Citation Nr: 18147882 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-42 026 DATE: November 6, 2018 ORDER Service connection for obstructive sleep apnea (OSA) is denied. Service connection for prostate cancer due to contaminated water exposure at Camp Lejeune (CLCW) is denied. REMANDED A rating in excess of 10 percent disabling for bilateral knee strain (limitation of extension) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that OSA began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The Veteran’s prostate cancer is not eligible for presumptive service connection based on Camp Lejeune contaminated water (CLCW) exposure, and there is no medical evidence supported by medical rationale linking the currently diagnosed prostate cancer to military service or CLCW. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for prostate cancer, as due to CLCW exposure, have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 1131, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to March 1998 and February 2003 to June 2003. This matter comes before the Board of Veterans’ Appeals (Board) from October 2016 and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for OSA The Veteran contends that his OSA is the result of his active service. Specifically, in his November 2016 notice of disagreement, he wrote that he experienced sleep apnea symptoms, such as snoring and insomnia, but was never tested for this condition while on active duty as there were no tests available at that time. He also wrote that he was removed from the field due to having issues falling asleep while on duty. Service treatment records are silent for any treatment or diagnosis of OSA. Significantly, examination reported dated in December 1984, February 1988, September 1991, February 1994, and June 2003 show normal “lungs and chest” and, in reports of medical history dated in December 1984, February 1988, August 1991, September 1992, and August 1997, the Veteran specifically denied “frequent trouble sleeping.” Similarly, a December 2005 post-service Reserve examination also shows normal “lungs and chest” and, in a December 2005 report of medical history, the Veteran specifically denied “frequent trouble sleeping.” The first record of an OSA diagnosis is an April 2016 private medical treatment record from Carolina Cardiology Sleep and Obesity. Various VA treatment records indicative an assessment of OSA and associated symptoms, but no discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection on is not warranted for OSA. Indeed, the evidence fails to demonstrate that the Veteran’s OSA is the result of his active service; none of the competent medical evidence indicates such an association and the Veteran is not competent in this regard, as determining etiology requires appropriate medical background. Further, the Board finds that the low bar of McClendon has not been met here. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). While the record reflects a current disability, there is no evidence of OSA in service, and no indication that the Veteran’s OSA is related to his active service. The only evidence of a possible connection between the Veteran’s OSA and his service are the Veteran’s own broad and conclusory statement that his OSA is the result of his active service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed.Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). Further, while the Board notes the Veteran’s contention that his STR’s contained complaints of snoring and/or insomnia, a complete review of the STR’s of record are silent for any evidence of these complaints. Finally, there has been no contention of a continuity of symptoms; STRs are silent for any treatment or diagnosis of OSA, records show that OSA was not diagnosed until 2016, twenty years after service. Based on the foregoing, direct service connection is not warranted. 2. Service connection for prostate cancer due to contaminated water exposure at Camp Lejeune Presumptive service connection may be established for diseases associated with exposure to contaminants in the water supply at Camp Lejeune. 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. 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 this period 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. 38 C.F.R. § 3.307 (a)(7) (effective March 14, 2017). Unless rebutted by affirmative evidence, the following diseases shall be service-connected even though there is no record of such disease during service: (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, and (8) Bladder cancer. 38 U.S.C. § 1112; 38 C.F.R. § 3.309 (f) (effective March 14, 2017). The Veteran has solely contended that his prostate cancer is due to his exposure to CLCW. His service personnel records establish that he is eligible for CLCW presumptive service connection as he was stationed at Camp Lejeune from April 1985 to July 1985, however, his diagnosed condition is not a recognized disease associated with CLCW. In issuing the 38 C.F.R. § 3.309 (f) in 2017, the VA specifically concluded that there is insufficient medical and scientific evidence to establish a presumption of service connection for any disability beyond the eight diseases listed in the regulation. 82 Fed. Reg. 4180. Although unenumerated diseases do not warrant presumptive service connection, service connection can also be granted on a direct basis for a disease not listed in 38 C.F.R. § 3.309 (f), if there is evidence of a current disease or disability, evidence of exposure to contaminated water at Camp Lejeune, and a medical nexus between the two, supported by a sufficient scientific explanation. 82 Fed. Reg. 4178. Service treatment records are silent for any treatment or diagnosis of prostate cancer. Significantly, examination reported dated in December 1984, February 1988, September 1991, February 1994, and June 2003 show normal “anus and rectum” and, in reports of medical history dated in December 1984, February 1988, August 1991, September 1992, and August 1997, the Veteran specifically denied “rectal disease.” Similarly, a December 2005 post-service Reserve examination also shows normal “anus and rectum” and, in a December 2005 report of medical history, the Veteran specifically denied “rectal disease.” The first indication in the record of prostate cancer is a January 2017 VA Procedure Note initially diagnosing the Veteran with adenocarcinoma of the prostate. Subsequent VA treatment records indicate continued treatment but are negative for a discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection on a direct basis is not warranted for prostate cancer. Indeed, while exposure to CLCW has been conceded and the Veteran has a current diagnosis, the evidence fails to demonstrate that the CLCW exposure at least as likely as not caused his prostate cancer; none of the competent medical evidence indicates such an association and the Veteran is not competent in this regard, as determining etiology requires appropriate medical background. Further, the Board finds that the low bar of McClendon has not been met here. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). While the record reflects a current disability, there is no evidence of prostate cancer in service, and no indication that the Veteran’s prostate cancer is related to his active service. The only evidence of a possible connection between the Veteran’s prostate cancer and his service are the Veteran’s own broad and conclusory statement that his prostate cancer is the result of his exposure to contaminated water at Camp Lejeune, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed.Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). Finally, there has been no contention of a continuity of symptoms; STRs are silent for any treatment or diagnosis of prostate cancer, records show that prostate cancer was not diagnosed until January 2017, nearly twenty years after service. Based on the foregoing, direct service connection is not warranted. REASONS FOR REMAND A rating in excess of 10 percent disabling for bilateral knee strain (limitation of extension) is remanded. With regard to the Veteran’s bilateral knee claims, the Board notes that the Veteran was scheduled for a VA knee examination in June 2017 but that the examination was cancelled. In an August 2017 rating decision denying the Veteran an increased rating, the RO noted that “there is no information presently indicating good cause for absence on the scheduled appointment date. As a result, medical evidence that could have been used to support your claim was not available to us.” However, in August 2017 correspondence, VA was notified that the Veteran was currently hospitalized at Duke Hospital and unable to both speak and attend any scheduled examinations in the near future. The Board finds that the Veteran provided good cause for his absence and should be rescheduled for a knee examination as originally intended. Also, given the need to remand for other reasons all outstanding VA treatment records dated since May 2017 should be obtained on remand. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from May 2017 to the present. 2. Arrange for the Veteran to undergo VA examination for evaluation of his bilateral knee disability. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 3. Readjudicate the appeal. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel