Citation Nr: 18161274 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-31 101 Date: December 31, 2018 ORDER Entitlement to service connection for amputation, all toes left foot (left foot disability), to include as a result of contaminated water exposure is denied. Entitlement to service connection for amputation, all toes right foot (right foot disability), to include as a result of contaminated water exposure is denied. Entitlement to service connection for peripheral neuropathy, left foot, to include as a result of contaminated water exposure is denied. Entitlement to service connection for peripheral neuropathy, right foot, to include as a result of contaminated water exposure is denied. FINDINGS OF FACT 1. The preponderance of the available evidence demonstrates that the Veteran’s left foot disability is not causally or etiologically related to his active service, to include exposure to contaminated water at Camp Lejeune, North Carolina. 2. The preponderance of the available evidence demonstrates that the Veteran’s right foot disability is not causally or etiologically related to his active service, to include exposure to contaminated water at Camp Lejeune, North Carolina. 3. The preponderance of the available evidence demonstrates that the Veteran’s peripheral neuropathy, left foot, is not causally or etiologically related to his active service, to include exposure to contaminated water at Camp Lejeune, North Carolina. 4. The preponderance of the available evidence demonstrates that the Veteran’s peripheral neuropathy, right foot, is not causally or etiologically related to his active service, to include exposure to contaminated water at Camp Lejeune, North Carolina. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for amputation, all toes left foot (left foot disability), to include as a result of contaminated water exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017); 82 Federal Register 4173 (January 13, 2017). 2. The criteria for entitlement to service connection for amputation, all toes right foot (right foot disability), to include as a result of contaminated water exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309; 82 Federal Register 4173 (January 13, 2017). 3. The criteria for entitlement to service connection for peripheral neuropathy, left foot, to include as a result of contaminated water exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309; 82 Federal Register 4173 (January 13, 2017). 4. The criteria for entitlement to service connection for peripheral neuropathy, right foot, to include as a result of contaminated water exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309; 82 Federal Register 4173 (January 13, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1978 to March 1981. In March 2018, the Board denied entitlement to service connection for Hodgkin’s lymphoma and scleroderma, both claimed to include as a result of contaminated water exposure. The Board also remanded the remaining issues for additional evidentiary development. The appeal has since been returned to the Board for further consideration. Service Connection 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, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from 1957 through December 1987 were potentially exposed to drinking contaminated water with volatile organic compounds (VOCs), including trichloroethylene (TCE), perchloroethylene (PCE), benzine, and vinyl chloride. See M21-1 III.iii.2.E.7.a; M21-1 IV.ii.2.C.5.j. Based on analyses of potential exposures at Camp Lejeune and scientific studies involving these chemicals, the National Academy of Sciences National Research Council (NRC) provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants TCE and PCE. Fourteen diseases were placed into the category of limited/suggestive evidence of an association: 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. See M21-1 IV.ii.2.C.5.p. VBA has determined that manifestation of any of these diseases in a Veteran with verified Camp Lejeune service between 1957 and 1987 is sufficient to request a VA medical examination and an opinion regarding its relationship to Camp Lejeune service. See M21-1 IV.ii.2.C.12.f. During the pendency of this appeal, effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune from August 1, 1953, to December 31, 1987. See 82 Federal Register 4173 (January 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 and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease. Specifically, the rulemaking amends 38 C.F.R. §§ 3.307 and 3.309. Id. The Board observes that VA has verified that the Veteran was stationed at Camp Lejeune and potentially exposed to contaminated water. Although, the Veteran has not been diagnosed with any of the presumptive diseases, he contends that service connection is nonetheless warranted. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for amputation, all toes left foot and/or right foot (bilateral foot disability), to include as a result of contaminated water exposure. The Board notes that the Veteran’s service treatment records are silent as to any foot problems. The Board also notes that the Veteran has since received both VA and private treatment for his claimed foot problems. It appears that the Veteran underwent several surgical procedures during the course of his appeal where toes on each of his feet were amputated. Additional treatment records document complaints of bilateral foot ulceration. Recent treatment records appear to show that the Veteran has since had all of his toes amputated, bilaterally. Therefore, the remaining question is whether there is competent evidence of a relationship between the Veteran’s claimed bilateral foot disability and his active duty service. Pursuant to the Board’s March 2018 remand, the Veteran was afforded a VA examination in August 2018. The examiner determined that the Veteran’s bilateral foot disability is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness, nor is it attributable to contaminated water exposure. The examiner provided the following rationale in support of the aforementioned medical opinion: Service treatment records reviewed and appeared to be a poor copy and not all information could be read, however, what was listed that I could review, is a groin strain and hand strain. The records are silent for any foot or neuropathy complaints or treatment that I could find in the available information. Regarding exposure to Contaminated water at Camp Lejeune the examiner reported that the “Veteran's foot disability, including bilateral amputation of the toes, is less likely than not caused by or due to [Camp Lejeune Contaminated Water (CLCW)].” The examiner provided the following rationale in support of the aforementioned medical opinion: Veteran's bilateral foot disability (including bilateral foot ulcers and amputation of the toes) is less likely than not caused by or due to CLCW because it is almost certainly due to a combination of peripheral neuropathy and peripheral vascular disease instead. Veteran had evidence of both conditions on multiple podiatry exams for foot ulcers starting in 2012, with diminished or absent sensation to monofilament and vibration consistent with peripheral neuropathy as well as diminished or absent pulses and coolness to the touch consistent with peripheral vascular disease. Together, venous, arterial, and neuropathic ulcers account for up to 90% of all leg ulcers [citation omitted]. In Veteran's case, his peripheral neuropathy and peripheral vascular disease led to multiple foot ulcers, which unfortunately became severely infected and required multiple amputations. Given that peripheral neuropathy and peripheral vascular disease cause up to 90% of all leg ulcers, these two conditions are almost certainly the underlying cause of Veteran's bilateral foot disability, not CLCW exposure. In light of the above, the Board determines that the preponderance of the evidence shows that the Veteran’s bilateral foot disability is not causally or etiologically related to any disease, injury, or incident in service, to include his exposure to contaminated water at Camp Lejeune, North Carolina. The Board finds that the August 2018 VA opinion carries the most probative value regarding the question of whether the Veteran’s bilateral foot disability is related to service and exposure to contaminated water. The factual details discussed in this opinion demonstrates that the examiner was fully informed of the Veteran’s medical history, and the opinion was thoroughly articulated and supported by a reasoned analysis. Importantly, the examiner commented that medical literature does not support a relationship between his bilateral foot disability and exposure to contaminated water. Instead, the examiner commented that since “peripheral neuropathy and peripheral vascular disease cause up to 90% of all leg ulcers, these two conditions are almost certainly the underlying cause of Veteran’s bilateral foot disability, not CLCW exposure.” Finally, there is no evidence to suggest that the Veteran’s bilateral foot disability manifested within one year of discharge from active service. In making this decision the Board notes that the Veteran is competent to report his exposure to contaminated water and the circumstances surrounding such. The Board also acknowledges the lay evidence asserting that the Veteran’s bilateral foot disability is related to exposure to contaminated water. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran’s bilateral foot disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Given the above, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to service connection for peripheral neuropathy, left foot and/or right foot (bilateral peripheral neuropathy of the feet), to include as a result of contaminated water exposure Again, the Board notes that the Veteran’s service treatment records are silent as to any foot problems. The Board further notes that the Veteran has since received both VA and private treatment for his claimed foot problems. Additional treatment records document a diagnosis of bilateral peripheral neuropathy of the feet. Hence, the remaining question is whether there is competent evidence of a relationship between the Veteran’s claimed bilateral peripheral neuropathy of the feet and his active duty service. Pursuant to the Board’s March 2018 remand, the Veteran received a VA examination in August 2018. The examiner determined that the Veteran’s bilateral peripheral neuropathy of the feet is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness, nor is it attributable to contaminated water exposure. The examiner provided the following rationale in support of the aforementioned medical opinion: Veteran's bilateral peripheral neuropathy of the feet is less likely than not caused by or due to CLCW because it is almost certainly due to alcohol abuse instead. Long-term, excessive consumption of alcoholic beverages commonly produces a peripheral neuropathy with symptoms of decreased superficial sensation, hyperalgesia, and weakness [citation omitted]. In fact, depending on the diagnostic criteria used, polyneuropathy is reported to affect anywhere from 13-66% of chronic alcoholics [citation omitted]. One study of over 4000 patients 55 years and older found that alcohol abuse was second only to diabetes as the most common cause of peripheral neuropathy [citation omitted]. Given Veteran's lengthy history of alcohol abuse with consumption of 3-4 cases of beer and 2 quarts of whiskey per week, his peripheral neuropathy is almost certainly due to alcohol abuse, not CLCW exposure. Considering the above, the Board determines that the preponderance of the evidence shows that the Veteran’s bilateral peripheral neuropathy of the feet is not causally or etiologically related to any disease, injury, or incident in service, to include his exposure to contaminated water at Camp Lejeune, North Carolina. The Board finds that the March 2018 VA opinion carries the most probative value regarding the question of whether the Veteran’s bilateral peripheral neuropathy of the feet is related to service and exposure to contaminated water. The factual details discussed in this opinion demonstrates that the examiner was fully informed of the Veteran’s medical history, and the opinion was thoroughly articulated and supported by a reasoned analysis. Importantly, the examiner commented that medical literature does not support a relationship between his bilateral peripheral neuropathy of the feet and exposure to contaminated water. Instead, the examiner attributed the Veteran’s bilateral peripheral neuropathy of the feet to his “lengthy history of alcohol abuse.” Finally, there is no evidence to suggest that the Veteran’s bilateral peripheral neuropathy of the feet manifested within one year of discharge from active service. The Board reiterates that the Veteran is competent to report his exposure to contaminated water and the circumstances surrounding such. The Board also acknowledges the lay evidence asserting that the Veteran’s bilateral peripheral neuropathy of the feet is related to exposure to contaminated water. However, the Veteran is not a trained medical expert and is not competent to render an opinion on a complex medical question such as the one at hand. Given the above, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel