Citation Nr: 1333722	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  09-42 362	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a thyroid disorder to include as due to exposure to contaminated water at Camp Lejeune and jet fuel in Japan.     

2.  Entitlement to service connection for numbness of the upper extremities, peripheral neuropathy, and peripheral nerve disease to include as due to exposure to contaminated water at Camp Lejeune and jet fuel in Japan.    

3.  Entitlement to service connection for fibromyalgia, an unspecified disorder of the upper and lower extremities, and a disability manifested by muscle atrophy, painful joints, and limited range of motion of the upper and lower extremities to include as due to exposure to contaminated water at Camp Lejeune and jet fuel in Japan.    

4.  Entitlement to service connection for an esophageal disorder to include as due to exposure to contaminated water at Camp Lejeune and jet fuel in Japan.    



REPRESENTATION

Appellant represented by:	Katrina J. Eagle, Attorney at Law


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran served on active duty from March 1977 to September 1978.   

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Louisville, Kentucky, Department of Veterans Affairs (VA) Regional Office (RO).    

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence.  


FINDINGS OF FACT

1.  The Veteran was stationed at Camp Lejeune from June 1977 to December 1977.     

2.  The Veteran does not have a current thyroid disorder or disease.  

3.  The Veteran does not have current peripheral neuropathy or a peripheral nerve disease.     

4.  Disease or symptoms of a fibromyalgia were not manifested during service.  

5.  Fibromyalgia first manifested in 2010 and is not caused by any in-service event or related to active service to include exposure to contaminated water and chemicals at Camp Lejeune and jet fuel in Japan.     

6.  The Veteran does not have current muscle atrophy of the upper and lower extremities.  

7.  The Veteran does not have an unspecified disorder of the upper and lower extremities that is due to exposure to contaminated water and chemicals at Camp Lejeune and jet fuel in Japan.     

8.  Disease or symptoms of a an esophageal disorder were not manifested during service.  

9.  An esophageal disorder first manifested many years after service and is not caused by any in-service event or related to active service to include exposure to contaminated water and chemicals at Camp Lejeune and jet fuel in Japan.     


CONCLUSIONS OF LAW

1.  The criteria for service connection for a thyroid disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).  

2.  The criteria for service connection for a disability manifested by numbness of the upper extremities and peripheral neuropathy and peripheral nerve disease are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 

3.  The criteria for service connection for fibromyalgia are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).  

4.  The criteria for service connection for an unspecified disorder of the upper and lower extremities and a disability manifested by muscle atrophy are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).  

5.  The criteria for service connection for an esophageal disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

The Board finds that the VCAA notice requirements have been satisfied by letters dated in September 2007, issued prior to the initial adjudication of the claims for service connection, and in September 2011.  In these letters, VA informed the Veteran of the evidence and information needed to substantiate a claim for service connection and informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf.  VA informed the Veteran it had to obtain any records held by any federal agency.  These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the letters told the Veteran that he could obtain private records himself and submit them to VA.

The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the September 2007 and September 2011 letters explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal.  The claims were readjudicated in August 2012 Supplemental Statement of the Case, thus curing any lack of timeliness of notice.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board notes that the Veteran's service treatment records are associated with the claims folder.  VA treatment records dated from 1979 to 1984 and from 2009 to 2012 are associated with the claims folder.  The Veteran provided private treatment records in support of his claims.  In November 2007 and September 2011, the Veteran stated that he had no additional information or evidence to submit in support of his claims.  

VA provided examinations in 2009, 2010, 2011, and 2012 to obtain medical evidence as to the nature and likely etiology of the claimed disorders.  The examinations are adequate because the examinations were performed by medical professionals based on review of claims file, solicitation of history and symptomatology from the Veteran, and an examination of the Veteran.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The RO provided the examiners with the following Appendices to VBA Training Letter 11-03: Appendix A, Internet websites related to the issue of contaminated water at Camp Lejeune; Appendix B, Diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987; Appendix C, Websites describing potential health effects of exposure to chemical contaminants present in the water supply of Camp Lejeune between 1957 and 1987; and Appendix D, Notice to Examiners Evaluating Claims Based on Service at Camp Lejeune.  The VA examiners considered the Veteran's service treatment records and the Veteran's own lay statements as to the onset of the symptoms and exposure to chemicals and fuel in service.  The examiners provided a medical opinion as to whether the claimed disabilities are related to active service.  Neither the Veteran nor his representative has challenged the adequacy of the examination obtained for the issue on appeal.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4). 

For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claims and VA met its duty to assist the Veteran.  


Laws and Regulations

Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.   Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

In this case, an organic disease of the nervous system is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).  

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2).  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever).

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

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.A. § 7105; 38 C.F.R. §§ 3.102, 4.3, 4.7.  

Analysis

The Veteran contends that he has muscle atrophy, painful motion, and limitation of motion of the upper and lower extremities, numbness of the upper extremities, peripheral neuropathy, peripheral nerve disease, a disorder of the upper and lower extremities, a thyroid disorder, and a esophageal disorder due to exposure to contaminated water at Camp Lejeune and due to exposure to jet fuel while stationed in Japan.  Service records show that the Veteran was stationed at Camp Lejeune from June 1977 to December 1977.  The Veteran reported that he lived on base.  The Veteran's DD Form 214 indicates that his military occupation specialty was bulk fuel man.  

There are VA policies with regard to the development of claims involving veterans who served at Camp Lejeune between 1957 and 1987.  Those policies involve claims of service connection for disabilities due to contaminated drinking water. It has been established that veterans who served at Camp Lejeune were potentially exposed to contaminants present in the base water supply prior to 1987.  Veterans Benefits Administration (VBA) Training Letter 10-03 (April 26, 2010).  The chemical compounds involved have been associated by various scientific organizations with the possible development of certain chronic diseases.  However, many unanswered questions remain regarding the extent of base water contamination, the type and duration of exposure experienced by base personnel, and the likelihood that contaminant levels in the water supply were high enough to result in a particular disease.  

While those issues are being studied, VA has determined that disability claims from veterans who served at Camp Lejeune during the period in question deserve special handling to ensure fairness and consistency in claims processing.  As a result, adjudication of those claims has been centralized at the Louisville, Kentucky, RO with tracking measures initiated.  

For background purposes, 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.  Those water systems served housing, administrative, and recreational facilities, and 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 closed by February 1985.  The Agency for Toxic Substances and Disease Registry (ATSDR), a branch of the federal Department of Health and Human Services, conducted a Public Health Assessment of Camp Lejeune in 1997, which did not determine whether base personnel experienced any long-term health effects from consumption of the contaminated water.  However, the assessment indicated that the drinking water contaminants at Camp Lejeune created a past public health hazard. 

In 2008, the Navy sent an informational outreach letter to those individuals who could be identified as having served there between 1957 and 1987.  The letter indicated that the Navy was funding health studies to determine when the drinking water was first impacted, who may have consumed it, and whether or not there may be an association between exposure to the water and certain health conditions.   

These studies involved the National Academy of Sciences' National Research Council (NRC) and the ATSDR. Based on a congressional mandate, the Navy requested that the NRC undertake a study to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination.  In the resulting report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009), the NRC reviewed previous work done by the ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual.  To address potential long-term health effects, the NRC focused on diseases associated with TCE, PCE, and other VOCs.  Based on analyses of scientific studies involving these chemicals, the NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants.  

The NRC analysis used categories of potential disease "health outcomes." The categories included: (1) sufficient evidence of a causal relationship; (2) sufficient evidence of an association; (3) limited/suggestive evidence of an association; (4) inadequate/insufficient evidence to determine whether an association exists; and (5) limited suggestive evidence of no association.  The analysis found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants.  However, fourteen diseases were placed into the category of limited/suggestive evidence of an association.  These fourteen diseases are esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myleodisplasic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects.    

According to VBA Training Letter 11-03 (April 27, 2011), the ATSDR, in a 2010 letter to the Navy, indicated its belief that the NRC report minimized the potential long-term health effects of exposure to the water contamination.  The letter stated the view that "there was undoubtedly a hazard associated with drinking the contaminated water at Camp Lejeune."  The ATSDR noted that, although the NRC report found only limited/suggestive evidence for any diseases associated with the contaminated water, other scientific organizations considered the contaminants to be carcinogenic.  For example, regarding TCE and PCE, the International Agency for Research on Cancer (IARC) classifies them as "probable human carcinogens" while the National Toxicology Program (NTP) refers to them as "reasonably anticipated to be a human carcinogen."  Additionally, both IARC and NTP label benzene and vinyl chloride as "known human carcinogens."  Although the ATSDR letter emphasizes the fact that the water contaminants themselves have been generally associated with potential carcinogenic health outcomes in humans, there is currently only speculation as to the extent of exposure and actual effects on the population at Camp Lejeune.  However, the ATSDR indicated that its planned studies, making use of computerized water flow modeling and the epidemiological mortality and health survey, will provide a higher level of exposure predictability and definable health outcomes than are recognized as possible by the NRC.  

Evidence development for disability claims based on water contaminant exposure at Camp Lejeune requires obtaining verification of actual service at Camp Lejeune and as much detail as possible about that service.  It also requires verifying, with medical evidence obtained through a VA medical examination or other authoritative medical source, whether a claimed current disease or disability is at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune.  A number of diseases are identified that meet the criterion of being associated with exposure to the specific Camp Lejeune water contaminants, based on human and experimental animal studies.  Manifestation of any of these diseases would be sufficient to initiate a VA medical examination and request an opinion regarding its relationship to Camp Lejeune service.

Verification of service at Camp Lejeune has already been established.  Additionally, Training Letter 11-03 stated that when not specified in the records, efforts should be made to obtain the length of time served at Camp Lejeune, preferably the dates of arrival and departure.  When feasible, it is also desirable to obtain the Veteran's work duty location and information regarding whether the Veteran resided on base or off base.  There is some indication from the ATSDR that certain base locations may have been associated with higher levels of water contamination.  However, that has not yet been established with certainty.  

According to Training Letter 11-03, scientific organizations, including the NRC and the ATSDR, have determined that some evidence is available that suggests a possible association between development of certain diseases and exposure to the chemicals known to have contaminated the water at Camp Lejeune.  To date, there are no definitive scientific studies that can provide conclusive evidence that an individual who served at Camp Lejeune during the period of water contamination developed a particular disease as a result of that service. Therefore, until scientific evidence shows otherwise, it will be assumed by VA that any veteran who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987.  

Service connection for any disability claimed to have resulted from contaminated water exposure at Camp Lejeune requires sufficient medical evidence that the disability is related to that exposure.  That medical evidence will generally come from a competent and qualified medical examiner who provides an opinion establishing a rational nexus or link between the claimed disability and the exposure.  Some diseases have been scientifically associated to a greater or lesser extent with exposure to the chemical contaminants in the water at Camp Lejeune.  However, that does not mean that service connection can automatically be established for a Camp Lejeune Veteran claiming one of these diseases. It is up to a competent medical authority, based on each Veteran's individual case, to determine whether it is at least as likely as not that the claimed disease or disability has resulted from the contaminant exposure at Camp Lejeune.  Sufficient medical evidence to establish the required nexus may come from a private physician or other competent private medical authority.

In the present case, the Veteran was afforded VA examinations in October 2011, November 2011, and March 2012 to obtain medical evidence as to the etiology of the claimed disabilities and to obtain a medical opinion as to whether the claimed disabilities were caused by exposure to the contaminated water at Camp Lejeune and/or exposure to jet fuel.  The RO provided the examiners with the following Appendices to VBA Training Letter 11-03: Appendix A, Internet websites related to the issue of contaminated water at Camp Lejeune; Appendix B, Diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987; Appendix C, Websites describing potential health effects of exposure to chemical contaminants present in the water supply of Camp Lejeune between 1957 and 1987; and Appendix D, Notice to Examiners Evaluating Claims Based on Service at Camp Lejeune.  

The Board notes that this information replaces the Camp Lejeune "Fact Sheet" intended for VA examiners found in Training Letter 10-03.  This information is intended to provide the examiners with an adequate basis for providing a reasoned opinion which is a critical element for evaluating the claim.  Appendix B of VBA Training Letter 11-03 provides a list of diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987 based on the publication by NRC of its Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009. This report includes a review of studies addressing exposure to TCE, and PCE, and 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.  

Service connection for a thyroid disorder

The Veteran contends that he has a thyroid disorder due to exposure to contaminated water at Camp Lejeune and due to exposure to jet fuel while stationed in Japan.  

The weight of the competent and credible evidence shows that the Veteran does not currently have a thyroid disorder.  The Veteran was afforded VA examinations in November 2011 and June 2009 to determine whether he had a current diagnosis of a thyroid disorder.  The November 2011 report indicates that the examiner reviewed the claims folder and his medical history and conducted a physical examination.  The examiner indicated that he had evaluated the Veteran in 2009 and the Veteran did not have a thyroid disorder diagnosed or treated.  Physical examination revealed no findings, signs, or symptoms attributable to a hyperthyroid condition.  The eyes were normal; there was no evidence of exopthalmos.  The neck was normal; there was no palpable thyroid enlargement or nodules.  Laboratory testing revealed that TSH, T4, and T3 were normal.  The VA examiner opined that the Veteran did 
not have a thyroid disorder and therefore, there was no condition that was the result of service.  

The June 2009 VA examination report indicates that the examiner reviewed the claims folder and the Veteran's medical history and examined the Veteran.  The examiner indicated that thyroid hormone testing was negative.  The examiner stated that the Veteran did not have a diagnosed thyroid disorder; instead, his thyroid gland has been called larger than normal by some.  Physical examination revealed no thyromegaly.  The diagnosis was normal thyroid.  

The Board finds that the June 2009 and November 2011 VA examination findings to be highly probative since the examiners reviewed the claims folder and diagnostic test results, and provided medical conclusions based upon these findings.  Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The VA medical opinion is based on sufficient facts or data, is the product of reliable principles and methods, and the medical professional applied the principles and methods reliably to the facts of the case.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The VA treatment records and private medical records do not show treatment for or diagnosis of a thyroid disorder and this disorder is not listed on the active medical history. The Board also notes that the service treatment records do not show any evidence of a thyroid disorder.  

The weight of the medical evidence is against the Veteran's lay assertions that he has thyroid disorder.  While the Veteran is competent to state that he has observable symptoms, he is not competent to render a medical diagnosis.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue).  There is no evidence showing that the Veteran has medical expertise and he is not competent to provide any medical diagnoses or medical opinions.  

The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded.  See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). 

Accordingly, on this record, the evidence is found to preponderate against the claim that the Veteran has a thyroid disorder that was incurred in service.  The weight of the evidence establishes that the Veteran does not have a current diagnosis of a thyroid disorder.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the claim of service connection for a thyroid disorder is denied.   

Service connection for peripheral neuropathy and a peripheral nerve disease to include numbness of the upper extremities

The Veteran contends that he has numbness of the upper extremities, peripheral neuropathy, and peripheral nerve disease due to exposure to contaminated water at Camp Lejeune and due to exposure to jet fuel while stationed in Japan.  

The weight of the competent and credible evidence shows that the Veteran does not currently have peripheral neuropathy and a peripheral nerve disease to include numbness of the upper extremities.  

The Veteran was afforded a VA examination in June 2009.  He reported having numbness in the hands and arms for 17 years and he was told this was due to a pinched nerve in the neck.  Physical examination revealed some slight decrease in sensation in digit 3 on the right and digits 3, 4, and 5 on the left.  The examiner indicated that the Veteran's peripheral nerve condition was more likely than not the result of nerve irritation in the neck.  The examiner opined that it was less likely than not the result of military service.  The September 2010 VA examination report indicates that the Veteran reported having numbness in the little, ring, and long digits on the right and in the long and ring digits on the left.  Physical examination revealed slight sensory changes in the toes more so on the right than the left great toe.  Sensation was decreased in long, ring, and little fingers on the right and left.  Protective sensation in the toes and fingers was observed.  The diagnosis was sensory change of the bilateral hands suggestive of carpal tunnel syndrome yet no known link to treatment in service.  The examiner noted that the sensory disturbances were recognized yet the observance of these symptoms do not demonstrate cause to be service treatment since the symptoms are present currently and therefore, this condition was less likely than not related to treatment in service.    

The Veteran was afforded a VA examination in October 2011 to determine whether he had a current diagnosis of peripheral nerve disorder.  The examiner reviewed the claims folder and the Veteran's medical history.  The examiner indicated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy.  Physical examination revealed no symptoms attributable to any peripheral nerve condition.  Physical examination revealed that muscle strength of the muscle groups of the upper extremities was 5/5.  The Veteran did not have muscle atrophy.  Sensation testing for light touch was normal in the shoulder, forearm area, hand, and fingers.  The Veteran did not have any trophic changes attributable to peripheral neuropathy.  Examination of the left and right radial nerve, median nerve, ulnar nerve, musculocutaneous nerve, circumclex nerve, long thoracic nerve, and upper, middle, and lower radicular group were normal.  The examiner indicated that there was a normal examination of the upper extremities and there was no evidence of peripheral nerve injury to the upper extremities.  The examiner opined that without objective findings, it was less likely than not that the Veteran had any permanent disability to the upper limbs or any nerve damage.  

The Board finds that the October 2011 VA examination findings to be highly probative since the examiner reviewed the claims folder and diagnostic tests, and provided a medical conclusion.  Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens; supra.  See also Prejean; supra.  The VA medical opinion is based on sufficient facts or data, is the product of reliable principles and methods, and the medical professional applied the principles and methods reliably to the facts of the case.  See Nieves-Rodriguez; supra.  

The VA treatment records and private medical records do not show treatment for or diagnosis of peripheral neuropathy or a peripheral nerve disease and this disorder is not listed on the active medical history. The Board also notes that the service treatment records do not show any evidence of peripheral nerve disease or peripheral neuropathy.    

The weight of the medical evidence is against the Veteran's lay assertions that he has peripheral neuropathy or a peripheral nerve disorder.  While the Veteran is competent to state that he has observable symptoms, he is not competent to render a medical diagnosis.  See Jandreau; supra.  There is no evidence showing that the Veteran has medical expertise and he is not competent to provide any medical diagnoses or medical opinions.  

Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded.  See Brammer; supra.  Accordingly, on this record, the evidence is found to preponderate against the claim that the Veteran has a peripheral nerve disease or peripheral neuropathy that was incurred in service.  The weight of the evidence establishes that the Veteran does not have a current diagnosis of peripheral nerve disease or peripheral neuropathy.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the claim of service connection for peripheral nerve disease or peripheral neuropathy is denied.   


Service Connection for a disorder of the upper and lower extremities to include fibromyalgia, an unspecified disorder of the upper and lower extremities, muscle atrophy, painful joints, and limited motion.  

The Veteran asserts that he has disabilities of the upper and lower extremities due to drinking contaminated water at Camp Lejeune and being exposed to jet fuel while stationed in Japan.  The Board will first address the claim for service connection for fibromyalgia which affects both the upper and lower extremities.  The Board will then address the claim for service connection for muscle atrophy of the upper and lower extremities and an unspecified disorder of the upper and lower extremities due to exposure to the contaminated water at Camp Lejeune and exposure to jet fuel.   

There is competent evidence of a current diagnosis of fibromyalgia.  However, the weight of the competent and credible evidence shows that the fibromyalgia is not due to incident or event in active service to include exposure to contaminated water at Camp Lejeune or jet fuel.  The competent and credible evidence of record shows that fibromyalgia was first diagnosed in 2010, the Veteran did not have chronic or recurrent symptoms of aches and pain in the muscles and joints or other chronic symptoms pertinent to the upper and lower extremities in service and since service, and the fibromyalgia did not manifest in service and is not otherwise related to active service.  The competent and credible evidence of record shows that the Veteran first began to have chronic and recurrent symptoms of aches and pain in the muscles and joints after a December 1984 post-service industrial injury.       

Service treatment records do not show complaints, treatment, or diagnosis of fibromyalgia or other disability of the upper and lower extremities.  The December 1976 enlistment examination indicates that examination of the spine, feet, upper and lower extremities was normal.  The Veteran had no complaints.  March 1977 service treatment records show that the Veteran reported having pain in his low back.  The records noted that the Veteran reported that he had pain in the morning; he had been in training for three weeks.  It was further noted that the Veteran had a history of low back problems three years ago.  A service treatment records dated in December 1977 indicates that the Veteran reported having aching muscles of the past ten hours.  A diagnosis was not made.  An August 1978 discharge examination report indicates that examination of the upper and lower extremities, spine, and feet was normal.  The Veteran had no complaints pertinent to the upper and lower extremities.  

The Veteran has made general assertions that he has had symptoms aches and pain in the muscles and joints all over his body since service.  The Veteran is competent to report an observable symptom such as pain.  See Jandreau; supra.  The Board has the duty to assess the credibility and weight to be given to the evidence.  See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein.  The Court in Madden held that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."  Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997).  

The Board finds that the Veteran's statements that he has had aches and pain in the muscles and joints since service to be competent but such statements are not credible and, therefore, have no probative value.  The Board finds that the Veteran's statements are not credible because the statements are inconsistent with the Veteran's own statements made at the time of service and upon service separation and his own statements made in the course of medical treatment after service.  These statements are not supported by lay and medical evidence of record.  The statements are too general and conclusory.   

As noted, service treatment records do not reflect chronic or recurrent complaints of, treatment for, or a diagnoses related to diffuse joint and/or muscle pain, or any other symptoms of fibromyalgia.  There were complaints of low back pain after three weeks of training.  The Veteran had one complaint of muscle aches in December 1977; he reported having muscles aches for 10 hours.  A diagnosis was not made and he did not seek treatment for muscle or joints aches and pain after December 1977.  He did not have any complaints of aches and pain in the muscles and joints upon service separation.  The Board finds that the weight of the evidence shows that the Veteran did not have chronic or recurrent symptoms of aches and pain in the muscles and joints in service or upon service separation.    

The weight of the competent and credible evidence shows that the Veteran did not have continuous or recurrent symptoms of aches and pain in the muscles and joints after service until December 1984 when he had a post-service industrial accident.  The Board finds that the Veteran's statements that he has had aches and pain in the muscles and joints since service are not credible and, therefore, of no probative value.  The Veteran's statements are not credible because the statements are too general, lack detail, and are not supported by lay and medical evidence of record.  

Post-service treatment records do not reflect complaints or treatment for chronic or recurrent symptoms of aches and pain in the muscles and joints for many years after discharge.  The Veteran separated from active service in September 1978.  The first medical evidence of complaints and treatment for symptoms of aches and pain in the muscles and joints is after a December 1984 industrial accident. The first medical evidence of record of fibromyalgia is in 2010 when a private physician, Dr. Butler evaluated the Veteran and provided this diagnosis.  This diagnosis was confirmed by a September 2001 VA examination and an October 2011 VA examination.  The Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor the Board has considered in adjudicating the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

VA treatment records and hospital records dated during the time period of September 1978 to November 1984 show that the Veteran did not report any complaints or symptoms pertinent to his upper or lower extremities other than some complaints of pain and discomfort in the right shoulder.  He did not report any fibromyalgia symptoms when he sought medical treatment through the VA healthcare system.  Examination of the musculoskeletal system was essentially negative other than some findings pertinent to the right shoulder.  There is no evidence of chronic or recurrent symptoms or complaints of pain and aches in the joints and muscles.  See for instance the July 1979 VA treatment records which indicate that physical examination was within normal limits; the Veteran was treated for alcohol abuse.   

VA hospital records for a detoxification and rehabilitation service indicate that the Veteran was admitted to the program from March 1984 to April 1984.  He was in the detoxification program for a few days and then was transferred to the Alcohol Rehabilitation Program.  The records note that the Veteran's past history except for alcoholism and alcohol-related problems has been unremarkable and he had no major medical problems.  Physical examination of the extremities revealed some limitation of motion and discomfort and pain in the right shoulder but otherwise normal.  Neurological examination was within normal limits.  A March 1984 right shoulder x-ray examination was negative.  Treatment records noted that the Veteran had a rotator cuff injury of the right shoulder, he had right arm pain with exercising, and he had an injury a few years ago that was aggravated by baseball pitching.   

The competent and credible evidence shows that the Veteran first began to have chronic or recurrent symptoms of aches and pain in the muscles and joints after a post-service industrial injury in 1984.  A December 1984 report of accident filed on behalf of an employee indicates that the Veteran experienced severe pain in his middle back after setting up to heat a rail.  A July 1985 report by a private neurologist indicates that that the Veteran had industrial accidents in August 1984 when he injury his back and in December 1984.  

In a February 1986 evaluation report, Dr. Dejanovich indicated that the Veteran underwent an impairment evaluation for a work-related industrial injury.  It was noted that the Veteran was hurt in an industrial injury on December 14, 1984; the Veteran was working on a railroad car when he fell on a track, hit his left shoulder, and experienced pain in the thoraco-lumbar spine.  The Veteran continued to work till December 22, when he saw an orthopedist.  The Veteran could not afford to continue to see this physician and he continued in pain and used over the counter medications to try to relieve the pain.  The Veteran began treatment with another private physician in May 1985; the conservative care relieved the pain but did not clear it up.  In July 1985, the Veteran was referred to a neurologist.  The diagnosis was cervical, thoracic, and lumbosacral sprain due to work related activity and injuries.  The report indicates that the Veteran related that he was very physically active until his back injury.  He reported that he was able to run, bend, lift, participate in sports, and work.  The Veteran reported that now, he was tired most of the time.  He stated that it took him up to three hours to vacuum his living quarters and he could hardly lift a bag of groceries.  He stated that he tried working for a month and a half as a cashier at a filling station where he was constantly on his feet; he constantly experienced pain and he had to give up this job.  The Veteran reported that besides having pain in his back, he had troubles down both legs, and occasional mild pain in the legs.  He reported having left shoulder and chest pain and he felt that his muscles have been wasting away since he has been unable to work.  Physical examination revealed that deep tendon reflexes of the upper and lower extremities were normal.  The Veteran had limited motion of the lumbar spine with pain.  Cervical compression tests were painful but there was full range of the motion of the cervical spine.  Spinal accessory nerves and occipital nerves were hypersensitive to examination.  The right shoulder had relatively normal range of motion with some difficulty with posterior rotation.  The left shoulder also had difficulty with posterior rotation and was painful but the range of motion appeared normal.  The left sciatic notch was sensitive on examination.  The Veteran was able to do heel walking but he had pain in the buttocks during heel walking and pain in the legs during toe walking.  

Dr. Dejanovich reviewed the x-ray examination findings of the cervical, thoracic, and lumbar spine which were performed in 1984 and 1985 and the reports of a CT scan and bone scan which were done in September 1985 and February 1986.  Dr. Dejanovich noted that x-ray examination in May 1985 showed irregularities in the lower bodies of the thoracic spine which were consistent with old Scheuermann's disease and Schmorl Nodes.  The lateral view of the lumbar spine showed there as a possible old fracture-dislocation of the coccyx.  Dr. Dejanovich noted that the August 1985 x-ray examination of the lumbar spine and sacroiliac joints revealed straightening of the normal lordotic curve of the lumbar spine along with limitation of motion of the spine which was indicative of considerable paravertebral soft tissue irritation.  A September 1985 CT scan of the thoracic and lumbar spine revealed irregularities along the margins of the bodies of T8 to T12, minimal Schmorl Node formation at the body at L2, and the irregularities of the anterior body margins of the lower dorsal vertebrae which were indicative of old Scheuermann's disease.  The possibility of a fracture at could not be ruled out especially at T10.  A February 1986 nuclear bone scan did not disclose any abnormal findings.  

Dr. Dejanovich indicated that the Veteran experienced an on-the-job injury to his spine and he had not been able to make a recovery to any degree that would make him fit to go back to the work force and take on a job that requires physical activity.  Dr. Dejanovich stated that the Veteran had developmental errors in his spine known as Scheuermann's disease and Tropism, and he developed Schmorl nodes.  Dr. Dejanovich stated that the pre-existing developmental faults in the Veteran's spine were asymptomatic and were traumatizing and the Veteran was now having a very difficult time in resolving his spinal problems.  Dr. Dejanovich stated that if this condition has not cleared up in one year's time, it is within reason to say the condition is permanent.  Dr. Dejanovich did not think the Veteran should ever return to a physically stressful occupation because further stress or trauma would complicate his already pre-existing condition and because of the industrial injury to his spine, he believed that the Veteran's whole body had been impaired 25 percent.    

A February 1986 evaluation report indicates that the Veteran sustained injuries at work on December 14, 1984 when he was setting up for heating a rail.  The Veteran reported that he pulled out a hose and pulled it over his shoulder and he felt tingling in his back.  He then went underneath the rail on his knees, moved his left shoulder forward to unscrew a cap from a railcar, and he began to raise himself and felt severe pain in the middle of his back.  The Veteran indicated that he finished the job and his back continued to hurt and he had increasing pain.  

The Veteran's subjective complaints included upper, mid, and low back pain and stiffness; restricted neck motion; head and shoulder tiredness and a heavy feeling; pins and needles in the arms and legs; numbness in the arms, legs, and fingers; difficulty in excessive standing, walking, riding and bending; pain radiating to the arms and legs; and pain radiating to the neck, shoulder, arms, hips, and legs.  The diagnoses were cervical subluxation of C2, acute muscle spasm, myofascitis, cephalgia, lumbar vertebrogenic radiculitis, acute traumatic lumbosacral strain with muscle spasm, myofascitis, radiculitis radiating to the sciatic plexes bilaterally.  

The Board finds that the weight of the competent and credible evidence establishes that the Veteran did not have chronic or recurrent symptoms of aches and pain in the muscles and joints or symptoms of fibromyalgia in service or continuously after service until the industrial accident in December 1984.  The service treatment records and the Veteran's own lay statements made during his period of active service do not establish that the Veteran had chronic or recurrent symptoms of aches and pain in the muscles and joints or symptoms of fibromyalgia in service but show that the Veteran had symptoms of low back pain on one occasion and reported having muscle aches on one occasion in service, these symptoms were not recurrent, and he did not have any symptoms upon service separation.  The post-service treatment records and the Veteran's own lay statements made in the course of this medical treatment show that the Veteran did not have chronic or recurrent symptoms of aches and pain in the muscles and joints or symptoms of fibromyalgia in service and for many years after service.  

The Board finds that the statements that the Veteran made during service and at service separation and the statements he made to health care providers during treatment from 1978 to 1984 to have more probative value than the statements made by the Veteran in 2007 and thereafter in connection with his claim for disability compensation.  The Veteran's in-service statements were made contemporaneous to the time of the claimed incidents of toxic exposure.  This probative evidence establishes that the Veteran did not have chronic and recurrent symptoms of aches and pain in the muscles and joints or symptoms of fibromyalgia in service and for many years after service.  

The absence of post-service complaints, findings, diagnosis, or treatment after service for many years is one factor, considered in addition to the other factors stated in this decision, which tend to weigh against a finding of either chronic or recurrent symptoms in service and after service separation.  See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). 

The Board notes that the Veteran first asserted that he had chronic and recurrent symptoms of aches and pain in the muscles and joints and symptoms of fibromyalgia in service and since service in the context of the August 2007 claim for service connection (VA disability compensation).  The Board finds that these assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, and are not credible.  See Charles v. Principi, 16 Vet. App. 370 (2002).  The recent statements of chronic and recurrent symptoms and symptoms of fibromyalgia in service and since service are inconsistent with the service treatment record evidence including the Veteran's own reported medical history and the August 1978 separation examination and the absence of complaints or treatment for several years after service until the 1984 industrial accident.     

Specifically, the service separation examination report reflects that the Veteran was examined and his spine, feet, and upper and lower extremities were clinically normal.  The service separation is contemporaneous to service, so is of more probative value than the more recent assertions made 30 years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later).  

Next, although not determinative, the multi-year gap between discharge from active duty service (1978) and the first evidence of medical treatment in 1984 (almost 6 years after service), evidence of an industrial accident and injury in December 1984, and the first evidence of a medical diagnosis of fibromyalgia in 2010 (32 years after service separation) are significant.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability).

The Veteran's recent account of when his symptoms began is not supported by the evidence of record.  He first began reporting having symptoms in service and since service after he filed his claim for disability compensation.  However, when the Veteran sought to establish medical care with VA in 1979, he did not report a past medical history of recurrent symptoms.  A review of the medical evidence from 1978 to November 1984 reflect that he denied a past medical history of musculoskeletal symptoms except for some right shoulder pain.  Clinical evaluation of the musculoskeletal system was essentially negative; x-ray examination of the right shoulder was negative.     

Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

As such, the Board finds that the Veteran's current recollections and statements made in connection with his claim for benefits to be of lesser probative value than the normal discharge examination and absence of treatment records for a considerable time after service.  See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements).  Therefore, chronic and recurrent symptoms in service and since service until 1984 have not been established either through the medical evidence or through the Veteran's lay statements.

Finally, the Board finds that the weight of the evidence demonstrates that the fibromyalgia is not caused by any in-service event or injury to include exposure to contaminated water at Camp Lejeune and exposure to jet fuel in Japan and is not medically related to service.  

The Veteran submitted a private medical opinion by Dr. Butler in support of his claim.  Dr. Butler provided an opinion as to whether the Veteran's medical problems were caused or substantially or materially contributed to by the conditions the Veteran encountered while in active duty with the Marines Corps specifically chronic exposure to a cocktail of chlorinated hydrocarbons (TCE, DCE, PCE) and PAH's.  Dr. Butler stated that he reviewed the service medical records, medical records after the Veteran's discharge from the military, and the relevant medical literature.  Dr. Butler stated that he had thirty years of experience as a Board Certified general, vascular, and trauma surgeon, and he had experience in the diagnosis and medical and surgical treatment of urological and endocrinological diseases, and this experience included those maladies caused by exposure to toxic chemicals.  

Dr. Butler opined that it was as likely as not that the Veteran contracted fibromyalgia that results in chronic and unrelenting pain in the neck, back, and upper extremities, after he was exposed to the cocktail of chemicals in service that were in the ground water and dust at Camp Lejeune.  Dr. Butler opined that it was at least as likely as not that exposure to jet fuel, petrochemicals, solvents, and probably agent orange for nine months while stationed at Iwakuni, Japan, contributed to the fibromyalgia.  Dr. Butler also opined that it was more likely than not that the Veteran contracted rheumatoid arthritis of the odontoid process as a result of being exposed to the contaminated and toxic ground water and dust at Camp Lejeune and while being stationed in Japan and working as a bulk fueler.  

Dr. Butler provided a review of the Veteran's medical history.  He indicated that the Veteran was seen in sick call at least once for generalized muscular pain and another time for low back pain; the low back pain was diagnosed as low back syndrome.  Dr. Butler noted that after discharge, the Veteran had several jobs.  Dr. Butler stated that the Veteran was plagued by pain that made it hard for him to hold jobs that required physical activity.  Dr. Butler stated that the Veteran was seen by numerous allopathic doctors from the time he was discharged.  Dr. Butler noted that the Veteran was treated in 1984 by an orthopedic surgeon; diagnoses included right shoulder strain and mild rotator cuff strain.  Dr. Butler indicated that a neurologist diagnosed myofascial pain syndrome of the shoulders, neck and upper extremities, and carpal tunnel syndrome.  

Dr. Butler indicated that the Veteran was "cursed' by a debilitating disease caused by the volatile organic compounds that contaminated the ground water and soil at Camp Lejeune.  Dr. Butler indicated that fibromyalgia symptoms included generalized musculoskeletal aching, stiffness, fatigue, low back pain and radiating pain, pain in the neck and across the upper shoulders, swollen joints, joint pain, stiffness, and numbness in the hands and feet.  Dr. Butler indicated that this description fit the Veteran's history perfectly.  Dr. Butler noted that the Veteran had complained of stiffness and muscular pain since being in the Marines and this had become worse as he aged.  Dr. Butler stated that fibromyalgia is one of the diseases that involves chemically exposed groups in more than a dozen countries and these groups subsequently report multisystem symptoms and new onset chemical, food, and drug intolerances.  Dr. Butler opined that it was as likely as not that the Veteran's exposures to these substances for fifteen months while on active duty caused a chemical sensitivity and is responsible for the Veteran's symptoms of fibromyalgia.  Dr. Butler indicated that there were good studies that indicate that fibromyalgia may be one of the sequelea of chronic and long duration exposure to volatile organic compounds, herbicides, heavy metals, solvents, and pesticides.  Dr. Butler indicated that the Veteran served in the Marines and was in good health; he spent fifteen months in intimate contact with all of these toxins contaminants and petro carbons; within weeks of coming in contact with these substances, he started to complain of stomach pains, nausea, low back pain, and lower extremity pain.  Dr. Butler stated that the Veteran's immune system was under attack, he developed a chemical intolerance to the traffic exhaust and gasoline, and this disease is called toxicant induced loss of tolerance (TILT) syndrome and it is thought by researchers to be the cause of chronic fatigue syndrome, chronic fibromyalgia, and gulf war syndrome.  Dr. Butler indicated that the Veteran's symptoms of pain continued after discharge and are with him today.  Dr. Butler stated that the pain symptoms have eluded diagnosis except for the diagnosis of myofascial pain syndrome of the neck, shoulders, and arms.  Dr. Butler stated that fibromyalgia is difficult to recognize unless one examines the total history from the service in the Marines until the present, and after total examination, the diagnosis of fibromyalgia makes sense.         

The Board has the duty to assess the credibility and weight to be given to the evidence.  See Madden; supra.  In evaluating the probative value of medical statements, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).   

In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case.  Id.  The Court indicated that the claims file "[was] not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim."  Id. 

The Board finds the medical opinion by Dr. Butler to be competent; the Board does not question Dr. Butler's skill and expertise as a medical doctor.  However, the Board finds that the opinion by Dr. Butler to have limited credibility and therefore, limited probative value.  The Board finds that Dr. Butler's opinion is not based upon correct facts or sufficient facts and data.  Dr. Butler indicates that the Veteran experienced symptoms of pain within weeks of contact with the contaminants in service.  The service treatment records and the other evidence of record do not support this assertion.  The service medical records do not show treatment for symptoms of pain soon after being stationed in Camp Lejeune.  The service records show that the Veteran reported having low back pain in basic training in March 1977, prior to service in Camp Lejeune or in Japan.  The service treatment records further show that the Veteran sought treatment for aching muscles in December 1977, six months from when he was first stationed in Camp Lejeune.  

Dr. Butler also stated that the Veteran had continuous symptoms of pain and stiffness since service and he was treated for pain since discharge.  However, the weight of the competent and credible evidence shows that the Veteran did not have chronic or recurrent symptoms of aches and pain in the muscles and joints in service and since service until the December 1984 industrial accident.  He did not report any symptoms of muscles aches, joint pain, or stiffness upon discharge examination.  The weight of the competent and credible evidence shows that the Veteran began to have chronic and recurrent symptoms of muscle and joint pain and aches from December 1984, when he was injured in an industrial accident.  The record shows no treatment for symptoms of aches and pain in the muscles and joints or musculoskeletal complaints from 1978 to 1984.  The record shows treatment for alcohol abuse and detox and the Veteran did not report a medical history significant for such complaints at that time.  Examination of the musculoskeletal and neurological systems were negative except for complaints of pain and discomfort in the right shoulder.    

Dr. Butler apparently reviewed the private medical records of medical treatment in 1984 and thereafter but he does not refer to the industrial accident or consider whether the industrial accident caused the diagnosis of myofascial pain or the current diagnosis of fibromyalgia.  Further, Dr. Butler indicates that that the Veteran was awarded Social Security Administration (SSA) disability benefits based upon depression and the symptoms of pain.  However, the SSA records show that the benefits were awarded based upon depression.  

The Board finds that Dr. Butler's medical opinion is based upon an inaccurate facts and an inaccurate factual premise, and therefore, this medical opinion has limited probative value.  Medical opinions based upon insufficient facts and data or based upon an inaccurate premise have limited, if any, probative value.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Swann v. Brown, 5 Vet. App. 229, 233 (1993).  

The Board also points out that at the end of the medical opinion, Dr. Butler himself points out how inconclusive the medical research is concerning the sequelea of exposure to toxins and the cause of fibromyalgia.  Dr. Butler indicated that there were good studies that indicate that fibromyalgia may be one of the sequelea of chronic and long duration exposure to volatile organic compounds, herbicides, heavy metals, solvents, and pesticides.  Dr. Butler further stated that the disease called TILT syndrome was thought by researchers to be the cause of chronic fatigue syndrome, chronic fibromyalgia, and gulf war syndrome.  The Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bloom v. West, 12 Vet. App. 185, 187 (1999).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993). 

The Board finds the October 2011 and the March 2012 VA medical opinions to have great probative value.  The Veteran was afforded a VA examination in October 2011 and an addendum opinion was obtained in March 2012.  The VA examiner reviewed the claims folder, considered the Veteran's reported medical history, examined the Veteran, and offered an opinion as to the etiology of the fibromyalgia and an opinion as to whether the Veteran has a disorder of the upper and lower extremities due to the exposure to contaminated water at Camp Lejeune and jet fuel.  In the October 2011 VA examination report, the VA examiner stated that the Veteran's claims file and prior medical history were completely reviewed.  The examiner noted that the Veteran reported that his problem started more than 30 years ago and he always had pain and aching in his body.  The Veteran reported that his legs were heavy and his arms were weak.  He stated that he was able to work till 2007 managing his own cable company business, and in 2010, fibromyalgia was diagnosed.  The Veteran reported having constant pain with severity of 7/10, flare-ups 3-4 times a week, and headaches and anxiety due to the fibromyalgia.  He was not currently taking any medications for the fibromyalgia and he was not in therapy; it was noted that therapy and medication did not work for the Veteran.  The Veteran reported that he had widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbance, paresthesia, headaches, depression, and anxiety.  He reported that the symptoms were constant or near constant.  The Veteran had tender points for the pain in the low cervical region, occiput, trapezius muscle, supraspinatus muscle, lateral epicondyle, gluteal, and greater trochanter.  

The VA examiner opined that the Veteran's fibromyalgia was not related to the service or a service-connected disability or to the drinking water at Camp Lejeune.  The examiner indicated that the rationale was that there was no evidence that drinking contaminated water or any kind of chemicals can cause fibromyalgia.  The examiner indicated that the fibromyalgia was diagnosed many years after discharge from service, and there is no scientific relationship between fibromyalgia and exposure to TCE, PCE, or a combination of these chemicals.  The VA examiner also opined that it was at least as likely as not that the Veteran's service and service-connected conditions or exposure to contaminated water did not aggravate the fibromyalgia.  

In the March 2012 VA medical opinion, the examiner stated that he reviewed the claims folder.  The VA examiner opined that it was less likely than not that exposure to jet fuel and water in Camp Lejeune caused fibromyalgia or rheumatoid arthritis.  The VA examiner stated that the rationale was that there was no evidence in the literature to show that exposure to jet fuel could cause rheumatoid arthritis or fibromyalgia.  The VA examiner concluded that Dr. Butler's claim was not supported by evidence based medicine.  The VA examiner also concluded that it was less likely than not that exposure to jet fuel or water in Camp Lejeune have aggravated the Veteran's current condition and symptoms.  

The Board finds the 2011 and 2012 VA medical opinions to have great evidentiary weight as the opinions reflect a comprehensive and reasoned review of the entire evidentiary record.  The VA examiner reviewed the claims folder including the service treatment records and the Veteran's medical history, considered the Veteran's own reported medical history, and examined the Veteran before rendering the medical opinion.  The examiners considered the following Appendices to VBA Training Letter 11-03: Appendix A, Internet websites related to the issue of contaminated water at Camp Lejeune; Appendix B, Diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987; Appendix C, Websites describing potential health effects of exposure to chemical contaminants present in the water supply of Camp Lejeune between 1957 and 1987; and Appendix D, Notice to Examiners Evaluating Claims Based on Service at Camp Lejeune.  In the 2012 VA medical opinion, the VA examiner specifically addressed Dr. Butler's medical opinion.  Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens, supra; see also Prejean; supra.  The medical opinions are based on sufficient facts and data.  See Nieves-Rodriguez; supra.  

The Board finds the 2011 and 2012 VA medical opinions to have great evidentiary weight as the opinions are supported by and are consistent with the studies conducted by the NRC, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009).  In the 2009 studies, NRC found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants.  The NRC found that various diseases have a limited/suggestive association to certain contaminants found in water supplies at Camp Lejeune.  The fourteen diseases that have the limited association are esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myleodisplasic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects.  Fibromyalgia is not identified as a disease with a limited or suggestive association to the contaminated water exposure at Camp Lejeune.  The ATSDR found that scientific organizations other than NRC found the Camp Lejeune water contaminants themselves have been generally associated with potential carcinogenic health outcomes in humans.  The Board notes that fibromyalgia is not a cancer.   

For these reasons, the Board has assigned great probative weight to the VA medical opinions and finds that the VA opinions outweigh the opinion by Dr. Butler.  The Board finds that the 2011 and 2012 VA medical opinions, the service treatment records, and the post service evidence establish that the fibromyalgia first manifested in 2010 over 30 years after service separation and is not related to active service to include the exposure to contaminated water in Camp Lejeune and jet fuel in Japan.     

Two additional VA medical opinions are associated with the claims file.  A June 2009 VA examination report indicates that the examiner determined that the Veteran did not have a muscle disorder and a diagnosis of fibromyalgia was not made.  The examiner further indicated that he was not aware of any connection between a muscle disorder and exposure to the contaminated water at Camp Lejuene.  The June 2009 VA medical opinion weighs against the claim for service connection since the examiner found that the Veteran did not have a muscle disorder due to exposure to the contaminated water at Camp Lejeune.  

The September 2010 VA examination report indicates that the VA examiner related the findings of fibromyalgia to the findings in service.  However, the VA examiner noted that the Veteran had a history of continued illness and myalgia since service.  The Board finds that the VA examiner relied upon an inaccurate factual premise.  As discussed in detail above, the Board found that the Veteran did not have chronic or recurrent symptoms of fibromyalgia in service; the service treatment records only show two instances of treatment, once for low back pain and once for muscle aches.  The Court has found that a medical opinion based on an inaccurate factual premise is not probative.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  Thus, this medical opinion has no probative value and is not sufficient nexus evidence of a relationship between the fibromyalgia and service.   

The Veteran himself has attempted to relate the current diagnosis of fibromyalgia to his active service, specifically to the exposure to contaminated water in Camp Lejeune and to the exposure to jet fuel.   The Veteran, as a lay person, is competent to describe observable symptoms such as pain and firsthand events.  Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, an opinion as to the etiology and onset of fibromyalgia falls outside the realm of common knowledge of a lay person.  See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer).  Some medical issues require specialized training for a determination as to diagnosis and causation; therefore such issues are not susceptible of lay opinions on etiology.  

Lay testimony on the question of relating the current fibromyalgia is not competent in the present case because the Veteran is not competent to state that this disease was incurred in service.  See Davidson v. Shinseki, 581 F.3d 1313, 316 (Fed. Cir. 2009); Kahana (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent).  An opinion of etiology would require medical expertise and knowledge of the complexities of the musculoskeletal and neurologic systems and it is not shown that the Veteran has this knowledge or expertise.  

The Board finds that the weight of the competent and credible evidence establishes that the current diagnosis of fibromyalgia did not manifest in service, the Veteran did not have chronic or recurrent fibromyalgia symptoms in service or soon after service, the fibromyalgia first manifested in 2010 many years after service separation, and it is not medically related to injury or other incident of active service.  

For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for fibromyalgia and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

The Board finds that the weight of the evidence demonstrates that the Veteran does not have an unspecified disorder of the upper and lower extremities in addition to the fibromyalgia and does not have a current disability manifested by muscle atrophy.  The competent and credible evidence of record establishes a diagnosis of fibromyalgia.  The symptoms of muscle aches and pain, joint pain, and limited motion have been attributed to this diagnosis.  See the VA medical opinions dated in October 2011 and March 2012.  

The weight of the competent and credible evidence shows that the Veteran does not have a disability manifested by muscle atrophy and there was no objective findings of current muscle atrophy.   The VA examination report dated in October 2011 shows that physical examination revealed that muscle strength of the muscle groups of the upper extremities was 5/5.  The Veteran did not have muscle atrophy.  The examiner indicated that there was a normal examination of the upper extremities.  The examiner opined that without objective findings, it was less likely than not that the Veteran had any permanent disability to the upper limbs.  The September 2010 VA examination report indicates that there was no muscle atrophy on physical examination and muscle strength was 5/5.  There were no findings to suggest rheumatoid arthritis.  The June 2009 VA examination report indicates that the diagnosis was normal muscle and joint examination.  Physical examination revealed normal muscle strength.  There was no muscle atrophy.  A muscle disorder was not detected.  The VA treatment records and private medical records do not show treatment for or diagnosis of an unspecified disorder of the upper and lower extremities or a muscle disorder other than fibromyalgia.      

The weight of the medical evidence is against the Veteran's lay assertions that he has an unspecified disorder of the upper and lower extremities or muscle atrophy.  While the Veteran is competent to state that he has observable symptoms, he is not competent to render a medical diagnosis.  See Jandreau; supra.  There is no evidence showing that the Veteran has medical expertise and he is not competent to provide any medical diagnoses or medical opinions.  

Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded.  See Brammer; supra.  Accordingly, on this record, the evidence is found to preponderate against the claim that the Veteran has a diagnosis of an unspecified disorder of the upper and lower extremities or a disability manifested by muscle atrophy.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the claim of service connection for an unspecified disorder of the upper and lower extremities or a disability manifested by muscle atrophy is denied.   

Service Connection for an Esophageal Disorder

The Veteran asserts that he has an esophageal disorder due to exposure to contaminated water in Camp Lejeune and exposure to jet fuel in Japan.  The Veteran contends that he developed a swallowing disorder in 2007 and he became fearful of swallowing.  See the June 2009 VA examination report.  

Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the current esophageal disorder, which has been identified as dysphagia, did not manifest in service and is not otherwise related to active service.  

There is competent evidence of a current esophageal disorder.  A November 2011 VA examination report indicates that the Veteran has dysphagia which is described as a problem with swallowing solids.  The Veteran did not have reflux and treatment for this condition.  The Veteran indicated that he was not told by his treating clinicians why he has this.  The diagnosis is deglutition disorder.  The examiner noted that the Veteran had the symptom of dysphagia and he has to exercise caution when he eats solids, eat smaller amounts, and wash it down with liquids.  The examiner reviewed past diagnostic procedures and noted that in 2008, an upper endoscopy was performed and revealed no strictures.  In 2008, an Esophagram (barium swallow) was performed and revealed a delay in contrast passage.  The VA examiner opined that the Veteran had a swallowing disorder but an etiology for this has not identified.  The VA examiner further stated that the Veteran did not have a diagnosis identified that is the result of service, and while the Veteran has a disorder causing disability it is less likely than not the result of service to include contaminated water at Camp Lejeune.  

The June 2009 VA examination report indicates that the Veteran complained of dysphagia with solids and liquids with every meal for the last two years.  The diagnosis was dysphagia.  The examiner indicated that there was no medical explanation for the dysphagia, he was not aware of a connection to the Camp Lejeune contaminated water exposure, and it was less likely than not related to the exposure to contaminated water at Camp Lejeune.  

The Board finds the June 2009 and November 2011 VA medical opinions to have great evidentiary weight as the opinions reflects a comprehensive and reasoned review of the entire evidentiary record.  The VA examiners reviewed the claims folder including the service treatment records and the Veteran's medical history, considered the Veteran's own reported medical history, and examined the Veteran before rendering the medical opinion.  The VA examiners considered the medical studies and research regarding the chemical exposures at Camp Lejeune.  The medical opinions are based on sufficient facts and data and are consistent with the other evidence of record including the NRC studies in 2009.  For these reasons, the Board has assigned great probative weight to the opinions of the VA examiners and finds that it outweighs the statements of the Veteran and his lay assertions that he has a swallowing disorder due to service.  The Board finds that the 2009 and 2011 VA medical opinions, the service treatment records, and the post service evidence establish that the Veteran's dysphagia first manifested many years after service separation and is not related to active service.    

The Veteran himself has attempted to relate the current dysphagia to his active service, specifically to the exposure to contaminated water in Camp Lejeune and to the exposure to jet fuel.   The Veteran, as a lay person, is competent to describe observable symptoms such difficulty swallowing, and firsthand events.  Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, an opinion as to the etiology and cause of dysphagia falls outside the realm of common knowledge of a lay person.  See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer).  Some medical issues require specialized training for a determination as to diagnosis and causation; therefore such issues are not susceptible of lay opinions on etiology.  

The Board finds that the weight of the competent and credible evidence establishes that the current dysphagia did not manifest in service and it is not medically related to injury or other incident of active service.  For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for an esophageal disorder to include dysphagia and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 



ORDER

Service connection for a thyroid disorder to include as due to exposure to contaminated water at Camp Lejeune is denied.     

Service connection for peripheral neuropathy and peripheral nerve disease to include numbness of the upper extremities is denied.     

Service connection for fibromyalgia is denied.     

Service connection for a disability manifested by muscle atrophy and an unspecified disorder of the upper and lower extremities is denied.     

Service connection for an esophageal disorder to include dysphagia is denied.      




____________________________________________
M. Tenner
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs