Citation Nr: 18152684 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 18-48 616 DATE: November 23, 2018 ORDER Entitlement to service connection for chronic kidney disease, to include as due to in-service exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for headaches is denied. REMANDED 1. Entitlement to service connection for a cervical spine disorder is remanded. 2. Entitlement to service connection for a bilateral shoulder disorder is remanded. 3. Entitlement to service connection for a left elbow disorder is remanded. 4. Entitlement to service connection for a bilateral hand/finger disorder is remanded. 5. Entitlement to service connection for a bilateral knee disorder remanded. 6. Entitlement to service connection for a bilateral foot disorder is remanded. 7. Entitlement to service connection for a sleep disorder, to include insomnia, is remanded. FINDINGS OF FACT 1. Chronic kidney disease did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 2. The weight of the evidence is against a finding that the Veteran has a headache disorder for service connection purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic kidney disease are not met. 38 U.S.C. §§ 1112, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. 2. The criteria for service connection for a headache disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to July 1981 and from June 1983 to June 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in July 2016 and October 2017 by a Department of Veterans Affairs (VA) Regional Office. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (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. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, an organic disease of the nervous system, and calculi of the kidneys and nephritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. 3.303 (b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. 3.303 (b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for chronic kidney disease The Veteran contends entitlement to service connection for chronic kidney disease due to in-service exposure to contaminated water at Camp Lejeune. He does not present an alternative theory relating chronic kidney disease to any other in-service injury, event, or disease. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene, perchloroethylene, benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. pt. 3). This presumption may be rebutted by affirmative evidence to the contrary. Id. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: Kidney cancer, Liver cancer, Non-Hodgkin’s lymphoma, Adult leukemia, Multiple myeloma, Parkinson’s disease, Aplastic anemia and other myelodysplastic syndromes, and Bladder cancer. Id. Notwithstanding the foregoing presumption provisions for exposure to contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’d Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The record establishes that the Veteran was on active duty at Camp Lejeune from July 1983 to August 1986. As such, VA concedes the Veteran was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. The Veteran’s service treatment records are negative for complaints or treatments for kidney disease. After service, treatment records after 2013 document treatment for chronic kidney disease. Chronic kidney disease is not one of the enumerated diseases in 38 C.F.R. §§ 3.307 and 3.309 that would establish presumptive service connection. Therefore, the Veteran’s kidney disease is not presumed to be related to his exposure to contaminated water at Camp Lejeune during his service. The central issue in this case is whether the Veteran’s kidney disease, diagnosed many years after service, is etiologically related to that exposure. Additionally, the record reflects a diagnosis of chronic kidney disease approximately 20 years following his exposure to contaminated water at Camp Lejeune and separation from service. This is strong evidence against a finding of any continuity of symptomatology and against his claim for service connection. Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000). In a June 2016 VA medical opinion report, the VA examiner noted a review the Veteran’s claims file and confirmed a diagnosis of chronic kidney disease. The examiner also noted that the Veteran was stationed at Camp Lejeune for approximately three years. The VA examiner opined that the Veteran’s chronic kidney disease was less likely than not caused by or result of his exposure to water contaminants at Camp Lejeune. In support of the medical conclusion, the examiner referred to medical literature which showed that there was no statistically significant data that supported a finding that exposure to the water contaminants at Camp Lejeune solvents, at measured levels, as being causative of chronic kidney disease. Though there were some studies that suggested evidence of a relationship between occupational exposures to organic solvents and the development of nephropathies, these studies suggested an increase only related to high-level, long-term exposure. In addition, studies indicated the renal disease would start at the time of exposure and would likely improve with cessation of exposure. Here, although the evidence did not contain lab work to corroborate the date of onset of the Veteran’s kidney disease, the evidence failed to show that the condition was diagnosed in service. By contrast, the Veteran had multiple risk factors for chronic kidney disease, including diabetes mellitus, kidney infections, hypertension, hyperlipidemia, and gout. In providing the opinion, the examiner noted a review of eleven different medical articles and literature for support. In this case, the examiner was aware of the Veteran’s medical history, provided a fully articulated opinion, and furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board has considered the Veteran’s own opinion that contaminated water at Camp Lejeune caused his current kidney disease. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation but not with respect to determinations that are “medical in nature”. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran’s opinion is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Further, the record does not contain a competent medical opinion relating current kidney disease to service. Here, the most probative evidence establishes that the Veteran’s kidney disease is not related to service. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the Veteran’s claim, and it must be denied. 2. Entitlement to service connection for headaches Initially, the Board finds that the competent and probative evidence of record fails to establish the existence of a headache disability at any time during the pendency of the claim. The service treatment records do not demonstrate any evidence of a headache disorder during military service or at discharge therefrom. After service, VA treatment records after 2012, noted symptoms of headaches associated with sinus issues. The records do not reflect a diagnosis of a chronic headache disorder, nor does his current medical chart document a chronic primary or secondary headache disorder. Moreover, there is no evidence that the Veteran’s symptoms of headaches resulted in any functional impairment. In this case the weight of the evidence is against a finding that the Veteran was diagnosed with a specific diagnosis for headache disorder. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board has considered the Veteran’s assertions that he suffered from headaches and that he is competent to report such symptomatology. However, the Veteran is not competent to diagnose acute occurrences of headache pain as a headache disability. See Jandreau, 492 F.3d 1372. While the VA clinicians acknowledged the Veteran’s complaints of headaches, no chronic disability is reflected in the treatment records. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of a current, chronic headache disability, the Board must conclude the Veteran did not suffer from such disability. Without competent evidence of a diagnosis, the Board must deny the Veteran’s claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Notwithstanding this, the evidence of record does not support a finding that the Veteran has a headache disorder that was incurred in service. Therefore, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for a headache disorder. The benefit-of-the-doubt rule does not apply and the claim must be denied. See 38 U.S.C. § 5107 (b); See Gilbert, 1 Vet. App. at 54. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder 2. Entitlement to service connection for a bilateral shoulder disorder 3. Entitlement to service connection for a left elbow disorder 4. Entitlement to service connection for a bilateral hand/finger disorder 5. Entitlement to service connection for a bilateral knee disorder 6. Entitlement to service connection for a bilateral foot disorder 7. Entitlement to service connection for a sleep disorder, to include insomnia The Veteran asserts that he has current disorders related to the cervical spine, shoulders, left elbow, hand/finger(s), knees, feet, and sleep problems. Service treatment records are negative for any complaint of, treatment for, or diagnosis referable to such disorders. However, the Board finds the Veteran’s lay statements concerning the discouraged practice of going to sick call indicate the possibility of in-service events, injuries, and/or illnesses related to such. Additionally, post-service treatment records demonstrate diagnoses of disorders during the pendency of the appeal. Further, the Veteran’s lay statements are competent to describe symptoms that he has experienced since separation from service. As such, VA examination is necessary to determine the nature and etiology of any diagnosed disorder referable to the cervical spine, shoulders, left elbow, bilateral hand/finger(s), knees, feet, and sleep problems. The matters are REMANDED for the following actions: 1. Afford the Veteran appropriate VA examination(s) to determine the current nature and etiology of any cervical spine disorder, shoulder disorder, left elbow disorder, hand/finger disorder, knee disorder, foot disorder, and sleep disorder diagnosed during the pendency of the appeal. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (a.) Identify all current disorders related to the body parts identified above. (b.) For each currently diagnosed disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to the Veteran’s military service, to include his presumed in-service exposure to contaminated water at Camp Lejeune. In offering such opinion, the examiner should address any lay statements of in-service injuries, events, or illnesses. (c.) If arthritis of any body part is diagnosed, the examiner should offer an opinion as to whether such manifested within one year of the Veteran’s separation from service in June 1988, i.e., by June 1989. If so, please describe the manifestations. In offering any opinion, the examiner should consider the Veteran’s statements regarding the onset and continuity of his related symptomatology. A rationale should be offered for any opinion provided. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana