Citation Nr: 18159400 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 10-22 311 DATE: December 19, 2018 ORDER Entitlement to service connection for diabetes mellitus (to include as due to exposure to contaminated water at Camp Lejeune, NC and/or permanently aggravated as secondary to the service connected bilateral foot disability) is denied. Entitlement to service connection for retinitis (claimed as blurry vision) is denied. FINDINGS OF FACT 1. The Veteran’s service records document service at Camp Lejeune from November 1980 to August 1982, during a recognized period of contamination. 2. Diabetes mellitus was not shown in service or for many years thereafter, and has not been shown by competent evidence to be associated with service, to include exposure to contaminated drinking water while stationed at Camp Lejeune, or to a service-connected disability, to include service-connected bilateral foot disability. 3. The Veteran’s retinitis disability (blurry vision) has not been shown by competent evidence to be as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 2. The criteria for entitlement to service connection for retinitis (blurry vision) have not been met. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from August 1980 to September 1983. These matters come before the Board of Veterans’ Appeals (Board) originally on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The most recent rating decision to address these occurred in January 2016. Importantly, the Veteran’s service records document his time spent at Camp Lejeune during a recognized period of contamination, more specifically from November 1980 to August 1982. The Board remanded this case for additional development in April 2012. In brief, the remand instructed the Veteran to be scheduled for a VA medical examination to address the likely etiology of his diabetes mellitus, as well as any disorder affecting the Veteran’s eyes, including his vision. As is noted in the next section, those medical examinations are deemed to be fully adequate. As such, upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In addition, the Veteran had previously appealed the issue of entitlement to service connection for lichen simplex chronicus an tinea ungunium (claimed as skin bumps and itching), however this issue was granted by the RO in an August 2016 Rating Decision, effective April 2, 2009. There is no indication that the Veteran has disagreed with the rating assigned, and thus the issue is no longer on appeal. VA’s Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify has been met. The Veteran has been provided ample notification in the form of VA correspondence and VCAA notice, from as early as May 2009, to as recent as August 2016. Neither the Veteran, nor his representative, have alleged prejudice with regard to notice. The Federal Court of Appeals has held that “absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran....” See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. As for the duty to assist, all identified and authorized records relevant to the matters have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, non-VA (private) treatment records, and statements in support of the claim. The development requested on remand has been substantially completed. There is no evidence of any additional existing pertinent records. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran’s complaints and symptoms. VA’s duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159 (c)(4). The available medical evidence is found to be sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. The Veteran testified at a hearing before the undersigned in August 2011. Under 38 C.F.R. § 3.103 (c)(2) (2015), the hearing officer has the responsibility to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the hearing officer has two duties under § 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id. at 496-97. At the hearing, the Veteran had an opportunity to provide testimony in support of the claims, facilitated by questioning from the undersigned and the representative of record. The Veteran did not raise any new issues at the hearing, and there is no indication that any outstanding evidence might exist that would provide additional support for the claims. See id. The undersigned also explained to the Veteran that he needed to show a nexus or relationship to the contaminated drinking water at Camp Lejeune with regard to diabetes. Moreover, VA has otherwise developed the record, including arranging for an examination and opinion in July 2016 that addresses the outstanding issues of whether the Veteran’s diabetes is related to contaminated drinking water at Camp Lejeune. See id. at 498-99 (finding that any deficiencies in discharging the hearing officer’s duties under § 3.103(c)(2) were rendered harmless by otherwise developing the record). Given this development, in addition to the Veteran’s testimony at the hearing and the evidence in the claims file, the “clarity and completeness of the hearing record [is] intact” and there is no prejudicial error concerning the hearing officer’s duties under § 3.103(c)(2). See Bryant, 23 Vet. App. at 498 (holding that the rule of prejudicial error applies to the hearing officer’s duties); see also Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009). In sum, the Veteran has had a meaningful opportunity to participate effectively in the processing of these claims, and no prejudicial error has been committed in discharging VA’s duties to notify and assist. See also Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). Service Connection A Veteran may be entitled to service connection for a disability as secondary. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). There is also a presumption of service connection for the chronic diseases listed in 38 C.F.R. § 3.309 (a), which includes diabetes mellitus. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Under the presumption, if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id.; Walker, 708 F.3d at 1338-39. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for diabetes if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). 1. Entitlement to service connection for diabetes mellitus (claimed as including association with exposure to contaminated water at Camp Lejeune, NC and/or permanently aggravated as secondary to the service connected bilateral foot disability). The Veteran is claiming that he is entitled to service connection for his diabetes mellitus as associated with his exposure to contaminated water at Camp Lejeune, NC, in addition to as secondary to his service condition bilateral foot disability. As an initial matter, the Veteran has not stated and there is no evidence suggesting that his diabetes manifested during service or within one year of service separation, or are otherwise related to an in-service disease or injury. At the August 2011 hearing, the Veteran stated that his diabetes was first diagnosed in December 2007, which is consistent with the VA treatment records, as well as the Veteran’s report at the August 2016 VA examination. Accordingly, presumptive service connection for diabetes as a chronic disease is not established. See 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1338. Furthermore, the record is clear, and it has not been alleged, that the Veteran’s disability manifested itself within one year of service. 38 C.F.R. § 3.307, 3.309(a). It is VA policy to presume that anyone who served at Camp Lejeune between August 1953 and December 1987 was potentially exposed in some manner to the full range of chemicals known to have contaminated the base’s water supply. VBA Manual M21-1, III.iii.2.E.7.a. Thus, the Veteran is presumed to have been potentially exposed to chemicals known to have contaminated the water supply, including trichloroethylene (TCE) and tetrachloroethylene or perchloroethylene (PCE). See VBA Manual, M21-1, IV.ii.1.I.15.a. Benzene and vinyl chloride were also detected in the drinking water system. Id., see also “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects” (2009), the National Academy of Sciences’ National Research Council. In a report titled “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects” (2009), the National Academy of Sciences’ (NAS) National Research Council (NRC) reviewed studies assessing exposure to TCE, tetrachloroethylene or PCE, as well as solvent mixture exposure. Id. Fourteen diseases were identified as having limited or suggestive evidence of an association with exposure to these chemicals: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage (with exposure during pregnancy), scleroderma, and neurobehavioral effects. Id. Benzene and vinyl chloride have also been associated with the development of certain cancers by other scientific organizations. See VBA Manual, M21-1, IV.ii.1.I.15.a. Although the Veteran is presumed to have had some potential exposure to the chemicals known to have contaminated the water at Camp Lejeune, including TCE, tetrachloroethylene or PCE, solvent mixtures, benzene, and vinyl chloride, none of these chemicals have been associated with the development of diabetes mellitus. In this regard, the available data does not include diabetes among known possible health effects from contaminated water at Camp Lejeune. As noted, this case was previously remanded from the Board in April 2012 for a VA examination, in part to assess whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes was caused by his exposure to contaminated drinking water at Camp Lejeune in 1980 to 1982. The Veteran received that VA examination in July 2016. During that VA examination, the examiner concluded that “diabetes mellitus is not a condition associated with the contaminants in the water at Camp Lejeune.” The examiner also opined that the Veteran’s obesity and family history are known risk factors which more so contribute to his diabetes mellitus. The examiner did consider the Veteran’s medical history, and had access to and reviewed the Veteran’s treatment records. The examiner was aware of all pertinent facts. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). There is no evidence that the VA examiner was not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. In his lay testimony and in statements in support of his claim, the Veteran contends that his diabetes is due to the contaminated drinking water at Camp Lejeune. He has not however provided any rationale or supporting evidence for his belief that the contaminated water at Camp Lejeune may have caused his diabetes apart from the fact that such exposure has been associated with other diseases. Lay testimony may be competent evidence with respect to both the diagnosis and the etiology or cause of a disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, the determination in this case is medically and scientifically complex. Whether exposure to the chemicals in the water at Camp Lejeune may have caused the development of certain diseases many years later cannot be made based on lay observation alone given the time lapse, and which is also evident from the fact that NAS and other scientific organizations have been conducting research on the subject. Thus, a competent medical or scientific opinion is more probative evidence. See Jandreau v. Nicholson 492 F. 3d 1372, at 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature”); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Accordingly, because he is a lay person in the fields of medicine and science, the Veteran’s unsupported opinion is not competent evidence, and thus lacks probative value. See Layno, 6 Vet. App. at 470-71 (in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). Moreover, because his opinion is inherently speculative and not supported by any rationale, it lacks probative value on this ground as well. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions). Consequently, the Veteran’s opinion is outweighed by the July 2016 examiner’s opinion. The July 2016 VA examination constitutes probative evidence weighing against the claims, as it was rendered by a medical professional and is supported by a rationale specific to the Veteran’s medical history, finding that this history more likely accounted for the development of diabetes. See id.; Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the “authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence”); 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). Accordingly, service connection for diabetes based on the Veteran’s exposure to contaminated drinking water at Camp Lejeune is not established, as the preponderance of the evidence weighs against a medical relationship or nexus. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a). The Veteran is also claiming that he is entitled to service connection for his diabetes mellitus as secondary to his service condition bilateral foot disability. As noted, to meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). The Veteran has met the first and second criteria for secondary service connection. First, the Veteran has a current condition of diabetes mellitus, as diagnosed in December 2007, which is not currently service-connected. Second, the Veteran is currently service connected for his bilateral foot disability, which was originally granted in a September 2004 Rating Decision with an effective date of June 15, 1999. The third criteria however has not been met. The Veteran was given a VA examination in August 2016, whereby the examiner opined that the Veteran’s current diagnosis of diabetes mellitus “is less likely than not to be caused by his service connected foot condition.” The examiner believed that the Veteran could lower his risk of diabetes through modification of his diet. The examiner also stated that the Veteran’s diabetes was not permanently aggravated as a result of his bilateral foot disability. The examiner considered the Veteran’s medical history, the Veteran’s lay statements, and the Veteran’s treatment records. The examiner was aware of all pertinent facts. Snuffer, 10 Vet. App. at 403-04; Mariano, 17 Vet. App. at 311-312. Furthermore, the earlier July 2016 VA examiner also opined that the Veteran’s obesity and family history are known risk factors which more so contribute to his diabetes mellitus. There is no evidence that the VA examiners were not competent or credible, and as their reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. The Veteran contends that his bilateral foot disability limits his physical activity, which thus caused his diabetes. While the Veteran may speculate as to the etiology of his current disability of diabetes mellitus, this contention must be assessed and confirmed by a professional medical examiner. In fact, this exact contention by the Veteran was addressed during the August 2016 VA examination, where the examiner opined that the Veteran’s “limited physical activity is not the only way to prevent DM (diabetes mellitus). The examiner explained that the Veteran could modify his diet to lower his risk of DM. As such, the examiner provided a rationale to support his conclusion that Veteran’s DM is less likely than not to be caused or aggravated by his service connected foot disability. See further, Nieves-Rodriguez, Id. Therefore, the Board finds that the medical evidence is entitled to more probative weight than the lay statements of the Veteran. As such, while the Veteran has met the first and second criteria for secondary service connection, the third has not been met. In sum, there is no evidence suggesting that the Veteran’s diabetes manifested during service or within one year of service separation, or are otherwise related to an in-service disease or injury, so presumptive service connection for diabetes as a chronic disease is not established. See 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1338. Furthermore, it is less likely than not the case that the Veteran’s exposure to contaminated drinking water at Camp Lejeune caused his diabetes mellitus, as the preponderance of the evidence weighs against a medical relationship or nexus. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a). Finally, the Veteran’s diabetes mellitus is less likely than not caused by his service-connected bilateral foot disability, as the probative weight of the medical evidence is against such a finding. See Nieves-Rodriguez, Id. Since the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply, and service connection for diabetes is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for retinitis (claimed as blurry vision). The Veteran believes that he is entitled to service connection for his retinitis disability (claimed as blurry vision). To establish direct service connection for retinitis, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303(a). Regarding the first criteria, the Veteran was given a VA examination for his eye condition, the examiner found that each eye was rated at 20/40 or better, for both uncorrected near and distance acuity. The Examiner took note of a record of an isolated dot heme in the Veteran’s right eye from a previous exam on June 24th, 2016, and the examiner noted that that dot hemorrhage “was not evident on examination today.” While the visual acuity of each eye is not currently severe enough to warrant a compensable disability rating (under diagnostic code 6099-6006), for the purposes of argument, the first criteria can be conceded on the basis of the Veteran’s lacrimal gland and lid disorders. Moving to the second criteria, the Veteran’s lay testimony goes to establishing an in-service injury or event. The Veteran reported during his videoconference hearing that his blurry vision problems first occurred in service around April 1983 when a fire extinguisher “exploded [and] hit me in my face.” From that, the Veteran reported that he went to the medical center and was given a one-time treatment for an eye solution. The Veteran is competent to report this injury. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This information has also been confirmed by his Service Treatment Records, which notes that a “CO2 extinguisher went off in [the Veteran’s] face.” As such, there is no evidence that this assertion is not credible, and therefore it is entitled to probative weight. As such, the Board finds that the Veteran has met the second criteria for direct service connection for retinitis. While the Veteran has arguably met the first criteria, and has clearly met the second criteria, the final criteria of a medical nexus is not present. During the VA examination, the examiner specifically noted that “the patient’s blurry vision is not as likely as not incurred in or caused by his time in the service. The patient’s ocular status is a natural progression of aging and is within normal limits at this time.” There is no evidence that the VA examiner was not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295 (Continued on the next page)   In conclusion, the claim of entitlement to service connection for retinitis (blurry vision) must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel