Citation Nr: 1807582 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 891A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a liver disability, to include as due to contaminated water at Camp Lejeune. 2. Entitlement to service connection for a memory and cognitive disability, to include as due to contaminated water at Camp Lejeune and/or secondary to the Veteran's liver disability. 3. Entitlement to service connection for neuropathy in the bilateral upper extremities, to include as due to contaminated water at Camp Lejeune and/or secondary to the Veteran's liver disability. 4. Entitlement to service connection for neuropathy in the bilateral lower extremities, to include as due to contaminated water at Camp Lejeune and/or secondary to the Veteran's liver disability. 5. Entitlement to service connection for erectile dysfunction, to include as due to contaminated water at Camp Lejeune and/or secondary to the Veteran's liver disability. REPRESENTATION Appellant represented by: Michael Shea, Attorney WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from March 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) from the May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran appeared at a February 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The issues of service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was stationed at Camp Lejeune and is presumed to have been exposed to contaminated water during active service from December 1981 to July 1983. 2. The Veteran's liver disability is related to his military service. 3. The Veteran's memory and cognitive disability was caused by his liver disability. 4. The Veteran's neuropathy in his bilateral upper extremities was caused by his liver disability. 5. The Veteran's neuropathy in his bilateral lower extremities was caused by his liver disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a liver disability have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). 2. The criteria for service connection for a memory and cognitive disability have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. The criteria for service connection for neuropathy in the bilateral upper extremities have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 4. The criteria for service connection for neuropathy in the bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's 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.A. §§ 5100, 5102, 5102, 5103(A), 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). In this case, the Board is granting the claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Other Due Process Considerations As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in February 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his disabilities. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited attorney. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). III. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Under 38 C.F.R. § 3.310, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service connected disease or injury, or for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). IV. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Exposure to contaminated water at Camp Lejeune is conceded as the Veteran's service records confirm his service at Camp Lejeune for more than thirty days during his active duty service from March 1989 to July 1983. See 82 Fed. Reg. 4173, 4173-4185 (Final Rule, eff. Mar. 14, 2017). The Veteran contends that service connection for all of the above listed issues is warranted as due to in-service exposure to contaminated water Camp Lejeune. DD Form 214 shows that the Veteran's last duty station in service was Camp Lejeune; accordingly, the Board finds that exposure to contaminated water at Camp Lejeune is established. Service connection may 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. As such, none of the Veteran's claimed issues are diseases for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id. However, 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); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Liver Disability The Veteran has been diagnosed with cirrhosis of the liver. There is some confusion in the record as to whether or not the Veteran's liver disability is attributable to excessive alcohol abuse. However, the Board finds the Veteran's and the Veteran's family member's lay statements in the record credible regarding the Veteran's limited alcohol use. In fact, the Veteran has stated throughout the record that he never told his physician that he abused alcohol and does not know where this information came from. Therefore, the Board finds the August 2012 VA addendum opinion that the Veteran's cirrhosis of the liver and accompanying memory and cognitive defects are more likely than not caused by chronic alcohol abuse to be of little probative value as this examination relies on inaccurate facts. Additionally, there are medical records, as discussed below, which indicate that the Veteran's liver disability, and subsequent memory and cognitive disability, are related to his exposure to contaminated water and toxic materials in service and not alcohol abuse. In August 2013, the Veteran's primary physician provided an opinion regarding the etiology of the Veteran's liver disability. The physician stated that he is not aware of any medical records available demonstrating any known liver disease in the Veteran's condition prior to his military service. The physician stated that although this does not preclude the possibility that the Veteran had damage to his liver prior to his military service, or that alcohol consumption may have contributed to the Veteran's cirrhotic condition, it is more likely than not, that the Veteran suffered ill effects from the consumption of contaminated water during the time of his stay at Camp Lejeune. The physician further stated that any records eluding to a history of hepatitis C are not supported by any records that the physician has seen and the Veteran's report to the physician of limited alcohol consumption lead the physician to doubt that hepatitis C or alcohol use were contributing factors to the Veteran's liver disability. Additionally, July 2013 and January 2014 private medical opinions state that the Veteran has end-stage decompensated cirrhosis because of chronic intractable hepatic encephalopathy. The physician stated that, in his opinion, the Veteran will not be able to engage in any type of meaningful occupation at the current time. The physician continued to state that although the etiology of the Veteran's liver disease has never been fully explained, the Veteran had multiple chemical exposures while in the military (water contamination at Camp Lejeune) and that there is no other explanation for the Veteran's cirrhosis. The physician stated that he believes that it is more than likely that the Veteran's toxic exposures in service contributed significantly to his present liver disease. The physician stated that the only realistic treatment option is a liver transplant. In June 2014, the Veteran underwent a VA liver conditions disability benefits questionnaire. The examiner noted that the Veteran is currently diagnosed with cirrhosis of the liver with a diagnosis date of 2007. The examiner stated that the Veteran is a liver transplant candidate and his liver condition impacts his ability to work. However, the examination does not provide an opinion as to the etiology of the Veteran's liver disability. Finally, a December 2014 medical statement notes that the Veteran is diagnosed with Nonalcoholic Steatohepatitis (NASH)/non-alcohol liver disease. The Board finds that the medical evidence of record demonstrates that the Veteran's current liver disability is attributable to his military service. Thereby, service connection for a liver disability is warranted. Memory and Cognitive Disability The Veteran has a current diagnosis of hepatic encephalopathy, which is manifested by memory impairment and cognitive deficits. In April 2012, the Veteran underwent a VA examination. The examination report stated that the neuropsychologist opined that the Veteran's memory and cognitive deficits are at least as likely as not caused by or a result of an acquired brain injury secondary to liver failure caused by exposure to contaminated water while at Camp Lejeune. The examination report stated that the Veteran's cognitive impairments were not consistent with substance abuse, alcohol in particular, or any other psychiatric diagnosis. Following this, in August 2012, an addendum opinion was obtained stating that the Veteran's cirrhosis of the liver was in fact caused by chronic alcohol abuse and therefore, the Veteran's accompanying memory and cognitive defects are more likely than not caused by chronic alcohol abuse as well. However, as discussed above, the Board finds this opinion to be of little probative value as it relies on inaccurate facts. At the Veteran's December 2014 VA Disability Benefits Questionnaire, the examiner stated that the Veteran's hepatic encephalopathy is due to his liver failure. Additionally, the examiner stated that the Veteran has liver failure which is "probably due to toxic exposure." As discussed above, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service connected disease or injury, or for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, the Board has granted service connection for the Veteran's liver disability. The evidence of record demonstrates that the Veteran's memory and cognitive disability (hepatic encephalopathy) is proximately due to his liver disability. Thereby, service connected for a memory and cognitive disability, secondary to the Veteran's liver disability, is warranted. Neuropathy in the Bilateral Upper and Lower Extremities In April 2012, the Veteran underwent a VA examination regarding the etiology of his peripheral neuropathy in his bilateral upper and lower extremities. The examination report stated that it is more likely than not that the Veteran's exposure to neomycin, for the treatment of his liver disease and hepatic encephalopathy, caused his peripheral neuropathy condition. The examiner stated that once the neomycin was stopped and changed to a different medication, the Veteran's peripheral neuropathy improved. Additionally, the examiner noted that neomycin is known for neurotoxicity. In October 2014, the Veteran underwent a VA neuropathy disability benefits questionnaire. However, this report does not discuss the etiology of the Veteran's neuropathy in his bilateral upper and lower extremities. As discussed above, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service connected disease or injury, or for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, the Board has granted service connection for the Veteran's liver disability above. The Evidence of record demonstrates that the Veteran's neuropathy in his bilateral upper and lower extremities is proximately due to his liver disability. Therefore, service connection for neuropathy of the bilateral upper and lower extremities is warranted on a secondary basis. ORDER Service connection for a liver disability is granted. Service connection for a memory and cognitive disability is granted. Service connection for neuropathy of the bilateral upper extremities is granted. Service connection for neuropathy of the bilateral lower extremities is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In September 2014, the Veteran underwent a VA male reproductive organ conditions disability benefits questionnaire. This report states that the Veteran was diagnosed with erectile dysfunction in July 2010. The report notes that the Veteran had an onset of this disability after initiating "BP" medication. However, the report does not opine as to the etiology of the Veteran's erectile dysfunction. Therefore, the Board finds that remand is required in order to obtain an examination with an opinion addressing the nature and etiology of any diagnosed erectile dysfunction to include as due to exposure to contaminated water at Camp Lejeune or secondary to his service connected disabilities granted above. Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 2. Once the above development has been completed, schedule a VA examination to determine the etiology of the Veteran's erectile dysfunction. The claims file, to include a copy of this remand, must be made available to the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. After reviewing the Veteran's claims file, and with consideration of the Veteran's lay statements, a qualified medical professional is asked to address the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was incurred in or other causally related to service, to include exposure to contaminated water at Camp Lejeune? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was caused by his service connected liver disability? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was permanently worsened (aggravated) by his service connected liver disability? d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was caused by his service connected cognitive and memory disability? e) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was permanently worsened (aggravated) by his service connected cognitive and memory disability? f) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was caused by his service connected neuropathy in the bilateral upper or lower extremities? g) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was permanently worsened (aggravated) by his service connected neuropathy in the bilateral upper or lower extremities? For purposes of these opinions, the examiner should assume the Veteran is a credible historian. Additionally, the Board concedes that the Veteran has been exposed to contaminated water while stationed at Camp Lejeune. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the evidence of record. 4. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary. 5. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs