Citation Nr: 1806425 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-26 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a compensable disability rating for right ear hearing loss. 2. Entitlement to service connection for a cervical spine disorder (hereinafter neck disorder). 3. Entitlement to service connection for bladder cancer, to include as due to exposure to designated herbicide agents and/or due to exposure to contaminants in the water at Camp Lejeune. 4. Entitlement to service connection for erectile dysfunction (ED), to include as due to exposure to designated herbicide agents and/or due to exposure to contaminants in the water at Camp Lejeune. 5. Entitlement to service connection for left ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from April 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that VA treatment records have been added to the claims file since the September 2013 issuance of the Statement of the Case. Review of these records reveals that they are cumulative and redundant of other evidence of record, and indicate that the Veteran has been receiving on-going treatment and consultations for the neck disorder issue on appeal. In January 2018 after the issuance of the most recent supplemental statement of the case, the RO posted the results of several VA examinations to the electronic claims file. However, the reports are not pertinent to the issues on appeal. Therefore, the Board may proceed with adjudication of the appeal. 38 C.F.R. § 20.1304 (c)(2017). The issues of entitlement to a compensable disability rating for right ear hearing loss and entitlement to service connection for left ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A cervical spine disorder was not manifest during service and is not attributable to service. Degenerative joint disease (DJD) was not manifest within one year of separation from service. 2. Erectile dysfunction did not manifest in service or within one year of service and is not attributable to an in-service injury, event, or disease. 3. The Veteran was stationed at the U.S. Marine Corps Base Camp Lejeune for a period of over 30 days in 1968. 4. The evidence of record supports a finding that the Veteran has bladder cancer that was causally related to, or aggravated by, active service, to include as due to exposure to contaminants in the water at Camp Lejeune. CONCLUSIONS OF LAW 1. A cervical spine disorder was not incurred in or aggravated by service and DJD may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for direct service connection for erectile dysfunction have not been met. Erectile dysfunction may not be presumed due to exposure to certain herbicide agents and/or due to exposure to contaminants in the water at Camp Lejeune. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309(e), 3.309(f) (2017). 3. Service connection for bladder cancer may be presumed due to exposure to contaminants in the water supply at Camp Lejeune. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Re-characterization of Issues The Board has separately re-characterized the issues of service connection for ED and bladder cancer to include both as due to exposure to designated herbicide agents and/or due to exposure to contaminants in the water at Camp Lejeune. . In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, even though the AOJ adjudicated the issues as service connection for ED and bladder cancer, to include as due to exposure to designated herbicide agents. The Board finds that the Veteran's symptoms and the evidence of record support the re-characterization of the issues, as noted above/ II. Duties 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In a January 2008 brief to the Board, the Veteran's representative contended that VA examinations and opinions were not provided but were warranted for the neck and ED disabilities. The Board disagrees and will address the contentions below. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). III. Service Connection 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). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for degenerative joint disease (DJD), if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2017). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a) (2017). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection based upon exposure to designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases associated with herbicide exposure for purposes of the presumption do not include bladder cancer or ED. 38 U.S.C. § 1116(a)(2) (2014); 38 C.F.R. § 3.309(e) (2017). Even though the evidence does not warrant presumptive service connection, the Veteran is not precluded from establishing service connection for bladder cancer and ED with proof of direct causation. See Combee v. Brown, 34 F.3d (Fed Cir. 1994). Service connection based upon exposure to contaminants in the water at Camp Lejeune may be presumed for certain diseases-subject to the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2017)-that become manifest a degree of 10 percent of more at any time after service. This presumption applies to Veterans has who resided or worked at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 for no less than 30 days. While the list of diseases associated with exposure to contaminants in the water at Camp Lejeune does not include ED, the list does include bladder cancer. 38 C.F.R. § 3.309(f) (2017). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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 Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 will be granted to the claimant. 38 U.S.C. § 5107 (2014); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A. Evidence The Veteran served as an engineering support Marine. His active duty included training and service at the U.S. Marine Corps Base Camp Lejeune and service in the Republic of Vietnam from October 1969 to April 1970. The Veteran contends that he incurred a neck disorder while in active service. He further contends that his current bladder cancer and ED are due to exposure to designated herbicide agents and/or due to exposure to contaminants in the water at Camp Lejeune. Review of the Veteran's military personnel records shows that the Veteran was stationed at the U.S. Marine Corps Base Camp Lejeune from November 19, 1968 to January 16, 1969 and for subsequent periods thereafter. In February 1969, the Veteran underwent a physical examination to establish a replacement medical record. However, the electronic claims file does contain entrance physical examination reports and records of care prior to that date, indicating that some records were recovered. Service treatment records are silent for any symptoms, diagnoses, injuries or treatment for the genitourinary system or cervical spine. The Veteran sought treatment for low back pain and shoulder tightness on one occasion in February 1970 after experiencing a fall going down a hill. There was no mention of neck symptoms. In his December 1970 separation examination, the examiner noted no abnormalities of the genitourinary system or cervical or lumbar spine. The Veteran underwent a VA back examination in February 1979. He made no mention of a neck injury when reporting the circumstances of his back injury. The examiner noted that the neck and shoulder were unrestricted and symptom free. There was no report of ED. Similar reports and observations were made in an October 2000 VA examination. In a July 2001 examination, the Veteran reported that the injury in service affected his back and knee but made no mention of the neck or shoulder. Review of the Veteran's VA treatment records reveal that the Veteran was first diagnosed, through x-ray imaging, with DJD of the cervical spine in November 2004. VAMC treatment records are silent as to reports of this neck disorder being onset in service or caused or aggravated by a service injury. The Veteran sought VA treatment for this neck disorder from 2001 (as indicated on the examiner's May 2007 treatment record) to October 2007. In October 2007, an examiner opined that there were degenerative changes of the cervical spine from C4 through C7. The Veteran was also afforded a neurosurgery consultation in October 2012. Subsequent records reveal that the Veteran has sought on-going consultation and treatment through October 2016, when he was afforded a magnetic resonance imaging (MRI) study. In January 2018, the Veteran's representative submitted two appellant's briefs. Concerning service connection for the Veteran's neck disorder, the representative contended that it is related to a multiple in-service "shoulder episodes." The Board has considered this contention carefully and finds that the evidence of record does not support a relationship of such a nature, especially in light of the date of onset of initial treatment for neck disorder and the Veteran's multiple reports of the circumstances of the fall in service that did not mention the neck. Moreover, the service records show only one occasion where the Veteran reported shoulder stiffness after the fall that strained his lower back. The suggestion that the fall was so traumatic as to necessarily include a neck injury is inconsistent with the records, highly speculative, and not within the representative's level of competency. The representative also contended that because service connection is warranted for bladder cancer, an examination and opinion is necessary to determine if ED is secondary to the bladder cancer. However, the representative does not point to any medical record or other evidence to suggest such a physiological relationship and is not competent to offer this generalized conclusion. VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board finds that VA examinations and opinions for a neck disability and for ED are not required because there is no event or injury in service that meets the second criterion for an examination. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Board has considered the representative's contentions that the Veteran's bladder cancer and ED are due to exposure to designated herbicide agents; however, we have already noted that neither bladder cancer nor ED fall within the ambit of the herbicide presumption. See 38 U.S.C. § 1116(a)(2) (2012); 38 C.F.R. § 3.309(e) (2017). Lastly, the representative advances a theory of entitlement to a presumption of service connection for bladder cancer based upon the Veteran's exposure to contaminants in the water at Camp Lejeune. B. Analysis Given that the Veteran has a current disability of a neck disorder, the required element of a current disease has been met. See Shedden, supra. However, in general, a veteran seeking disability benefits must establish not only the existence of a disease, but also an etiological connection between his military service and the disease. Id. When considering the pertinent evidence in light of the above-noted legal authority, the Board finds that service connection for the Veteran's neck disorder is not warranted. The evidence of record indicates that the Veteran had no serious injuries or illnesses during service involving the neck or genitourinary system. As mentioned above, the Veteran first sought consultation for his neck disorder in 2001, 31 years after service. Without an in-service incurrence, a nexus cannot be drawn between service and a current disability. See Shedden, supra. Therefore, service connection cannot be granted on a direct basis. Furthermore, in light of the silence in the STRs and absence of post-service treatment records within one year after service, the Veteran did not have characteristic manifestations sufficient to identify the disease entity (DJD) during service or within one year of separation. Finally, there is no credible evidence of continuity of symptomatology since separation from service. Turning to the issues of service connection for bladder cancer and ED, the Board notes that the evidence of record does show that the Veteran had received diagnoses for sexual dysfunction, not otherwise specified (NOS) and bladder carcinoma. See May 2005 VA Problem List Clinical Document, p.1. The Board concedes that these are current diseases. However, the silence as to these diseases in the STRs forecloses the possibility of drawing a nexus between these current diseases and service, hence foreclosing service connection on direct bases for either ED or bladder cancer. See Shedden, supra. As to the issue of herbicide exposure for purposes of the presumption, the Board notes that the Veteran has submitted no evidence to support this contention, so there is no way to discern what medical findings, epidemiological findings, or research findings, if any, have led that Veteran to assert these claims for entitlement to service connection for bladder cancer and ED, to include as due to exposure to designated herbicide agents. Therefore the Board disposes of this theory of entitlement here as neither bladder cancer nor ED are diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116(a) (2) (2014); 38 C.F.R. § 3.309 (2017). The preponderance of evidence is against the Veteran's claim for service connection for erectile dysfunction and there is no doubt to be resolved. See 38 U.S.C. § 5.107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Veteran's military personnel records show that his service included service at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 for no less than 30 days. Moreover, bladder cancer is a disease associated with exposure to contaminants in the water at Camp Lejeune. Therefore entitlement to service connection for bladder cancer, as due to exposure to contaminants in the water at Camp Lejeune is warranted here. As the positive and negative medical evidence is at least in relative equipoise, the benefit-of-the-doubt rule applies, and service connection for the Veteran's bladder cancer, as due to exposure to contaminants in water at Camp Lejeune is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, supra. ORDER Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for bladder cancer as due to exposure to contaminants in the water at Camp Lejeune is granted. Entitlement to service connection for erectile dysfunction, to include as due to exposure to designated herbicide agents and/or due to exposure to contaminants in the water at Camp Lejeune is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. 38 U.S.C. § 5102A (2012); 38 C.F.R. § 3.159 (2017). The Veteran's most recent VA audiological examination occurred in January 2011. A review of the evidence of record suggests that the Veteran has indicated that his right ear hearing acuity has diminished, subjectively and objectively. See, e.g., April 2016 Statement of Accredited Representative in Appealed Case. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v Brown, 6 Vet App 377, 381 (1994); see also Snuffer v Gober, 10 Vet App 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to identify whether there are any outstanding private audiological records. If there are outstanding records, prepare releases for the Veteran to sign, obtain the records, and associate them with the electronic claims file. 2. Schedule the Veteran for a VA audiological examination with an appropriate VA audiologist. The entire claims file, including a copy of this REMAND, must be made available to the examiner and the examiner should note review of the claims file. The examiner should provide complete audiological testing and provide thorough audiogram results for both right and left ears. The audiologist must consider and discuss the Veteran's accounts of symptoms and functional limitations. 3. After completion of the above review of the expanded record, re-adjudicate the claim for a compensable rating for right ear hearing loss and claim for service connection for left ear hearing loss. If any determination remains adverse to the Veteran, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs