Citation Nr: 18158676 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-45 409 DATE: December 17, 2018 ORDER Service connection for memory loss is denied. Service connection for headaches is denied. Service connection for a mental condition is denied. Service connection for a sleep disorder is denied. REMANDED Service connection for vertigo/equilibrium is remanded. Service connection for a liver condition is remanded. Service connection for diabetes mellitus is remanded. Service connection for hypertension is remanded. FINDINGS OF FACTS 1. The weight of the evidence is against finding that the Veteran has memory loss. 2. The weight of the evidence is against finding that the Veteran has headaches related to his military service. 3. The objective evidence does not show that the Veteran has a current sleep disorder. 4. The objective evidence does not show that the Veteran currently has a mental disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a memory loss have not been met. 38 U.S.C. §§ 1131, 5013, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1131, 5013, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for a mental disorder have not been met. 38 U.S.C. §§ 1131, 5013, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1131, 5013, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1984. This matter is on appeal from an October 2014 rating decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship 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 filed his service connection claim for diabetes mellitus, headaches, hypertension, liver conditions, memory loss, mental health condition, sleep disorder, and vertigo in March 2014, which was denied by an October 2014 rating decision. He asserts that he was exposed to contaminated water at Camp Lejeune, which resulted in various illnesses, or alternatively as a result of being administered mefloquine during service. The record establishes that the Veteran was on active duty at Camp Lejeune duty during his time on active duty and he is presumed to have been exposed to certain chemicals that were contained in the ground water. Specifically, two of the eight water treatment facilities supplying water to the base were found to be contaminated with either trichloroethylene (TCE) or tetrachloroethylene (perchloroethylene, or PCE) from an off-base dry-cleaning facility. The Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (ATSDR) estimated that TCE and PCE drinking water levels exceeded current standards from 1957 to 1987 and represented a public health hazard. In addition to TCE and PCE, ATSDR has also indicated that high concentrations of benzene, Vinyl Chloride, and trans-1, 2-dichloroethylene (1, 2-DCE) were detected in the drinking water system. However, chemical exposure at Camp Lejeune alone does not mandate service connection. Rather, it must be shown that the Veteran has one of a set of conditions that are presumptively linked to the contaminated water, or competent evidence must explain why a current disability was caused by the presumed exposure to contaminated water. 38 C.F.R. §§ 3.307 and 3.309 establish 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 and other myelodysplastic syndromes • Bladder cancer • Kidney cancer • Liver cancer • Multiple myeloma • Non-Hodgkin’s lymphoma, and • Parkinson’s disease. Here, the evidence does not establish any of these conditions, and the Veteran has not contended to the contrary. He does argue that he developed a number of health problems in the years following service which he believes are the result of his military service. 1. Service connection for memory loss The Veteran asserts that he suffers from memory loss as a result of his military service, specifically his exposure to contaminated water at Camp Lejeune. Service treatment records are silent for complaints or diagnosis relating to poor memory. Post service treatment records also failed to show any symptoms or diagnosis of memory loss, or any diagnosis of a disability manifested by memory loss. In support of is claim, the Veteran submitted internet links to online articles relating to water contamination at Camp Lejeune. The Court has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). However, the evidence submitted by the Veteran is not accompanied by the opinion of any medical expert. The Board understands the Veteran’s arguments and has reviewed the articles he submitted. However, none of the articles overcome the medical evidence of record that is directly on point in this case. The Veteran has also submitted a June 2013 letter from a private physician listing out possible neurobehavioral effects due to exposure to Camp Lejeune Contaminated Water. While the physician listed memory loss and slowed thinking as common symptoms of exposure, the letter failed to indicate that the Veteran has any disability manifested by memory loss. Consideration has been given to the Veteran’s allegation that he has memory problems. While he is competent to report such instances, he is not competent to provide a medical diagnosis relating to memory retention, as he lacks the medical training or qualification. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). His opinion therefore cannot provide the requisite nexus. The U.S. Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, service connection for memory loss is denied. 2. Service connection for headaches The Veteran contends that he developed headaches/migraines as a result of his service. In his August 2015 Notice of Disagreement, the Veteran asserted that he experiences headaches and sensitivity to light. Service treatment records are silent for complaints or diagnosis relating to headaches or migraines. VA treatment records in May 2015 revealed that a physical examination was negative for headaches and dizziness. It was noted that the Veteran reported headaches between June and August 2010. However, it was found to be related to a sinus condition and not to any chemical exposure in service. The record in this case is lacking any competent evidence to establish the presence of chronic headaches. In support of his claim, the Veteran submitted a June 2013 letter from a private physician listing ‘headaches’ as a possible neurobehavioral effect due to exposure to Camp Lejeune Contaminated Water. However, the letter does not indicate that the Veteran currently experiences chronic headaches. The Board has considered the Veteran’s allegation that he has chronic headaches and migraines since his service. While he is competent to report such symptoms, he lacks the medical training or qualification to offer a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s assertion has not been supported by objective medical records. As noted, the Veteran was found to experience headaches, but they were related to the Veteran’s sinus problems and not to service. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. Thus, where, as here, the claims file contains insufficient evidence to establish the presence of a current disability, there can be no valid claim for service connection. See Brammer, 3 Vet. App. 49, 53-56. Thus, service connection for headaches is not warranted. 3. Service connection for a mental health condition The Veteran contends that he developed a mental health condition as a result of his military service. Service treatment records were silent as to any complaints of diagnosis relating to a mental condition. Post-service treatment records also documented no diagnosis of a mental disorder. An August 2014 VA treatment record noted that the Veteran was awake, alert, and conversed normally. His speech was intact and his posture was normal. A December 2014 record noted that the Veteran had no change in his mental status and did not demonstrate any violent behavior. The Board finds that other than the Veteran’s own statements, the record does not contain any competent objective evidence that indicates a current diagnosis of mental condition. While the Veteran is competent to report symptoms, he is not competent to provide a diagnosis, as he lacks medical knowledge and experience. See Jandreau, 492 F.3d 1372. Accordingly, in the absence of a current mental condition, service connection cannot be awarded. In the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The Veteran still ultimately bears some burden of production. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a current disability, entitlement to service connection is not warranted. See Brammer, 3 Vet. App. 223 at 225. 4. Sleep Disorder The Veteran contends that he developed a sleep disorder as a result of his military service. Service treatment records are silent for complaints, treatment, or diagnosis of a sleeping disorder. VA treatment records post service show that the Veteran was educated on many occasions regarding sleep disorders being a risk factor for obesity. However, the medical records failed to show that the Veteran currently has a sleep disorder. For there to be any service connection, the first element is a diagnosis. As the record does not reflect a current diagnosis for any sleep disorder, the Board determines that a current diagnosis of a sleep disorder cannot be established. VA treatment records do mention sleep apnea, but only in discussing possible risk factors for obesity. Lacking a current diagnosis, the cornerstone element of service connection has not been met, and service connection for hypertension cannot be established on any basis. See Brammer, 3 Vet. App. 223, 225. Accordingly, service connection for a sleep disorder is denied. The Board recognizes the Veteran’s lay statements regarding his sleep disorder. However, in weighing the evidence, the Board finds that the medical evidence of record preponderates against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND 1. Vertigo/Equilibrium is remanded. The Veteran contends that he developed vertigo as a result of his exposure to contaminated water while stationed at Camp Lejeune. His service treatment records do not show any diagnoses or symptoms relating to vertigo. In support of his claim, the Veteran submitted a July 2018 letter from his VA physician, indicating that the Veteran is currently being treated for loss of balance and dizziness and that the condition is more likely than not related to the Veteran’s prolonged exposure to contaminated water at Camp Lejeune and Mefloquine Larium. The Board notes that VA treatment records noted a history of vertigo, as reported by the Veteran. However, the treatment records failed to show an official diagnosis or treatment for vertigo. While the VA physician offered a positive nexus opinion, the Board finds that the opinion lacks adequate rationale to support its conclusion. Thus, further development is required. 2. Liver condition is remanded. The Veteran contends that he suffers from a liver condition as a result of his exposure to contaminated water at Camp Lejeune. His service treatment records do not show treatment or diagnosis relating to a liver condition. VA treatment records do show a history of liver abnormality, as reported by the Veteran. It was also noted that he has a history of cell-growth on his liver, which was discovered in 1992. Treatment records dated April 2014 show that his liver function was ‘close to normal.’ However, in August 2016, diagnostic imaging of the liver and biliary tract revealed ‘abnormal findings.’ The Veteran also submitted a July 2018 letter from his VA physician, concluding that the Veteran’s liver condition is more likely that not related to his service, specifically to his prolonged exposure to contaminate water at Camp Lejeune. However, such conclusion was not supported by adequate rationale. Given the lack of a diagnosis, the Board seeks clarification as to the Veteran’s current liver condition and its etiology. 3. Diabetes Mellitus is remanded. The Veteran contends that he developed diabetes mellitus as a result of his military service. His service treatment records are silent for treatment or diagnosis relating to diabetes mellitus. The has reported being diagnosed with diabetes mellitus in 2000. While the Board acknowledges that the Veteran currently has a diagnosis of diabetes mellitus, the record does not reflect an opinion on its etiology. 4. Hypertension is remanded. The Veteran contends that he developed hypertension as a result of his military service. Service treatment records do not show a diagnosis or treatment for hypertension. Post service, the Veteran reported suffering from hypertension. In support of his claim, the Veteran submitted a July 2018 letter from his VA physician, indicating that the Veteran’s hypertension is caused by his military service, specifically to his prolonged exposure to contaminated water at Camp Lejeune. In review of the record, the Board finds that it is unclear as to whether the Veteran has a current diagnosis of hypertension. Additionally, while his VA physician provided a positive nexus opinion, such conclusion was unsupported by any rationale. Thus, further development is necessary. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records relating to the Veteran’s claims. 2. Contact the Veteran and request that he identify any medical treatment he has received since service. Attempt to obtain any identified treatment. 3. Schedule the Veteran a VA examination for his vertigo/equilibrium problems. The examiner should address the following question: Is it at least as likely as not (50 percent or greater) that the Veteran’s vertigo was caused by or otherwise related to his military service, specifically his exposure to contaminated water at Camp Lejeune or the prescription of mefloquine? Why or why not? The examiner should consider the June 2013 letter from Dr. M. Koopmeiners and the July 2018 letter from Nurse Practitioner C. Mayhew. 4. Schedule the Veteran for a VA examination for his liver condition. The examiner is to address the following: Diagnose any current liver condition. If a liver condition is diagnosed, opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s liver condition was caused by or otherwise related to his military service, specifically his exposure to contaminated water at Camp Lejeune or the prescription of mefloquine? Why or why not? 5. Schedule the Veteran for a VA examination for his diabetes mellitus. The examiner is to address the following: Is it at least as likely as not (50 percent or greater) that the Veteran’s diabetes mellitus was caused by or otherwise related to his military service, specifically his exposure to contaminated water at Camp Lejeune or the prescription of mefloquine? Why or why not? 6. Schedule the Veteran for a VA examination for his hypertension. The examiner is to address the following: Does the Veteran currently have a diagnosis of hypertension? If the Veteran has hypertension, is it at least as likely as not (50 percent or greater) that it either began during or was otherwise caused by his military service, to include as a result of his presumed exposure to contaminated water at Camp Lejeune or the prescription of mefloquine? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel