diagnosed dyspnea as "part of his dysautonomia" and opined that it was not related to exposure to contaminated water at Camp Lejeune.  The VA examiner also diagnosed sleep apnea "due to central dysregulation of ANS," and opined that it was not due to contaminated water at Camp Lejeune.  With respect to peripheral neuropathy, the VA examiner noted that there was no evidence of neuropathy upon VA examination, or in private neurological treatment records.  However, he opined that the "episodic feelings of weakness in the arms and legs" were related to his autonomic dysfunction, with waxing and waning symptoms, and not related to his exposure to contaminated water at Camp Lejeune.  Lastly, with respect to the claimed blurry vision, the VA examiner diagnosed refractive error, and opined that it was not caused by or a result of exposure to contaminated water at Camp Lejeune.  The examiner reasoned that refractive errors were due to ocular anatomy and has not been shown to be due to environmental exposures.

The June 2011 VA examiner opined that the Veteran had an adjustment disorder with depressed mood, chronic which he linked to the Veteran's diagnosis of dysautonomia (Autonomic Nervous System Dysfunction). 

In March 2011, D.T., (R.N, M.S.N., F.N.P.-C.), of West Tennessee Neurology, on behalf of Dr. S.S. submitted a letter indicating that the Veteran had autonomic dysfunction with a long history of palpitations, chest tightness, dyspnea, and presyncope.  D.T. opined that, according to current literature, the Veteran's ANS dysfunction was possibly two-fold: (1) A chemical exposure that he has described (i.e., contaminated water at Camp Lejeune); and (2) a history of sleep apnea, felt to be secondary to #1.  This evaluation was based on ANSAR and PSG findings/testing. 

In January 2012, D.T. of the West Tennessee Neurology again submitted a letter, noting that the Veteran was being treated for autonomic dysfunction, with waxing and waning symptoms of fatigue, chest tightness and shortness of breath, poor thermoregulation, and multiple sensory intolerances.  D.T. stated that the Veteran's history was notable for exposure to contaminated water at Camp Lejeune and that many of the contaminants found "are known to possess neurotoxic qualities."  D.T. noted that, by way of an example, an organic solvent found in Camp Lejeune's contaminated water (carbon disulphide toluene) had been tested in relation to autonomic compromise.  D.T. cited to a 1985 study published in The Journal of Neurology and Psychology, which specifically compared autonomic parameters between health controls and subjects who had been exposed to carbon disulphide toluene.  The exposed subjects had lower autonomic scores than the controls.  D.T. therefore opined that the Veteran's exposure to contaminated drinking water at Camp Lejeune "is more likely than not the cause of his autonomic dysfunction."  


While the May 2011 VA examiner has attributed many of the Veteran's disorders to 
Autonomic Nervous System Dysfunction, he disagrees with the March 2011 and January 2012 private opinions that the cause of the Autonomic Nervous System Dysfunction is due to exposure to contaminated water from Camp Lejeune.  The private opinions are supported by a rationale based on sound medical principles.
The Court recently reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits."  Wise v. Shinseki, No. 12-2764, slip op. at 16 (U.S. Vet. App. April 16, 2014), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  The Board finds that reasonable doubt should be resolved in favor of the Veteran.  Thus, there is competent medical evidence that shows that the Veteran has sleep apnea, disability of the upper extremities, disability of the lower extremities, headaches, shortness of breath, and tachycardia due to Autonomic Nervous System Dysfunction which was caused by exposure to contaminated water from Camp Lejeune.  Service connection is warranted for these disorders.  There is also competent medical evidence that shows that the Veteran has an acquired psychiatric disorder due to the diagnosis of Autonomic Nervous System Dysfunction.  Secondary service connection is warranted for this disorder.  The competent medical evidence, however, shows that the Veteran does not have hypertension or blurred vision due to Autonomic Nervous System Dysfunction and there is no competent evidence that shows that these disorders are otherwise due to exposure to contaminated water from Camp Lejeune.  There is no contrary medical opinion.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's hypertension and blurred vision are due to Autonomic Nervous System Dysfunction or exposure to contaminated water from Camp Lejeune, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Therefore, service connection is not warranted for these disorders.


ORDER

Service connection for Autonomic Nervous System Dysfunction to include sleep apnea, disability of the upper extremities, disability of the lower extremities, headaches, shortness of breath, and tachycardia is granted.

Service connection for an acquired psychiatric disorder as secondary to Autonomic Nervous System Dysfunction is granted.

Service connection for hypertension is denied. 

Service connection for blurred vision is denied. 


REMAND

In light of the decision made herein, the Veteran should be afforded a VA examination and opinion for purposes of determining whether the Veteran is unable to secure or follow a substantially gainful occupation on account of service connected disability. 

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination by an appropriate examiner on the issue of entitlement to TDIU.  The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner.

The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation. The examiner should discuss the Veteran's employment history and educational attainment; however, the examiner must not take into consideration factors other than the Veteran's service-connected disabilities (i.e., age or nonservice- connected disabilities).

If the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background.

All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided.  If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

2. After accomplishing the above, the RO/AMC should readjudicate the issue of entitlement to TDIU.  If any claim on appeal is not fully granted, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and an appropriate period of time should be provided for response.


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
TANYA A. SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs