Citation Nr: 18148862 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-39 054 DATE: November 8, 2018 ORDER Entitlement to service connection for chronic liver disease secondary to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for vitiligo, to include as secondary to contaminated water at Camp Lejeune, is denied. REMANDED Entitlement to service connection for diabetes mellitus type II, to include as secondary to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a nerve condition, to include as secondary to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a chronic liver disease due to exposure to contaminated water at Camp Lejeune. 2. The preponderance of the evidence is against finding that the Veteran has vitiligo due to a disease or injury in service, to include exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic liver disease secondary to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for vitiligo, to include as secondary to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1979 to April 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky (Agency of Original Jurisdiction (AOJ)). The Veteran initially requested a videoconference hearing on his claim; however, he subsequently withdrew his hearing request in an August 2016 correspondence. As such, the Board will proceed and adjudicate his claim without a hearing. Additional evidence has been obtained by the RO since it last considered the case in a July 2016 Statement of the Case (SOC). This evidence is cumulative of evidence already in the claims file. Thus, neither a waiver nor initial consideration of this evidence by the RO is necessary. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §1110; 38 C.F.R. §3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). 81 Fed. Reg. 62419 (Sept. 9, 2016). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See National Academy of Sciences’ National Research Council (NRC)’s report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects”). Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. In September 2016, based on the conclusions of scientific authorities, VA published a proposed regulation to establish a presumption of service connection for certain diseases associated with exposure to contaminated water at Camp Lejeune. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 81 Fed. Reg. 62419 (Sept. 9, 2016). In January 2017, VA published the final rule amending 38 C.F.R. §§ 3.307 and 3.309 relating to presumptive service and adding eight 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. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (Jan. 13, 2017). This final rule establishes presumptive service connection for veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia, aplastic anemia/myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin lymphoma, and Parkinson’s disease. 82 Fed. Reg. at 4184-85. The final rule became effective March 14, 2017, and the amended provisions of 38 C.F.R. §§ 3.307 and 3.309 are applicable to claims received by VA on or after March 14, 2017, and claims pending before VA on that date. 1. Entitlement to service connection for chronic liver disease secondary to contaminated water at Camp Lejeune The Veteran contends that he has chronic liver disease as a result of service. Specifically, he states that his exposure to contaminated water during his time at Camp Lejeune caused the disabilities he has today, including liver disease. He maintains that no one else in his family has this condition. The Veteran does not contend direct service connection for his liver condition, and the Board will limit its analysis to presumptive service connection only. The record reflects that the Veteran has a current diagnosis of fatty liver disease. The Veteran underwent an ultrasound in June 2011; the medical note indicated “borderline hepatomegaly with increased echogenicity of hepatic parenchyma consistent with cirrhosis, fatty infiltration, or chronic hepatitis.” Under the section “impression/plan,” the physician wrote “non-alcoholic fatty liver disease.” A February 2014 follow-up entry for fatty liver disease reiterated that the Veteran has “laboratory and radiographic evidence of fatty liver disease.” The Board will therefore concede that the Veteran has a current diagnosis of fatty liver disease that meets the first prong for service connection. The Board also concedes that the Veteran has a qualifying in-service event. The Veteran’s DD-214 reflects that he was stationed at Camp Lejeune for a period of time during his service from September 1979 to April 1982. As noted above, it is assumed by VA that any Veteran who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. As the Veteran served at Camp Lejeune during this qualifying time period, the Board concedes the presence of an in-service event. Fatty liver disease is not listed as one of the conditions under 38 C.F.R. § 3.309(f) associated with exposure to contaminants in the water supply at Camp Lejeune that entitles a Veteran to presumptive service connection, though the Board notes that liver cancer is included on the list of diseases provided. There is no evidence of record to suggest, however, that the Veteran has liver cancer. In June 2016, VA sought a medical opinion as to the etiology of the Veteran’s fatty liver disease. The examiner opined that the Veteran’s fatty liver disease is not related to or caused by his exposure to water contamination at Camp Lejeune. He provided a thorough rationale, noting that fatty liver disease is “clearly recognized as a primary, direct consequence of obesity and alcohol consumption,” and remarked that the Veteran’s body mass index was in the “obese” range for most of his visits to VA since 2011. He also cited to a variety of studies to support his contention that the Veteran’s exposure to contaminated water did not result in his fatty liver disease, and concluded by stating “given all of the above facts, it is my opinion, to a reasonable degree of medical certainty, that [the Veteran’s] hepatic steatosis is not due to exposure to [contaminated water at Camp Lejeune]. His obesity, diabetes, hyperlipidemia, and hypertension are much more likely causes.” Based on the evidence of record, the Board must deny the Veteran’s claim. Service treatment records (STRs) are silent for any complaints or treatment of a liver condition. Furthermore, he was not diagnosed with fatty liver disease until approximately 2011, nearly thirty years post-service. Notably, the June 2016 VA examiner opined that there was no nexus between this condition and the Veteran’s presumed exposure to contaminated water. The Board considers the opinion to be competent and highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary evidence of record. As such, the claim for entitlement to service connection for fatty liver disease secondary to exposure to contaminated water at Camp Lejeune is denied. The Board has considered the Veteran’s lay statements. Although laypersons are competent to provide opinions on some medical issues, the etiology of the Veteran’s disability is a complex medical question that is not within the competency of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The only medical opinion addressing whether the Veteran’s disability is related to service - that of the June 2016 VA examiner - is against the claim. The Board considers the medical opinion of the VA examiner to be more probative than the lay opinion of the Veteran. 2. Entitlement to service connection for vitiligo, to include as secondary to contaminated water at Camp Lejeune The Veteran contends that he has vitiligo as a result of service. Specifically, he states that his exposure to contaminated water during his time at Camp Lejeune caused the disabilities he has today, including vitiligo. He maintains that no one in his family has this condition. In the alternative, he contends that his vitiligo is secondary to his liver condition. The record reflects that the Veteran has a current diagnosis of vitiligo. According to one VA treatment note, the Veteran’s condition started in 2008. A private treatment record from August 2009 also makes note of vitiligo. In addition to the Veteran’s condition being referenced throughout the multitude of medical records associated with the claims file, a VA examination conducted in March 2013 also confirmed the Veteran’s diagnosis of vitiligo. As such, the Board will concede that the Veteran has a current diagnosis of vitiligo that meets the first prong for service connection. The Board also concedes that the Veteran has a qualifying in-service event. The Veteran’s DD-214 reflects that he was stationed at Camp Lejeune for a period of time during his service from September 1979 to April 1982. As noted above, it is assumed by VA that any Veteran who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. As the Veteran served at Camp Lejeune during this qualifying time period, the Board concedes the presence of an in-service event. Service connection for vitiligo is not warranted. Vitiligo is not listed as one of the diseases associated with exposure to contaminants in the water supply at Camp Lejeune that entitles a veteran to presumptive service connection. However, a veteran can establish service connection by way of proof of actual direct causation. See Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). In this regard, STRs are silent for any complaints or treatment of vitiligo. The Veteran did complain of a fungal skin rash while in service in June 1980. the March 2013 VA examiner opined that it was “not at least as likely as not” that the Veteran’s vitiligo occurred in or was caused by this fungal rash. She rationalized that “there is no causal relationship between vitiligo and fungal skin rashes.” The Board considers the opinion to be competent and highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary evidence of record. Notably, a June 2012 VA treatment record contains a notation that the Veteran’s vitiligo was “not likely” caused by contaminated water, and the Veteran was instructed to lose weight. There is no competent medical evidence in the claims file that provides a nexus between the Veteran’s vitiligo and his active military service, to include his presumed exposure to contaminated water. The Board has considered the Veteran’s lay statements. Although laypersons are competent to provide opinions on some medical issues, the etiology of the Veteran’s disability is a complex medical question that is not within the competency of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The only medical opinion addressing whether the Veteran’s disability is related to service - that of the March 2013 VA examiner - is against the claim. The Board considers the medical opinion of the VA examiner to be more probative than the lay opinion of the Veteran. Because entitlement to service connection has been denied for the Veteran’s liver condition, any claim of entitlement to service connection on a secondary basis is moot. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type II, to include as secondary to contaminated water at Camp Lejeune, is remanded. 2. Entitlement to service connection for a nerve condition, to include as secondary to contaminated water at Camp Lejeune, is remanded. As discussed above, the Veteran is presumed to have been exposed to contaminated water at Camp Lejeune. The claimed conditions are not entitled to presumptive service connection under 38 C.F.R. §3.309(f). However, a veteran can establish service connection by way of proof of actual direct causation. See Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The record reflects that the Veteran has a current diabetes diagnosis. He has not received a VA examination for either condition. The Board will therefore remand these issues to obtain an etiology opinion. The matters are REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his claimed diabetes mellitus type II and nerve condition. The claims file must be made available to and be reviewed by the examiner. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus type II is related to the Veteran’s military service, to include his exposure to contaminated water at Camp Lejeune? (b) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed nerve condition is related to the Veteran’s military service, to include his exposure to contaminated water at Camp Lejeune? (c) If, and only if, the Veteran’s diabetes mellitus is found to be service-connected and the answer to (b) is no, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed nerve condition is caused or aggravated by the service-connected diabetes mellitus? The examiner should consider private treatment records uploaded to the file in February 2012 documenting diabetes and the Veteran’s correspondence dated September 2012. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel