Citation Nr: 1804932 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-45 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to service connection for a skin condition, claimed as blisters. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from June 1957 to December 1957. He also served in the Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 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) (2012). The issue of service connection for a seizure disorder is denied herein. The issue of service connection for a skin condition is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part as to that claim. FINDINGS OF FACT The Veteran is diagnosed with epilepsy, and he served at Camp Lejeune for at least 30 days, but his diagnosis is not a presumptive disease, and there is no other indication that it is due to the contaminants at Camp Lejeune. CONCLUSION OF LAW The criteria to establish service connection for a seizure disability, which is diagnosed as epilepsy, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist A. Duty to Notify VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran submitted his claim on a VA form 21-526EZ in April 2014. That VA form contained standard language that satisfied the duty to notify provisions. See 38 U.S.C. § 5103. A case-specific notice is not required and any other notice defect is deemed not prejudicial. See VAOPGCPREC 6-2014 (VA is authorized to provide notice under § 5103(a) before a claim is filed, including on the standard application forms); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty is satisfied. B. Duty to Assist VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(d). VA has met the duty to assist the Veteran in the development of the claim being decided herein. His service treatment and personnel records have been obtained and appear to be complete. The Veteran has not sufficiently identified any VA medical records he desires to be obtained. The private records the Veteran has authorized VA to obtain have also been obtained. He did not identify and authorize VA to obtain any other relevant information. A VA examination has not been conducted. A VA examination is not needed, however, as the evidence is not sufficient to indicate a relationship between the Veteran's diagnosis and his service. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran is not entitled to a VA examination based solely on his own conclusory statements indicating that there is a relationship between his in-service exposures at Camp LeJeune and his present disability. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. II. Analysis The Veteran contends that a seizure disorder is due to contaminated water at Camp Lejeune. A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307(a)(7)(iii). Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in §3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(7)(iv). For the purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7)(i). If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of §3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of §3.307(d). (1) Kidney cancer. (2) Liver cancer. (3) Non-Hodgkin's lymphoma. (4) Adult leukemia. (5) Multiple myeloma. (6) Parkinson's disease. (7) Aplastic anemia and other myelodysplastic syndromes. (8) Bladder cancer. 38 C.F.R. § 3.309(f). The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii) B. Discussion Here, the claim is denied because the Veteran's seizure disorder is not a presumptive disease and there is no indication that it is otherwise due to the contaminants at Camp Lejeune. Initially, there is no dispute that he is currently diagnosed with a seizure disorder. A private (non-VA) Neurology consultation from September 2013 confirms a prior diagnosis of epilepsy in 2013. Thus, a current diagnosis is established. The Veteran also had at least 30 days of service at Camp Lejeune. He had training there from October 1957 to November 1957 for a period of approximately 44 days. Thus, he is presumed to have been exposed during such service to the contaminants in the water supply at Camp Lejeune. See 38 C.F.R. § 3.307(a)(7)(iii). This notwithstanding, the Veteran's epilepsy is not on the list of diseases associated with his exposure. See 38 C.F.R. § 3.309(f). And, there is otherwise no indication that his epilepsy is due to such exposure. The Veteran contends that his diagnosis is due to the exposure at Camp Lejeune, but this question is not one that is capable of lay observation, within the common knowledge of a lay person, or otherwise within the competence of a non-medical expert. To the contrary, it is the subject of numerous and advanced-level scientific/medical studies. See 82 Fed. Reg. 4173 (Jan. 13, 2017) (discussing an Agency for Toxic Substances and Disease Registry (ATSDR) review and stating that "VA reviewed evidence from several internationally recognized scientific authorities, including groups other than the NRC."). Thus, the Veteran's statements cannot constitute competent evidence tending to increase the likelihood of a nexus to service. See Fountain, 27 Vet. App. at 274-75; Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); see also Waters, 601 F.3d at 1278. In conclusion, the weight of the most credible and competent evidence establishes that the Veteran's seizure disorder is related to service, including exposure to contaminants at Camp LeJeune. Thus, the preponderance of the evidence is against the claim and particularly the nexus element. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a seizure disorder is not warranted. ORDER Service connection for a seizure disorder, diagnosed as epilepsy, is denied. REMAND The Board has conducted a preliminary review of the claim of service connection for a skin condition, but finds that further evidentiary development is warranted before a final decision may be reached. Specifically, the Board finds that a VA examination is needed. The Veteran was diagnosed with pemphigoid disorder in June 2011, which manifested with lesions on his head and face. The Veteran's service treatment records (STRs) show treatment during service in November 1960 for skin complaints involving a violaceous rash on the right knee. He underwent a dermatology consultation for these complaints. (The diagnosis is difficult to discern from the handwritten consultation notes.) Based on this record, the Board finds that an examination is needed to determine the likelihood that the current pemphigoid disorder is related to the treatment for skin symptoms during service. Accordingly, the case is REMANDED for the following action: 1. After completing any preliminary development needed, arrange for the Veteran to undergo a VA examination to address the claimed skin disorder. To the extent feasible and practical, the examination should be scheduled during an active stage of the disease. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all skin disorders found extant. If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? This should include consideration of whether the current diagnosis is related to the treatment during service in November 1960 for skin complaints involving a violaceous rash on the right knee. In answering these questions, please articulate the reasons underpinning each conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 2. After completing all actions set forth in paragraph 1, plus any further action needed as a consequence of the development completed in paragraph 1 above, readjudicate the remanded claim with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (West 2014). _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs