Citation Nr: 1804950 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-58 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service-connection for progressive supra nuclear palsy REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Jobe, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Marines Corps from August 1973 to February 1974, after which he entered the United States Marine Corps Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran appeared and testified, before the undersigned, via videoconference in October 2017. 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). FINDINGS OF FACT The Veteran's progressive supranuclear palsy was not incurred in, or otherwise related to his time in service. CONCLUSION OF LAW The criteria for service connection for progressive supranuclear have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 CFR §§ 3.102, 3.303, 3.304, 3.307, 3.309, and 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has completed the necessary steps in order to meet its duties to notify and assist in this case. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service-Connection The Veteran has claimed entitlement to service connection for progressive supranuclear palsy (PSP). He contends that he incurred disability as a result of the contaminated water at Camp Lejeune Marine Corps Base in North Carolina, where he served over 30 days of training before being transferred to another Reserve component. Service-connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. Service-connection may also be warranted where a service-connected disability caused or worsened the injury. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service-connection may also be granted for specific diseases associated with exposure to contaminants in the water supply at Camp Lejeune listed in 38 C.F.R. § 3.309. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307. In such instances, service-connection may be established despite no evidence of such disease during the period of service. This presumption of service-connection will only attach if the listed diseases manifest to a degree of 10 percent or more any time after service. The diseases listed are: kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. Since the Veteran's disability is not one of the diseases mentioned, the presumption for service-connection cannot attach. Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These fourteen diseases are: 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. While the Veteran asserts that his PSP should be presumptively service-connected due to his exposure to water contaminants, the Board will also consider the Veteran's claim on a direct basis to afford him all possible avenues of entitlement. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). That is to say, the Camp Lejeune water contamination presumption does not preclude a veteran from establishing direct service-connection with proof of actual direct causation. To establish a right to compensation for a direct service-connection, 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, or nexus, 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). The Veteran contends that he is entitled to service connection for PSP. After a thorough review of the evidence, the Board finds that the Veteran's disability was not incurred or related to, exposure to water contaminants at Camp Lejeune Marine Corps Base. The Veteran began treatment for nervous system related issues in October 2012 with the Neurology Department of Sunrise Medical Group. There was paresthesia noted in the right arm, and significant recent history of double vision. The Veteran underwent brain magnetic resonance imaging (MRI) in October and November 2012, and PSP was suspected. In January 2013, the Veteran's physician confirmed a diagnosis of PSP. Therefore, the Veteran suffers from a present disability and element one is satisfied. The VA has conceded that Veterans, or Reservists, who had no less than 30 days of service at Camp Lejeune during the period beginning 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. 38 C.F.R. § 3.307(a)(7)(iii). The Veteran's military personnel records confirm the Veteran served at Camp Lejeune during the time contaminants were exposed at that site, and was present for training no less than 30 days. Therefore, the second element of in-service event is also met. However, none of the records support a nexus relationship between the Veteran's PSP and his military service decades earlier. Furthermore, current medical literature rebuts the probability that the water contaminated is the cause of the Veteran's PSP. The Board is very sympathetic to the deteriorating and unfortunate nature of the Veteran's condition. However, current medical literature does not support a causal relationship between the Veteran's disease and the contaminants at Camp Lejeune. In May and June 2015, private physicians with the initials J.L. and R.G., respectively, opined that it is more likely than not that the exposure to the water contaminants caused the Veteran's PSP. Dr. J.L. noted that the Veteran's condition affected the muscles in his eyes, along with affects to his mood, and a complete disassociation of emotions. She noted that a complete workup excluded other possible causes for the disease. Her conclusion that the PSP is most likely caused by the water contaminants at Camp Lejeune was based on two concepts: first, that chemical toxins can affect the brain cognition and muscles, and Veteran's report to chemical exposures while in the military, supports this as a likely cause. Second, Dr. J.L. reasoned that since a component of PSP is neuromuscular there is certainly a high possibility that this [water contaminants] triggered the event. Dr. R.G. stated there was no real explanation to this neurobehavioral and neuromuscular problem, and there was clear mood affect disassociation. Therefore, he believed the water contamination exposure is more than likely the cause behind the PSP. Dr. Gopalaswamy reviewed the Veteran's history and clinical symptomology when rendering the opinion. In October 2016, the Veteran was afforded a VA examination with a member of the Camp Lejeune Contaminated Water (CLCW) Project's Subject Matter Expert Panel. This individual reviewed the Veteran's entire file including the opinions cited above. The examiner also reviewed current medical literature on diseases associated with the contaminated water, and literature on PSP. The examiner, citing the National Institute of Neurological Disorders and Stroke, described three theories as to the cause of PSP. These include viral infection, random genetic mutation, and exposure to some unknown chemical in the food, air or water. In analyzing the toxicological cause of PSP, i.e., chemical in food, air or water, the examiner noted that there exists a common progressive neurological disease which occurs on the Island of Guam and some surrounding islands. This disease shares some characteristics with PSP and several other progressive neurological conditions. The cause of this disease is thought to be a dietary factor or toxic substance found only in that area. The examiner further explained that the theory linking PSP to an unknown chemical in the environment is, in part, based on the fact that certain tropical fruits have been linked to progressive supranuclear palsy-like symptoms in people on some Caribbean islands. It is, of course, important to remember that none of these theories of causation have been shown to be true. Further, none of these theories implicate Trichloroethylene, Tetrachloroethylene, Benzene or Vinyl Chloride [the chemicals found in CLCW] as even a suspected causative agent in PSP. In addition, the Agency for Toxic Substances and Disease Prevention (ATSDR) Toxicological Profiles for Trichloroethylene, Tetrachloroethylene, Benzene and Vinyl Chloride all fail to describe any studies that demonstrate an elevated risk of PSP. The Institute of Medicine conducted an extensive review of the literature, which looked at solvent exposure and an increased risk of various health effects. An electronic search of the report fails to identify a single mention of amyloidosis. 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. An electronic search of this report also fails to identify a single mention of amyloidosis. The examiner comments that the opinions from the Veteran's doctors (supra) while commendable, are not based on actual evidence. They point to no support in literature, research, or clinical studies supporting a link between the water contaminants and the Veteran's PSP. He opines with reasonable degree of medical certainty that the Veteran's PSP is not caused by exposure to CLCW. All of the above physicians are competent and credible to provide opinions. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Dr. J.L. and the VA examiner, personally evaluated the Veteran and discussed his medical history. However, Dr. R.G. did not review the entire record, and both he and J.L's opinions are speculative. They both found the exposure to CLCW to be the likely cause because they could not deduce another possible cause. However, the VA examiner cites to current and multiple sources of literature and research. While the opinion does not explain the cause to the Veteran's PSP, the VA examiner does however, give a thorough and clear explanation as to why CLCW is less likely than not the cause of the PSP. As the opinion is well-supported, the Board is giving it more weight, and finds that the preponderance of the evidence of record demonstrates that the Veteran's PSP did not manifest during, or as a result of, the Veteran's service at Camp Lejeune. Likewise, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran's PSP did not otherwise manifest during, or as a result of, active military service. There is no competent evidence suggesting any link between this disability and the Veteran's military service, and there is no evidence of this condition manifesting during, or within one year of separation from, the Veteran's active military service. The Board recognizes that the Veteran believes his progressive supranuclear palsy is a result of his military service. During his October 2017 hearing, the Veteran testified to his service at Camp Lejeune. However, he also indicated that the condition was diagnosed approximately 3 years earlier. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. In the present case, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to provide a medical opinion as complex as linking a condition such as progressive supranuclear palsy to military service or exposure to contaminated water many years earlier. The VA examiner, however, does have the requisite training and expertise, and after examination, review of the record and review of relevant medical literature, was unable to provide an opinion linking the Veteran's disability to military service. As such, the Veteran's assertions are not competent evidence of causation. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for progressive supranuclear palsy must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER Entitlement to service-connection for progressive supranuclear palsy is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs