Citation Nr: 18156693 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 14-32 562 DATE: December 11, 2018 ORDER Entitlement to service connection for skin disability, including as due to contaminated water exposure at Camp Lejeune, is denied. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from June 1966 to October 1966, May 1968 to October 1969 and September 1969 to November 1970. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO). A hearing conducted by a Decision Review Officer was held at the RO in October 2015. A transcript of the hearing has been associated with the Veteran’s claims file. The Board further notes that a substantive appeal (VA Form 9) regarding the issue on appeal was not received at the RO for this matter. However, the Board finds that the filing of a timely substantive appeal was waived when the RO certified the appeal to the Board. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing of a timely substantive appeal may be waived, and that, where the RO takes action to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal). FINDINGS OF FACT 1. The Veteran is currently diagnosed with dermatitis with symptoms of psoriasis. 2. The Veteran is presumed to have been exposed to contaminated water during his service at Camp Lejeune. 3. The Veteran’s currently skin disability is not a disease per VA regulation that is associated with exposure to contaminated water at Camp Lejeune. 4. The Veteran’s skin disability is not shown to be etiologically related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability are not met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1966 to October 1966 and September 1969 to November 1970. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of the Department of Veterans’ Affairs Regional Office (RO). Preliminary Matters During the DRO hearing on October 2015, the Veteran reported that he was treated for his skin condition within a year of separation from service. The RO attempted to locate these records but received a response indicating that the records were destroyed and the treating physician is deceased. See December 2015 Response from CRMC. Additional efforts to secure any such records would be futile. The Board has limited the discussion below to the relevant evidence required to support its finding of facts and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection – Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), 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). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Analysis The Veteran seeks service connection for a skin disability, which he believes was incurred during service at Camp Lejeune, North Carolina, or alternatively, within one year of such service. Initially, the Board finds that the Veteran has a current disability of a skin disability. The Veteran is diagnosed with dermatitis with symptoms suggestive of psoriasis. See July 2018 C&P Examination report. The service personnel records demonstrate that the Veteran was stationed at Camp Lejeune from September 1969 to November 1970. Based on such service, he is presumed to have been exposed to water contamination during such service. The Board next determines whether the Veteran’s current skin disability is a disease associated with exposure to contaminants in the water supply in Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). In this case, the Veteran’s diagnosed dermatitis with symptoms of psoriasis is not a disease for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id. In fact, no skin disabilities are associated with the water contamination. The Board therefore concludes that service connection based on the regulatory presumption is not warranted. Id. Service connection on a direct basis is also not warranted. There is no competent evidence linking the Veteran’s current skin disability to his military service. In July 2018, the Veteran was provided a VA compensation examination and the VA examiner conducted an in-person examination of the Veteran and reviewed his claims file. The examiner indicated that the Veteran’s current skin disability is not a disease listed under 3.309 and is therefore not associated with exposure to contaminants in the water supply of Camp Lejeune. In September 2018, the same VA examiner provided an addendum in which he confirmed the prior opinion that the skin disability is less likely as not related to service and was unable to relate the Veteran’s current skin disability to in-service contaminated water without resorting to speculation, explaining that he is not an expert in water contamination. The Board finds the July 2018 and September 2018 opinions to be probative because the opinions were offered after an in-person examination and a review of the record. The Veteran is competent to report lay observable symptoms of his skin condition. However, he is not competent to provide evidence as to more complex medical questions, such as a medical nexus. See Layno v. Brown, 6 Vet. App. 465 (1994). Although, lay evidence is competent to relate lay observable symptoms, it is not competent to diagnose and determine the etiology of that diagnosis. This issue is also medically complex, as it requires knowledge of the types of impaired hearing and its causes. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board points out that the Veteran’s assertion that his skin disability is related to inservice water contamination is speculative. He has not submitted any competent evidence linking the two or evidence even suggesting such a relationship. The Veteran submitted lay statements from his spouse in which she states that the Veteran has a rash that sometimes requires emergent care. See June and July 2013 Statements from Former Spouse. Although competent to report what she has witnessed, she is not competent to relate the Veteran’s skin symptoms to his military service as she is not shown to possess the requisite medical training. In sum, the requirement of a competent nexus between the Veteran’s current skin disability and the in-service water contamination has not been met. A preponderance of the evidence of record weighs against the claim of service connection for a skin disability and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Wagner, Counsel