Citation Nr: 1751461 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 04-41 508A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for hypertension, to include as due to exposure to contaminated water at Camp Lejeune. 4. Entitlement to service connection for infertility, to include as due to exposure to contaminated water at Camp Lejeune. 5. Entitlement to service connection for a sleep disorder, diagnosed as insomnia, to include as due to exposure to contaminated water at Camp Lejeune. 6. Entitlement to service connection for vertigo, to include as due to exposure to contaminated water at Camp Lejeune. 7. Entitlement to service connection for migraines, to include as due to exposure to contaminated water at Camp Lejeune, and/or as secondary to an acquired psychiatric disorder. 8. Entitlement to service connection for an acquired psychiatric disorder, to include as due to exposure to contaminated water at Camp Lejeune. 9. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from September 1979 to June 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) from October 2004, September 2009, and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Atlanta, Georgia and Nashville, Tennessee. The matters are now handled by the RO in Louisville, Kentucky. In a July 2006 decision, the Board in part, denied service connection for left ear hearing loss. The Veteran perfected a timely appeal of the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2008 Order, the Court vacated the Board's July 2006 decision with regard to the issue of service connection for left ear hearing loss and remanded the case to the Board for action consistent with the Memorandum Decision. In a February 2010 decision, the Board reopened the Veteran's claim for entitlement to service connection for left ear hearing loss and remanded the claim for further development. Subsequently, the Veteran completed a substantive appeal for multiple additional issues. See September 2009 rating decision, September 2009 statement, April 2010 rating decision, August 2010 notice of disagreement, December 2012 Statement of the Case, and January 2013 VA Form 9. In April 2014, the Board remanded these claims for additional development. The issues of entitlement to service connection for an acquired psychiatric disorder, entitlement to service connection for migraines, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Entitlement to service connection for right ear hearing loss was last denied by the RO in a December 1990 rating decision; the Veteran did not complete a timely substantive appeal. 2. The evidence submitted since the December 1990 rating decision, pertinent to the claim for service connection for right ear hearing loss, is cumulative and redundant, and does not relate to an unestablished fact necessary to substantiate the claim. 3. Left ear hearing loss was noted on the Veteran's June 1979 enlistment examination report. 4. The Veteran's preexisting left ear hearing loss did not increase in disability during service. 5. The Veteran served at Camp Lejeune and was exposed to contaminated water during that service. 6. Hypertension was not present during service or for many years thereafter and is not etiologically related to any incident of active duty service, to include exposure to contaminated water at Camp Lejeune. 7. The Veteran's infertility is not causally or etiologically due to service, to include exposure to contaminated water at Camp Lejeune. 8. The Veteran's sleep disorder, diagnosed as insomnia, is not causally or etiologically due to service, to include exposure to contaminated water at Camp Lejeune. 9. The Veteran's vertigo was not present during service or for many years thereafter and is not etiologically related to any incident of active duty service, to include exposure to contaminated water at Camp Lejeune CONCLUSIONS OF LAW 1. The December 1990 rating decision that denied entitlement to service connection for right ear hearing loss is final. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. §§ 3.105 (a), 3.156, 20.1103 (2016). 2. The evidence received since the December 1990 rating decision is not new and material, and the Veteran's claim for service connection for right ear hearing loss is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016). 3. Left ear hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2016). 4. Service connection for hypertension, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is not established. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). 5. Service connection for infertility, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is not established. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). 6. Service connection for a sleep disorder, diagnosed as insomnia, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is not established. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). 7. Service connection for vertigo, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is not established. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). Adequate notice pertaining to the Veteran's claims was satisfied by letters provided to the Veteran in May 2003, February 2010 and February 2016. The duty to notify has been fulfilled. The duty to assist has also been met, and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records, VA treatment records, and private treatment records. In February 2010 and April 2014, the Board remanded these claims for additional development. The Board notes that the Veteran was not afforded in-person examinations for the issues of entitlement to service connection for infertility, vertigo, hypertension, and a sleep disorder. However, the evidence of record clearly establishes the diagnoses of these disorders, and the claims file was sent to an examiner who is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project in order to obtain medical opinions. The examiner did not indicate that in-person VA examinations were necessary to provide the requested medical opinions. The opinions provided were based on a review of the claims file, considered the Veteran's lay assertions, and are supported by sound and detailed rationale. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the evidence indicates that there has been substantial compliance with the Board's remand directives for these issues. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Whether New and Material Evidence Has Been Received to Reopen a Previously Denied Claim for Entitlement to Service Connection for Right Ear Hearing Loss The Veteran seeks to reopen his claim for entitlement to service connection for right ear hearing loss. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record with respect to this claim reflects that a claim for service connection for right ear hearing loss was last denied in a rating decision of December 1990. The Veteran did not express timely disagreement or submit new and material evidence within one year and subsequently the December 1990 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be reopened if new and material evidence is submitted. In this instance, since the December 1990 rating decision denied the claim on the basis that the Veteran's right ear hearing was normal on enlistment and separation, thereby not indicating that his post-service hearing loss was due to service, the Board finds that new and material evidence would consist of evidence that the Veteran's right ear hearing was not normal on enlistment and separation or that he has a current right ear hearing loss that is linked to service. Evidence received since the December 1990 decision consists of numerous medical records and lay statements. Unfortunately, the evidence submitted does not indicate that the Veteran has had a diagnosis of right ear hearing loss as defined by VA regulations at any time post service. Additionally, no evidence was submitted that refutes the December 1990 rating decision's findings that the Veteran's right ear hearing was normal on entrance and separation from service. Thus, the evidence submitted is cumulative or redundant of information and evidence considered in prior denials. The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a Veteran's testimony should not be rejected as not being material solely because he or she is a layperson, or because contemporaneous medical evidence is no longer available to corroborate it. Id.; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, in the current appeal the Veteran has not provided evidence that he has a current diagnosis of right ear hearing loss, as defined by VA regulations. Accordingly, his contentions made during the current appeal may not be deemed both new and material. Shade, supra. Since the evidence submitted after the December 1990 rating decision is not new and material, the claim for service connection for right ear hearing loss is not reopened. The benefit sought is denied. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Entitlement to Service Connection for Left Ear Hearing Loss The Veteran asserts that his left ear hearing loss pre-existed service and was aggravated during service. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled into service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. 1111; 38 C.F.R. § 3.304 (b); see also VAOPGCPREC 3-03; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability of which the Veteran later complains. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304 (b). For service connection claims involving a preexisting injury or disease, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for aggravation of that disability. In that case, § 1153 applies and the burden falls on the Veteran to establish an increase in disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b). Importantly, the Veteran's service treatment records are significant for findings of left ear hearing loss. Specifically, the Veteran's June 1979 enlistment examination shows that he had significant left ear hearing loss in all frequencies upon entry to service. Thus, the presumption of soundness does not apply, and as noted above, the Veteran may only bring a claim of aggravation of the disorder. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). The burden falls on the Veteran to establish an increase in disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). In this case, the most probative evidence of record shows that the Veteran's preexisting left ear hearing loss did not increase in disability during his active service. As noted, the Veteran entered into service with left ear hearing loss. The Veteran's entrance examination audiometry report showed that at the frequencies of 500, 1000, 2000, 3000, 4000 and 6000 the Veteran's left ear auditory thresholds were 60, 75, 70, 80, 60 and 50 Hertz, respectively. It was noted that he had hearing loss in all frequencies in the left ear. In January 1980, the Veteran complained of hearing loss in the left ear; it was noted that a voice test was completed and he could hear but there was a possible malfunction of the machine. An additional note in January 1980 stated that the Veteran had hearing loss in the left ear prior to enlistment, and that audiogram results were checked and the same each time. It was noted that nothing could be done because the Veteran came into the service with the problem. In June 1980, the Veteran was seen again for left ear hearing loss, with a note that he was treated off and on since January 1980 with no improvement. On June 12, 1980, the Veteran's left ear auditory thresholds were 75, 70, 70, 85, 65, and 80 Hertz, respectively. An additional audiological test on June 16, 1980 revealed thresholds of 80, 70, 70, 70, 70, and 75 Hertz, respectively. The Veteran's separation examination noted left ear auditory thresholds were 75, 70, 70, 85, 65, and 80 Hertz, respectively, and he was diagnosed with high frequency hearing loss in the left ear. The Board notes the April 2004 statement from the Veteran's private physician indicating that the Veteran provided him with some medical records that documented that the Veteran entered into service with left ear hearing loss. The physician stated that the Veteran reported that his hearing loss was aggravated during service when a grenade exploded near him. The physician then summarized several treatment records documenting the Veteran's audiological testing. The physician noted that he was not an ear, nose, throat (ENT) specialist, and his statement merely summarized what was found in review of documentation provided by the Veteran. Additionally of note is a statement from a private physician in April 2004 opining that there was "no question" that the Veteran's hearing became worse in the military but the physician was unable to state whether the increase in severity was caused by exposure to acoustic trauma during service. Importantly, however, the preponderance of evidence indicates the Veteran's left ear hearing loss did not undergo an increase in severity during service. For example, the July 2005 VA examiner stated that it was unlikely that the Veteran was exposed to enough loud noise in service to cause increased hearing loss in his left ear, considering his right ear continued to have normal hearing. Similarly, a November 2010 VA examiner stated the Veteran's pre-existing left ear hearing loss less likely as not increased in severity in military service, explaining that the Veteran entered the military with profound hearing loss, and audiometric findings continued to indicate the same profound hearing loss throughout his service. The examiner noted that the Veteran's left ear hearing loss has continued to decline; however, this is more likely than not due to natural aging process. A January 2012 VA examiner also stated that the Veteran's left ear hearing loss was documented to be present before service, and was noted on his initial audiogram in 1979. The examiner explained that in that the loss was total on entry to the service, there was no progression. A April 2012 VA examiner stated that an initial review of records indicated a possible threshold shift in the left ear from entrance examination to separation examination; however, a certified examiner with appropriate knowledge of audiologic testing recognizes that the test results are in question and considered likely not valid due to lack of appropriate masking employed and crossover. The examiner explained there is no indication that the in-service examiners employed effective masking at the Veteran's entrance and exit exams, therefore there is a probability that his reported thresholds were not accurate. As such, there is no scientific basis to determine if his hearing actually changed from his entrance to exit exams. Finally, a March 2016 VA examiner opined that there was no significant threshold sift through 4000 Hertz from enlistment to separation, indicative of no permanent auditory damage or progression of hearing loss while on active duty, according to Department of Defense standards. The examiner stated that medical records throughout service indicated left ear hearing loss was present at entrance, with no change or decrease in hearing while on active duty. The examiner concluded that while the etiology of the Veteran's left ear hearing loss is unknown, it existed prior to active duty with no aggravation noted in audiograms or medical records during service. As such, the Board finds that the evidence overall demonstrates that there was no increase in severity of the Veteran's left ear hearing loss during service. While the Board acknowledges the private medical opinion indicating there was an increase in severity during service, the preponderance of evidence indicates that the Veteran's left ear hearing loss did not undergo an increase in disability during service; thus, the presumption of aggravation does not attach. The Veteran has not met his burden of showing aggravation. The preponderance of the evidence of record discussed above shows that his pre-existing left ear hearing loss was not aggravated during service. Thus, because this disability pre-existed active service and was not aggravated during that time, it is not service connected. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. While the Veteran contends that his left ear hearing loss was aggravated during his period of service, there is no indication that the Veteran has specialized training in hearing loss. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 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). Here, the preponderance of evidence is against the claim and indicates the Veteran's left ear hearing loss was not aggravated during service. The Board finds these medical opinions to be more probative than the Veteran's lay assertions as to the etiology and severity of the Veteran's left ear hearing loss. In this regard, the VA examiners reviewed the claims file and considered the Veteran's service treatment records. Thereafter, the examiners provided adequate reasoning and bases for the opinion that the Veteran's military service did not aggravate his left ear hearing loss. For these reasons, the opinions by the VA examiners are of greater probative value than the Veteran's contentions regarding his left ear hearing loss. In sum, the Board finds that the most probative evidence establishes that the Veteran's left ear hearing loss existed prior to his entry into service, was noted on his enlistment examination, and did not increase in disability during service. Accordingly, service connection for the Veteran's left ear hearing loss is not warranted. IV. Entitlement to Service Connection for Hypertension, Infertility, Sleep Disorder, and Vertigo as Due to Exposure to Contaminated Water at Camp Lejeune The Veteran seeks entitlement to service connection for hypertension, infertility, a sleep disorder, and vertigo. The Veteran contends that these disorders are a result of his time in service, to include exposure to contaminated water at Camp Lejeune, North Carolina. The Board notes that the Director of Compensation and Pension Service issued Training Letter 10-03 in April 2010 in which it was acknowledged that persons residing or working at the U.S. Marine Corps Base at Camp Lejeune from the 1950's to the mid-1980's were potentially exposed to drinking water contaminated with volatile organic compounds. In this regard, in the early 1980's, it was discovered that two on-base water-supply systems at Camp Lejeune were contaminated with the volatile organic compounds (VOCs) trichloroethylene, a metal degreaser, and perchloroethylene, a dry cleaning agent. 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. 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 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. The NRC 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, including esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. The Board notes that while the Training Letter includes a list of diseases determined to be potentially associated with exposure to contaminated drinking water at Camp Lejeune, there are currently no "presumptive" diseases attributed to service at Camp Lejeune. Hypertension First, the Board notes that the Veteran has a current diagnosis of hypertension. See December 2015 VA Active Problems List. As such, element (1) set forth under Shedden, current disability, for this claim has been satisfied. See Shedden, supra. The Veteran's service treatment records are silent for any complaints, treatment, or diagnoses related to hypertension. However, the Veteran's military personnel records show that he was stationed at Camp Lejeune, North Carolina in 1979 and 1980. Thus, it is conceded that the Veteran was exposed to contaminated drinking water at Camp Lejeune. As such, Shedden element (2) has been satisfied. Id. Unfortunately, Shedden element (3), nexus, is not satisfied. In March 2016, a VA examiner opined that the Veteran's hypertension is not due to exposure to contaminated water. The examiner stated that studies that have reported finding a connection between solvent exposure and an increased risk of developing hypertension have all used workplaces with levels of exposure significantly higher than what is believed to have been the usual level at Camp Lejeune, and those that have found a connection and quantified the duration of exposure have found that the correlation is strongest or was only studied or was only significant in exposures lasting 5 years or more. In addition, the examiner noted that no literature was located that found solvents exposure correlated with elevated blood pressure beginning more than 25 years after the exposure ended. The examiner explained that the studies that found any correlation, found elevated blood pressure before the exposure ceased and in many of these studies the blood pressure improved as the time since last exposure increased. In addition, no literature was located which reported low level, short-term solvent exposure as a cause of any persistent cardiovascular conditions. The examiner noted the Veteran was at Camp Lejeune for 0.52 years, ending in June 1980. His blood pressure on his enlistment physical exam, conducted in July 1979, was 138/72. At the time of his release from active duty physical exam, in June 1980, his blood pressure was 116/84. Thus, the examiner stated the Veteran's blood pressure was not elevated during the potential exposure. The first mention of hypertension in the Veteran's extensive medical records is from 2007. In addition, the Veteran was asked about his hypertension in 2010 and reported that he was diagnosed 4 years earlier (2006) and he was asked again in 2014, and he replied that the onset was about 2006. Continuing, the examiner explained that there are many well-known risk factors for developing hypertension. These include obesity as indicated by a high body mass index (BMI), age, tobacco use, high cholesterol, certain medications, cocaine abuse, alcohol abuse, being African American, vitamin D deficiency, not being physically active, stress and sleep apnea. The examiner stated that based on the available medical records, the Veteran has all of these risk factors. Additionally, the examiner noted that the National Research Council (NRC) of the National Academies published a study in 2009, which looked at the potential health effects of exposure to contaminated groundwater at Camp Lejeune and reported that there continues to be "inadequate/insufficient evidence" to determine whether an association exists between solvent exposure and cardiovascular disease. Concluding, the examiner stated that therefore, based upon the currently available literature, the estimated small magnitude of the Veteran's potential solvent exposure at Camp Lejeune, the extremely short time that he was at Camp Lejeune, the length of time between when he was last stationed there and the onset of the problem, and his multiple risk factors for hypertension, the examiner opined, to a reasonable degree of medical certainty, that the Veteran's hypertension is not due to or related to his exposure to contaminated water at Camp Lejeune. There are no medical opinions to the contrary, of record. In evaluating whether entitlement to service connection has been established, the Board notes that the Veteran's hypertension is considered a chronic disease under 38 C.F.R. § 3.309. However, the record reflects that his hypertension did not manifest during service or for many years thereafter. As the Veteran's hypertension did not manifest to a degree of 10 percent or more within one year of separation, the chronic disease presumption does not apply. The Board also finds that the Veteran's hypertension is not related to exposure to contaminated water at Camp Lejeune. In this regard, the Board finds that the March 2016 VA medical opinion is the most probative medical evidence of record. The March 2016 VA examiner reviewed the Veteran's claims file and provided an opinion that was supported by a detailed explanation. Given the fact that the March 2016 VA examiner is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project, he is well qualified to know the current state of medical knowledge in this area. The Board therefore finds that the most probative evidence does not support the conclusion that the Veteran's hypertension is etiologically related to his exposure to contaminated water at Camp Lejeune. In addition, the evidence of record does not indicate that the Veteran's hypertension is otherwise related to his period of active service; the Veteran does not assert a relationship to service other than exposure to contaminated water at Camp Lejeune. The Board has considered the Veteran's own statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his observable symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the Veteran's lay statements are outweighed by the service treatment records and post-service treatment records. Further, the Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though the Veteran is competent to report his symptoms, he is not competent to provide an opinion as to nature and etiology of his hypertension. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for hypertension. Infertility First, the Board notes that the Veteran has a current diagnosis of male infertility. See December 2015 VA Active Problems List. The Veteran was also diagnosed with low sperm count with ejaculatory duct obstruction. See February 2010 Report from Center for Applied Reproductive Science. As such, element (1) set forth under Shedden, current disability, has been satisfied. See Shedden, supra. The Veteran's service treatment records are silent for any complaints, treatment, or diagnoses related to infertility. However, as noted previously, it is conceded that the Veteran was exposed to contaminated drinking water at Camp Lejeune. As such, Shedden element (2) has been satisfied. Id. Unfortunately, Shedden element (3), nexus, is not satisfied. In March 2016, a VA examiner opined that the Veteran's infertility is not due to exposure to contaminated water. The examiner explained that the NRC of the National Academies published a study in 2009, which looked at the potential health effects of exposure to contaminated groundwater at Camp Lejeune, and it was reported that there continues to be "inadequate/insufficient evidence" to determine whether an association exists between chronic exposure to TCE or PCE and male infertility. There are no medical opinions to the contrary, of record. The Board finds that the Veteran's infertility is not related to exposure to contaminated water at Camp Lejeune. In this regard, the Board finds that the March 2016 VA medical opinion is the most probative medical evidence of record. The March 2016 VA examiner reviewed the Veteran's claims file and provided an opinion that was supported by a detailed explanation. The Board notes that the examiner incorrectly indicated that the Veteran was not diagnosed with infertility, however, the examiner's rationale is still probative as it is based on scientific findings and discusses the probability that male infertility is due to exposure to contaminated water. Given the fact that the March 2016 VA examiner is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project, he is well qualified to know the current state of medical knowledge in this area. The Board therefore finds that the most probative evidence does not support the conclusion that the Veteran's infertility is etiologically related to his exposure to contaminated water at Camp Lejeune. In addition, the evidence of record does not indicate that the Veteran's infertility is otherwise related to his period of active service; the Veteran does not assert a relationship to service other than exposure to contaminated water at Camp Lejeune. The Board has considered the Veteran's own statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss observable symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the Veteran's lay statements are outweighed by the service treatment records and post-service treatment records. Further, the Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though the Veteran is competent to report his symptoms, he is not competent to provide an opinion as to nature and etiology of his infertility. In conclusion, while the Veteran has a current diagnosis, there are no symptoms, treatment or diagnosis of infertility during service, and the most probative evidence of record indicates his infertility is not due to exposure to contaminated water. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for infertility. Sleep Disorder First, the Board notes that the Veteran has a current diagnosis of insomnia. See March 2016 VA opinion. As such, element (1) set forth under Shedden, current disability, has been satisfied. See Shedden, supra. The Veteran's service treatment records are silent for any complaints, treatment, or diagnoses related to insomnia. However, as noted previously, it is conceded that the Veteran was exposed to contaminated drinking water at Camp Lejeune. As such, Shedden element (2), on this basis, has been satisfied. Id. Unfortunately, Shedden element (3), nexus, is not satisfied. In March 2016, a VA examiner opined that the Veteran's insomnia is not due to exposure to contaminated water. The examiner explained that while there is some literature that talks about insomnia as a symptom of acute, high level exposure to solvents, no literature was located which found low-level solvent exposure correlated with insomnia/sleep disturbance with an onset 23 years after the exposure ended. The studies indicated that any correlation found the symptom during the period of exposure and immediately afterwards, and most often the problem did not persist. In addition, no literature was located which reported low level, short term solvent exposure as a cause of any persistent neuro-psychological symptom, condition, or diagnosis. Continuing, the examiner noted that in addition, the NRC of the National Academies published a study in 2009, which looked at the potential health effects of exposure to contaminated groundwater at Camp Lejeune, but insomnia was not identified as one of the outcomes reported in any of the studies they reviewed. The examiner noted that the Veteran was at Camp Lejeune for 0.52 years, ending in June 1980. Therefore, the examiner opined that based upon the currently available literature, the estimated small magnitude of his potential solvent exposure, his extremely short time at Camp Lejeune, the length of time between when he was last stationed at Camp Lejeune and the onset of the problem, and his multiple medical reasons for insomnia/sleep disorder, the Veteran's insomnia/sleep disturbance is not due to or related to his exposure to contaminated water at Camp Lejeune. The Board finds that the Veteran's insomnia is not related to exposure to contaminated water at Camp Lejeune. In this regard, the Board finds that the March 2016 VA medical opinion is the most probative medical evidence of record. The March 2016 VA examiner reviewed the Veteran's claims file and provided an opinion that was supported by a detailed explanation. Given the fact that the March 2016 VA examiner is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project, he is well qualified to know the current state of medical knowledge in this area. The Board therefore finds that the most probative evidence does not support the conclusion that the Veteran's insomnia is etiologically related to his exposure to contaminated water at Camp Lejeune. In addition, the evidence of record does not indicate that the Veteran's insomnia is otherwise related to his period of active service as there are no documented reports of insomnia during service, and the Veteran himself has not asserted that he began experiencing symptoms of insomnia during service. The Board has considered the Veteran's own statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss an inability to sleep. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the Veteran's lay statements are outweighed by the service treatment records and post-service treatment records. Further, the Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though the Veteran is competent to report his symptoms of sleeplessness, he is not competent to provide an opinion as to nature and etiology of his diagnosed insomnia. Although the Veteran has a current diagnosis, there are no symptoms, treatment or diagnosis of insomnia during service, and the most probative evidence of record indicates his insomnia is not causally or etiologically due to exposure to contaminated water during service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for insomnia. Vertigo First, the Board notes that the Veteran has a current diagnosis of vertigo. See May 2013 VA examination. As such, element (1) set forth under Shedden, current disability, for this appeal has been satisfied. See Shedden, supra. The Veteran's service treatment records indicate the Veteran complained of dizziness during service, however, this was later attributed to a cold. See February 1980 service treatment records. Additionally, as stated previously, it is conceded that the Veteran was exposed to contaminated drinking water at Camp Lejeune. As such, resolving all reasonable doubt in his favor, Shedden element (2) has been satisfied. Id. Unfortunately, Shedden element (3), nexus, is not satisfied. In May 2013, a VA examiner opined that the Veteran's vertigo was less likely than not related to his time in service, to include the transient episode of dizziness for which he was seen during service. The examiner explained that the Veteran was seen during service for dizziness, which was attributed to a cold and was a transient condition that would have resolved. The examiner also noted that the Veteran was seen in June 1980 and in the history portion of the note, it is stated that there was no vertigo. The examiner indicated that service treatment records are negative for documentation of chronic dizziness. Continuing, the examiner noted that the post-service records several years later show that the Veteran again denied dizziness in June 2003 and July 2005. Similarly, in March 2016, a medical opinion was obtained regarding whether the Veteran's vertigo was due to exposure to contaminated water at Camp Lejeune. The examiner stated that there is robust medical and scientific literature that looked for a link between solvent exposure and an increased risk of several different neuro-psychological symptoms and problems, including dizziness. The examiner noted that while there is some literature which talks about dizziness as a symptom of acute, high level exposure to solvents, no literature was located which found solvents exposure correlated with dizziness/vertigo with an onset years after the exposure ended. The examiner explained that the studies that found any correlation, found the symptom during the period of exposure and immediately afterwards. No literature was located that reported low level, short-term solvent exposure as a cause of any persistent neuro-psychological symptom, condition, or diagnosis. The examiner stated that in addition, the NRC of the National Academies published a study in 2009, which looked at the potential health effects of exposure to contaminated groundwater at Camp Lejeune. They reported on neurobehavioral outcomes, but vertigo was not identified as one of the outcomes reported in any of the studies they reviewed. The examiner noted that the Veteran was at Camp Lejeune for 0.52 years, ending in June 1980; therefore, based upon the currently available literature, the estimated small magnitude of the Veteran's potential solvent exposure at Camp Lejeune, his extremely short time at Camp Lejeune, and the length of time since he was last stationed there, the examiner opined that the Veteran's vertigo is not due to or related to his exposure at Camp Lejeune. There are no medical opinions to the contrary, of record. In evaluating whether entitlement to service connection has been established, the Board notes that the Veteran's vertigo is considered a chronic disease under 38 C.F.R. § 3.309, as an organic disease of the nervous system. However, the record reflects that his vertigo did not manifest during service or for many years thereafter. Although the Veteran had reported an episode of dizziness during service, it was attributed to a cold several days later. Furthermore, the Veteran himself denied dizziness during service in a September 1979 note and no dizziness or vertigo was noted on his separation examination. Symptoms of dizziness were not documented again until approximately 2007. The Board finds the May 2013 VA examiner opining that the Veteran's vertigo was not due to service to be persuasive. There is no evidence that the Veteran suffered from chronic dizziness during service. Also, as the Veteran's vertigo did not manifest to a degree of 10 percent or more within one year of separation, the chronic disease presumption does not apply. The Board also notes that since the Veteran's vertigo is a condition recognized as chronic under 38 C.F.R. § 3.309 (a), service connection based on a continuity of symptomatology can potentially be warranted under 38 C.F.R. § 3.303 (b) (2016). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has asserted that he denied dizziness on many occasions because his dizziness is episodic and intermittent in nature. However, this allegation is inconsistent with clinical data (i.e., the service separation examination and medical history reports), and is not credible. The lengthy interval before the initial post-service documentation of symptoms of vertigo, of itself, is probative evidence against his claim. Additionally, on several occasions the Veteran reported his past history of other disorders, such as hearing loss, but at the same time failed to report any history of dizziness and in fact, denied dizziness and imbalance. See e.g. June 2003 treatment note. The objective evidence of record does not show that the Veteran has continuously had vertigo since discharge from service, as symptoms of dizziness were not documented until approximately 2007, many years after his period of service. Therefore, the Board finds that service connection for a vertigo disability based on a theory of continuity of symptomatology is not warranted. The Board also finds that the Veteran's vertigo is not related to exposure to contaminated water at Camp Lejeune. In this regard, the Board finds that the March 2016 VA medical opinion is the most probative medical evidence of record. The March 2016 VA examiner reviewed the Veteran's claims file and provided an opinion that was supported by a detailed explanation. Given the fact that the March 2016 VA examiner is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project, he is well qualified to know the current state of medical knowledge in this area. The Board therefore finds that the most probative evidence does not support the conclusion that the Veteran's vertigo is etiologically related to his exposure to contaminated water at Camp Lejeune. The Board has considered the Veteran's own statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss dizziness. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the Veteran's lay statements are outweighed by the service treatment records and post-service treatment records. Further, the Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though the Veteran is competent to report his symptoms of dizziness, he is not competent to provide an opinion as to nature and etiology. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for vertigo. ORDER New and material evidence not having been received, the Veteran's application to reopen the claim for entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for infertility is denied. Entitlement to service connection for a sleep disorder, diagnosed as insomnia, is denied. Entitlement to service connection for vertigo is denied. REMAND The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, migraines, and to a TDIU. Unfortunately, a remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. In the April 2014 Board Remand, the RO was instructed to afford the Veteran a VA examination for his acquired psychiatric disorder to clarify the Veteran's diagnosis and to obtain a medical opinion. Although a medical opinion regarding whether the Veteran's acquired psychiatric disorder was due to exposure to contaminated water at Camp Lejeune was obtained in April 2016, the Veteran was not afforded a VA examination to clarify his diagnosis and an opinion has not been obtained regarding whether the Veteran's current psychiatric disorder had an onset during service or is otherwise due to service (other than exposure to contaminated water). Importantly, in an August 2017 statement, the Veteran, through his representative, noted that he was seeking service connection on a direct basis and indicated that he had an episode during service where he was seen and treated for shaking with a bad temper. See August 2017 statement. The Board finds that a remand is necessary to afford the Veteran the VA examination, as directed in the April 2014 Board Remand, to clarify the Veteran's diagnosis and to obtain a medical opinion regarding whether the Veteran's current psychiatric disorder had an onset during service, or is causally or etiologically due to service, other than as due to exposure to contaminated water at Camp Lejeune. Regarding the Veteran's claim for migraines, service treatment records indicate the Veteran was seen in February 1980 with complaints of an episode of shaking and a bad temper. He was assessed with headaches, secondary to stress. Post service, the Veteran has been diagnosed with migraines. See May 2013 VA examination. In a May 2003 VA treatment note, the Veteran reported that he could tell when a migraine was approaching by "a change in temperature and a change in my mood. I feel angry." The physician stated, "the lack of objective evidence of significant physical disease, along with his psychiatric history, suggests that there may be a degree of functional overlay to some of his complaints." A November 2006 VA treatment note also indicated that stress aggravated his headaches. The Board finds that a medical opinion should be obtained regarding whether the Veteran's migraines are proximately due to or aggravated by his acquired psychiatric disorder. Finally, the Board finds that the issue of entitlement to a TDIU is inexplicably intertwined with the pending issue of entitlement to service connection for an acquired psychiatric disorder on appeal. Therefore, the Board finds that a decision on this issue should be postponed until the service connection issue is decided. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of his acquired psychiatric disorder. The claims file must be made available to the examiner. All current acquired psychiatric disorders should be noted and diagnosed. For each psychiatric disorder diagnosed, following a review of the relevant medical evidence in the claims file, the medical history and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's acquired psychiatric disorder is causally or etiologically related to service, to include the documented report during service where the Veteran was treated for an episode of shaking with a bad temper in February 1980. The examiner must include a complete rationale for all opinions provided in the report. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Obtain an addendum opinion for the Veteran's claimed migraines. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file and the medical history, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's migraines are proximately due to OR aggravated (beyond a natural progression) by his psychiatric disorder. The examiner must offer comments and opinion on the February 1980 service treatment record diagnosing headaches as secondary to stress, and post-service records from a May 2003 VA treatment note indicating a possible relationship between his psychiatric disorder and his migraines and a November 2006 VA treatment note indicating that stress aggravated his headaches. The examiner must include a complete rationale for all opinions provided in the report. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Then, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for appellate review. The Veteran 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). (CONTINUED ON NEXT PAGE) 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 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs