Citation Nr: 1801482 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-20 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for multiple system atrophy (MSA) to include as an undiagnosed illness based on Persian Gulf War service and/or due to exposure to Benzene at Camp Lejeune. 2. Entitlement to special monthly compensation (SMC) based on aid and attendance. ORDER Entitlement to service connection for multiple system atrophy (MSA) to include as an undiagnosed illness based on Persian Gulf War service and/or due to exposure to Benzene at Camp Lejeune is denied. Entitlement to SMC based on aid and attendance is denied. FINDINGS OF FACT 1. The competent credible medical evidence is against a finding that the Veteran's MSA is due to active service, to include as an undiagnosed illness based on Persian Gulf War service and/or due to exposure to Benzene at Camp Lejeune. 2. The Veteran's need for aid and attendance is not due to his service connected disabilities, but rather due to the non-service connected progression of his MSA. CONCLUSIONS OF LAW 1. The criteria for service connection for MSA to include as an undiagnosed illness based on Persian Gulf War service and/or due to exposure to Benzene at Camp Lejeune have not been met. 38 U.S.C. § 1101, 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.317 (2017). 2. The criteria for SMC based on aid and attendance or at the housebound rate are not met. 38 C.F.R. § 1114 (l); 38 C.F.R. § 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to November 1975, from December 1976 to February 1984 and from January 1990 to May 1996. These matters come before the Board of Veterans' Appeals (Board) from rating decisions dated in July 2012 and February 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The claims were subsequently transferred to the Louisville, Kentucky RO. The Board remanded these matters in November 2013 to provide the Veteran with a Board hearing. Unfortunately, the Veteran was unable to attend the hearing due to his deterioration of health. The Veteran's wife, who has power of attorney to represent the Veteran with respect to his claims on appeal, testified on his behalf during a hearing before the undersigned Veterans Law Judge in June 2014. A transcript of the hearing is of record. The claim was remanded again by the Board in July 2014. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to service connection for MSA to include as an undiagnosed illness based on Persian Gulf War service and/or due to exposure to Benzene at Camp Lejeune. The Veteran contends that he has MSA related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has MSA that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has MSA related to his military service. The Veteran's service treatment records (STRs) do not reflect complaints of, or treatment for, MSA or any other neurological disorder. A review of the claims folder reflects the Veteran's MSA first had its onset in 2004, approximately 8 years after separating from active service. The Veteran was subsequently diagnosed with MSA in 2008. The Veteran has asserted his MSA is due to an undiagnosed illness associated with his Persian Gulf service. Persian Gulf War Veterans with an undiagnosed illness or medically unexplained chronic multisymptom illnesses that manifested itself during service in the Southwest Asia area of operation or to a disability rate of 10% or more no later than December 31, 2021 will be presumed to have established service connection. 38 U.S.C. § 1117 (West 2014); 38 C.F.R. § 3.317 (a)(1). Unlike direct service connected claims, it is not a requirement that there be competent evidence of a nexus between the undiagnosed illness and service. Guitierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The Board finds that the presumption does not apply. The claims folder reflects that the Veteran's illness has been diagnosed as MSA. Therefore, the special provisions pertaining to an undiagnosed illness is not applicable to this issue. Additionally, the regulation is clear, chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2). In this case, a February 2017 VA medical report reflects that while the cause of MSA is still unknown, studies and testing reflect that the disease is neurological, causing damage to part of the nervous system that controls important functions such as heart rate, blood pressure, and sweating. The Veteran also contends that his MSA is related to exposure to Benzene while stationed at Camp Lejeune during his active service. The Veteran submitted a medical article indicating that there is no evidence of a genetic predisposition in MSA and therefore, the possibility of environmental causes seems more likely. The article also noted that "although a variant of toxins have been implicated in pathogenesis of MSA in our cases organic solvents appear to be particularly common." The Veteran was stationed at Camp Lejeune from June 1978 to January 1979. It is likely that the Veteran was exposed to industrial chemicals in the drinking water to include Benzene while he was stationed at Camp Lejeune, North Carolina from 1978 to 1979. See 78 Fed. Reg. 55671 (September 11, 2013). 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 11-03 (November 29, 2011). 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. 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. The Board notes that the Veteran's claim to service connection for MSA was processed and adjudicated by the Louisville, Kentucky, RO. An essential element of a claim for service connection is evidence of a current disability. The claims folder reveals that the Veteran was diagnosed with MSA in 2008. (See February 2017 VA medical examination.). Thus, the Veteran has a disability of MSA. A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran contends that while on active duty, he was stationed on Camp Lejeune. Further, the Veteran avers that while stationed on Camp Lejeune, he was exposed to contaminated water. The claims folder reflects and VA concedes that the Veteran was aboard Camp Lejeune from June 1978 to January 1979. As such, the Board finds that based on the claims folder, exposure to the contaminated water associated with Camp Lejeune is consistent with the circumstances of the Veteran's service. 38 U.S.C. § 1154 (a) (West 2014). As such, the Board finds that an element of a service connection claim, injury in service, has been met (i.e. exposure to contaminated water). Generally, a third element for service connection is competent credible evidence of a nexus between the current disability and the in-service disease or injury, or, in some cases, continuity of symptoms. The Board finds, based on the reasons below, that the competent, credible evidence of record is against such a finding. Thus, the third requirement has not been met. After reviewing the Veteran's medical records, claims folder, and consulting with various medical studies and literature, the February 2017 examiner, who is considered a subject matter expert in regard to the Camp Lejeune's contaminated water, concluded that the Veteran's diagnosis of MSA is not caused by, related to, or permanently aggravated by his exposure to contaminated water aboard Camp Lejeune. The examiner noted the Veteran's 2004 onset of neurological difficulties and subsequent 2008 diagnosis of MSA. The examiner explained that the medical conclusion was based on the currently available literature, the duration of the Veteran's time at Camp Lejeune, the fact that there is no documentation of neurological difficulties for several decades after his exposure to contaminated water aboard Camp Lejeune ended, and the fact that there is no body of published scientific literature that supports a causative role for organic solvents in the development of MSA. The Board notes that the Veteran may sincerely believe that his MSA is causally related to active service. However; the most probative clinical etiologic opinion with regard to the Veteran's MSA is against any such finding. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of MSA for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In reaching this decision, the Board is cognizant of 38 C.F.R. § 3.307 and 3.309, which have recently been amended to include eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. The list includes: adult Leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, Kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. Importantly, MSA is not included within the list of presumptive diseases. While MSA is considered a neurodegenerative disease with features similar to Parkinson's; VA purposely excluded MSA and other parkinsonian diseases from the list of diseases for presumptive service connection. VA explained that the studies establishing a relationship between contaminants in the water supply of Camp Lejeune and Parkinson's disease are specific to Parkinson's and not Parkinsonism or other parkinsonian syndromes. See 82 Fed. Reg. 4173, 4179 (January 13, 2017). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2014), and 38 C.F.R. § 3.102 (2017), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Entitlement to special monthly compensation (SMC) based on aid and attendance. Legal Criteria Under 38 U.S.C. § 1114 (l), SMC (as opposed to special monthly pension, which would be based on all disabilities rather than only those which are service connected) is payable if, as the result of service-connected disabilities, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot, has blindness in both eyes with visual acuity of 5/200 or less, is permanently bedridden, or is so helpless as to be in need of the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The need for aid and attendance equates to being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350 (b). As it pertains to the present case, criteria for establishing such need include whether the Veteran was permanently bedridden or so helpless as to have required regular aid and attendance, during the pendency of his original appeal, as determined under criteria enumerated under 38 C.F.R. § 3.352 (a). Pursuant to 38 C.F.R. § 3.352 (a), the following factors will be accorded consideration in determining whether the Veteran was in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran was so helpless as to need regular aid and attendance, not that there was a constant need. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352 (a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the Veteran had voluntarily taken to bed or that a physician had prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352 (a). The claims folder reflects that during the pendency of the claim, the Veteran was in need of aid and attendance. Specifically, the medical evidence reflects the Veteran is in need of assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. (See April 2012 VA medical letter, March 2012 statement of attending physician, and April 2011 VA medical examination report). Importantly, the objectively medical evidence reflects that the Veteran's need for an aid and attendance is a result of the non-service connected progression of his MSA. As explained above, the Veteran's MSA has not been causally related to his active military service. Under 38 U.S.C. § 1114 (l), SMC is payable if, as the result of service-connected disabilities is so helpless as to be in need of the regular aid and attendance of another person. In this instance, the Veteran's need was not due to his service-connected disabilities but rather due to the non-service connected progression of his MSA. As such, the Board finds that the criteria for aid and attendance are not warranted. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel Copy mailed to: [Texas Veterans Commission] Department of Veterans Affairs