Citation Nr: 18125577 Decision Date: 08/13/18 Archive Date: 08/10/18 DOCKET NO. 15-04 051A DATE: August 13, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for Hepatitis C is denied. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder is denied. REMANDED Entitlement to service connection for a bilateral foot disability, to include bilateral pes planus, is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss disability began during active service. 2. Hepatitis C was not manifest in service and is not otherwise attributable to service. 3. An acquired psychiatric disorder was not manifest in service and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. Service connection for Hepatitis C is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). 3. Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps as a legal clerk and court reporter from July 1972 to May 1974. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). There is a one-year presumption for psychoses. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board acknowledges the Veteran’s service at Camp Lejeune and recognizes that effective from March 14, 2017, 38 C.F.R. § 3.307(a)(7) affords presumptive service connection for certain diseases due to exposure to contaminated water at Camp Lejeune between August 1, 1953, and December 31, 1987. However, none of the Veteran’s claimed or diagnosed disabilities fall under the presumptive provisions of 38 C.F.R. § 3.307(a)(7). As such, no further consideration of the above presumptive provisions is warranted. Entitlement to service connection still may be warranted if the facts demonstrate that the disabilities were related to exposure to contaminated water at Camp Lejeune or other circumstances of service. 1. Entitlement to service connection for a bilateral hearing loss disability Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2018). The Veteran’s medical examination at the time of his entrance into service is not of record. As such, the Veteran will be presumed to have entered service in sound condition with respect to any hearing-related disability. 38 U.S.C. §§ 1111 (2012); see also Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). As noted, however, the presumption can be rebutted by clear and unmistakable evidence. In this case, the evidence of record fails to clearly and unmistakably establish that the Veteran’s hearing loss disability documented in service preexisted his service. In that regard, the Veteran noted in a Report of Medical History at entrance into service that he had a history of hearing loss, but no further notation regarding such a problem (including a formal diagnosis by a medical professional or audiogram results from that time) is of record. A December 1973 service treatment record indicated that evidence of preservice severe acoustic trauma “was apparently present on enlistment.” An October 1973 service treatment record stated that high frequency hearing loss was shown during an enlistment physical examination. In October 2011, a VA audiologist considered the foregoing evidence and after examination of the Veteran concluded that she was unable to determine that there was clear and unmistakable evidence of a hearing loss disability that preexisted service. The Board agrees. As an initial matter, the Board notes that the presumption of soundness on entrance cannot be overcome simply based on the representations of the Veteran of a vague past history during the entrance examination or thereafter. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran’s self-report that he had previously suffered from “depression or excessive worry” prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C. § 1111). As such, the Veteran’s representations of a history of hearing loss made at entrance are insufficient to establish a preexisting hearing loss disability. The above service treatment records appear somewhat equivocal about the existence of a preexisting hearing loss disability, as one record noted only that there “apparently” was evidence of a preexisting hearing loss disability. In light of the foregoing, the Board finds insufficient evidence to overcome the presumption of soundness at entrance with respect to a preexisting hearing loss disability. Thus, the Veteran is presumed to have entered service in sound condition. The service treatment records include multiple audiograms documenting a hearing loss disability for VA purposes and there is lay evidence of worsening hearing acuity in service, with treatment beginning in October 1973 and documentation of a hearing loss disability for VA purposes from that time. In addition, during his February 2018 Board hearing, the Veteran stated that a VA treating physician told him that there was a “very high probability” that the Veteran’s in-service work as a court reporter caused his hearing loss. Thus, there is evidence of an in-service hearing loss disability and entitlement to service connection is warranted. 2. Entitlement to service connection for Hepatitis C The Veteran contends that his Hepatitis C is due to air gun inoculations during service and/or the result of being scraped with a razor along with multiple other service members by a platoon sergeant. Service treatment records document single vaccinations for smallpox, cholera, influenza, meningitis, adenovirus, and typhoid, as well as two immunizations for polio and three immunizations for tetanus and diptheria. The service treatment records do not include complaints or diagnoses of Hepatitis C during service and the Veteran does not contend otherwise. The Veteran was afforded a VA examination in October 2011. There was a diagnosis of hepatitis C from 2004. Following examination, the examiner concluded that she could not provide an opinion as to whether the Hepatitis C was related to either air gun inoculations or to a drill instructor scraping the face of several service members with the same razor without resorting to speculation. The rationale noted that according to the Centers for Disease Control (CDC), prevalence of Hepatitis C transmissions were 60 percent due to intravenous drug use, 10 percent due to transfusions, 15 percent due to sexual contact, 5 percent due to other causes, and 10 percent was unknown. The Veteran’s sole in-service reported risk factors were air gun vaccines and sharing razors, which would fall under the 5 percent category of “Other” according to the CDC statistics. On review of the record, the Veteran also had a history of intravenous drug use in 1971 and 1972. His sexual history during service was unknown. The Veteran denied in-service intravenous drug use at the time of the examination, although the examiner indicated that the reliability of the Veteran as a witness was equivocal as he presented with an extremely angry affect directed at VA. In his January 2013 notice of disagreement, the Veteran contended that he had gotten Hepatitis C from either air gun injections for inoculations or from a drill instructor scraping the faces of many recruits to encourage them to be clean shaven for inspection. VA treatment records document prior substance abuse, including LSD, cannabis, and amphetamines. A February 2017 private record indicated that the Veteran had hepatitis with onset 40 years previously. The condition currently was stable. During his February 2018 Board hearing, the Veteran indicated that his entire platoon of 81 all received air gun inoculations at the same time without cleaning between service members. In addition, at a later time his platoon sergeant used a dry razor on multiple members of the platoon with beard stubble and later all of the faces bled. The record contains some suggestion that the Hepatitis C may have been cured with the use of Harvoni, but a confirmed test result is not of record. As it is clear that the Veteran had the disability for some period on appeal, the Board will consider the Veteran to have a current disability for the purposes of this decision. Thus, the Veteran has or had Hepatitis C during the appellate time period. The crucial question, therefore, is whether this disability was incurred in or is otherwise related to his service. The Board concludes that it was not. In reaching that conclusion, the Board finds the October 2011 VA examination report of significant probative value. The examiner considered the Veteran’s potential in-service exposure to Hepatitis C and detailed the most likely causes of contracting Hepatitis C in the general population. The Veteran’s contentions that it was due to air gun inoculations or being one of multiple individuals scraped with the same razor would fall into the category that encompassed only 5 percent of all cases of infection. The Veteran denied in-service use of intravenous drugs or other factors that could account for his contracting Hepatitis C in service. The examiner explained in detail why she could not reach a definitive opinion as to the etiology of the Hepatitis C based on the evidence of record. The sole evidence supporting the Veteran’s claim of contracting Hepatitis C while in service is his assertions. In that regard, he certainly can attest to factual matters of which he has first-hand knowledge, such as receiving inoculations with an air gun and being one of multiple service members scraped by the same razor, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran’s lack of demonstrated medical expertise, the overall low probability of contracting Hepatitis C by the means claimed by the Veteran as opposed to via other means, and the complexity of linking the use of air gun inoculations and/or being one of several individuals scraped by a razor and the contracture of Hepatitis C, the Board concludes that in this case his statements regarding any such link between the in-service experiences and contracting Hepatitis C to be of no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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). In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 3. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder The Veteran contends that he has a current acquired psychiatric disorder due to contaminated drinking water at Camp Lejeune where he was stationed during his active service. In a March 1972 Report of Medical History at entrance into service, the Veteran reported a history of frequent trouble sleeping, but denied depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. The service treatment records include a March 1974 record wherein the Veteran requested a hardship transfer to care for his mother, who was an alcoholic and had experienced recent mood and attitude changes. The Veteran’s step-father had said that he was leaving and the Veteran’s brother lived close to their mother but helped out only occasionally. The Veteran was noted to have done well in service and had no history of disciplinary problems. The Veteran reported that he was tired of the Marine Corps and its rules and other personnel. The Veteran was noted to be anxious, but alert and fully oriented. He presented as one of the most mature and intelligent enlisted man the treatment professional had seen. There was no evidence of psychosis, neurosis, or personality disorder. The assessment was situational anxiety with no psychiatric disease. The recommendation was that a hardship transfer would help relieve some of the Veteran’s anxiety. In December 1999, the Veteran reported a long history of anxiety symptoms and had been told that he had a panic disorder. At that time, he was concerned about stress causing physical disorder related to him and his wife having opened a restaurant recently. There were physical and financial stressors, although the business had been quite successful. The impression was chronic anxiety with depression. In March 2003, the Veteran was noted to have no significant past medical history and to present with multiple social stressors, including domestic, business, and personal difficulties that had brought the Veteran to a state seeking a safe place at VA. He indicated that he needed someone with whom he could talk. In September 2003, the Veteran sought treatment for his mental health problems. At that time, he reported prior treatment for mental health symptoms in approximately 2000, as well as the Spring / Summer of 2003. The Veteran sought treatment for intrusive thoughts due to the failure of a restaurant that he had opened with his wife in the late 1990s and run for 3 years. He also believed that his wife was monitoring his actions, although he had no rational basis for the belief other than that the couple were going through a divorce. The Veteran was noted to have had an onset of psychiatric symptoms in the past year, associated with multiple life stressors. During an August 2003 mental status examination for Social Security Administration (SSA) benefits purposes, the Veteran discussed his time in service, but did not note any problems related to that service. In an October 2003 SSA examination, the Veteran reported that his mental health difficulties stemmed from having lost everything and that he was going through a divorce. In January 2004, the Veteran noted mental health problems due to a painful and bitter divorce. Other VA treatment records also associated his mental health symptoms with a failed business and his divorce and made no mention of any problems associated with his service. The Veteran was afforded a VA examination in October 2011. The examiner noted a diagnosis of mood disorder, not otherwise specified. Following examination, the examiner concluded that the mood disorder was less likely than not incurred in or caused by service. The rationale noted that the Veteran’s service treatment records indicated that he was first seen for mental health problems in March 1974 due to situational anxiety with no psychiatric disease noted at that time. The Veteran’s stressor at that time was related to his family. Specifically, his mother who was having alcohol-related stressors including the threat of abandonment by his stepfather and lack of support from his brother. The Veteran was seeking a humanitarian transfer in order to help his mother. Again, the examiner stressed that the Veteran’s situational reaction in service was not attributed to a mental disorder at that time and was a transient reaction that did not progress into a chronic condition. Moreover, the VA psychologist concluded that the in-service situational reaction was 37 years previously and unrelated to the current mood disorder. In his January 2013 notice of disagreement, the Veteran contended that he had joined the Marines at a time when he was about to be drafted and sent to Vietnam. The Veteran suggested that the Report of Medical History he completed prior to entry into service should have rendered him ineligible for service. The Veteran stated that he had filled out the form in that manner precisely so that he would fail the physical because he did not want to go to Vietnam. He felt like his 2 years of service felt like 10 years. The Veteran wrote, “Was the service mentally stressing on me? Everyday I had to tell myself that I could stay one more day, just stay one more day. So yes, I DISAGREE WITH YOUR DECISION TO DENY M[Y] CLAIMS. I AM NEARLY CRAZY EVERY DAY OF MY LIFE NOW.” A November 2016 MRI of the brain showed age-appropriate atrophy with no evidence of pathologic parenchymal or dural enhancement. The Veteran’s treatment records also include diagnoses of bipolar affective disorder, unspecified; adjustment disorder with mixed anxiety and depressed mood; major depressive disorder; alcohol abuse; and anxiolytic (Benzodiazepine) dependence. During his February 2018 Board hearing, the Veteran set forth his belief that his psychiatric problems were the result of contaminated water in Camp Lejeune. His belief was based on the onset of his mental health symptoms in service, as well as other service members who “were just not themselves anymore” after a period of time in service at Camp Lejeune. One of his friends from service had committed suicide after separation. The Veteran also submitted information from the National Institute of Health that attributed certain neurobehavioral difficulties to the contaminated water at Camp Lejeune. In support of his claim, the Veteran submitted a printout of a web search for “neurobehavioral effects camp lejeune” that returned several results. The Veteran did not provide any information from the specific link other than the blurbs included on the search result page. The Veteran also submitted a May 2018 record from a private neuropsychologist that noted the Veteran’s concerns about possible exposure to contaminate water at Camp Lejeune and is effects on his mental health. The private psychologist indicated that the Veteran had presented some documents that appeared to support his claim with respect to contaminated water being onsite at Camp Lejeune. The psychologist’s diagnostic impressions were subjective complaints of cognitive difficulties, but objective examination results were distorted to the point that he could not rely on them regarding the Veteran’s cognitive status. Test results had shown variable or suboptimal/poor effort that could have been due to deliberate poor effort or to other factors, such as fatigue. There appeared to be a mood disorder, with elements of depression, anxiety, and possibly PTSD. Thus, the Veteran has multiple acquired psychiatric disorders diagnosed during the appellate time period. The crucial question, therefore, is whether such disabilities were incurred in or are otherwise related to his service. The Board concludes that they were not. In reaching that conclusion, the Board finds the October 2011 VA examination report of significant probative value. The examiner considered the Veteran’s in-service and post-service complaints and reports and concluded that his in-service problems did not constitute a psychiatric condition, as evidenced by the findings at the time and the other evidence of record. Moreover, it had been multiple decades between the Veteran’s service and his diagnosed mental health disorder and that the depressive disorder was unrelated to service. Such findings by the October 2011 VA examiner are consistent with the findings of multiple other private and VA medical treatment professionals. These individuals consistently have attributed the Veteran’s mental health problems to post-service issues, including financial stress and his second divorce. The Board has considered the Veteran’s contentions that his mental health problems constitute a neurobehavioral disorder due to drinking contaminated water at Camp Lejeune during service. In 2008, the National Academy of Sciences’ National Research Council (NRC) and the Agency for Toxic Substances and Disease Registry (ATSDR) undertook a study to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting report, the NRC found limited/suggestive evidence of an association between neurobehavioral effects and the contaminants in the water supply in Camp Lejeune. While the Board acknowledges the possibility that contaminated water can cause neurobehavioral dysfunction, the medical evidence has clearly and consistently attributed the Veteran’s mental health and related symptoms to psychiatric disorders such as depressive disorder and/or bipolar disorder. The medical professionals have consistently linked his symptoms to stressors such as poor appetite, poor sleep, financial difficulties, dissatisfaction with his living arrangements, a dog attack, rather than to neurobehavioral dysfunction. To the extent that the Veteran has neurobehavioral problems, they have been linked to another overarching disability and not to contaminated water. The May 2018 private neuropsychologist’s assessment was the closest any medical professional has come to finding a specific neurobehavioral disorder, but he could not reach such a conclusion because testing results were inconsistent and suggestive of deliberate poor effort or other factors. Thus, the medical evidence fails to establish the existence of a separate and distinct neurobehavioral disorder and the Veteran’s diagnosed acquired psychiatric disorders have not been linked by medical professionals in any way to the Veteran’s service, including contaminated drinking water at Camp Lejeune. The treatise evidence submitted by the Veteran does not directly suggest a link between any of the Veteran’s diagnosed acquired psychiatric disorders and exposure to contaminated water at Camp Lejeune. As to the Veteran’s contentions that he has a current psychiatric disorder due to contaminated water at Camp Lejeune, he certainly can attest to factual matters of which he has first-hand knowledge, such as drinking and otherwise being exposed to water while serving at Camp Lejeune and his current mental health symptoms, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran’s lack of demonstrated medical expertise, the post-service occupational and societal stressors, and the complexity of linking particular psychiatric symptoms to a diagnosed psychiatric disorder and linking that disorder to incidents occurring in service, however, the Board concludes that in this case his statements regarding any such link between the in-service experiences and a current acquired psychiatric disorder are significantly less probative than the conclusions of the medical professionals of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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). The Board finds such conclusions by the Veteran particularly problematic in the absence of a continuity of symptoms from service and the complexity of linking mental health symptoms to contaminated water to which the Veteran was exposed many decades previously. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule set forth in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disability, to include bilateral pes planus, is remanded. The Veteran was afforded a VA examination for the bilateral foot claim in August 2012. The examiner diagnosed bilateral pes planus and indicated that the disability existed prior to service based on the medical records. Following an examination, the examiner concluded that the Veteran’s bilateral foot disability was not caused by, a result of or aggravated by an in-service event. The rationale noted that the opinion was based on review of the service treatment records and medical literature. Specifically, the examiner stated that the Veteran’s entrance examination (dated March 29, 1972) noted foot trouble and bilateral flat feet. As such, the Veteran’s condition existed prior to service. In addition, the examiner indicated that separation examination made no mention of a bilateral foot disability. The Board acknowledges that the Veteran’s May 1974 Report of Medical Examination showed no foot disability, to include pes planus. That said, the examiner’s opinion appears to have been based on an inadequate factual premise and failed to discuss certain potentially relevant evidence. Specifically, the examiner indicated that the examination report at entrance indicated a history of foot trouble and flat feet; however, no Report of Medical Examination from entrance is of record. Instead, a Report of Medical History completed by the Veteran is of record, which notes foot trouble and the Veteran’s belief that his foot problems might be due to flat feet / pes planus. Again, there is no medical examination of record. In addition, a September 1972 service treatment record indicated that the Veteran was experiencing right knee pain for the past week, which he attributed to having been favoring his right foot while walking. He had been fitted with arch supports by podiatry. The record included a diagnosis of bilateral pes planus with good range of motion. The August 2012 examination report failed to discuss the foregoing record and its potential significance. Based on the foregoing, the Board concludes that a remand for a new examination is warranted. Given the absence of a medical examination at entrance into service, the Veteran will be presumed to have entered service in sound condition with respect to his feet in the absence of clear and unmistakable evidence to the contrary. In that regard, the Veteran’s suggestion at entrance into service that he had flat feet is insufficient, in and of itself, to rebut the presumption of soundness. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran’s self-report that he had previously suffered from “depression or excessive worry” prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C. § 1111). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral foot claim. Following a complete review of the electronic claims file, interview of the Veteran, and physical examination (with any indicated diagnostic testing), the examining professional is requested to provide an opinion on the following questions: (a) Is it clear and unmistakable (i.e. undebatable) that any bilateral foot disability diagnosed (including pes planus) pre-existed active service? In that regard, the examiner is invited to consider the absence of the Report of Medical Examination prior to entrance into service, the Report of Medical History at entrance in which the Veteran reported a history of foot trouble and the possibility of flat feet, the September 1972 in-service diagnosis of bilateral pes planus and prescription of arch supports, and the normal findings as to the feet in the May 1974 Report of Medical Examination prior to separation from service. Please state upon what facts and medical principles the opinion is based. (b) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a bilateral foot disability WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress of the disease. Please state upon what facts and medical principles the opinion is based. To reiterate, a complete rationale for each opinion offered must be included in the report, and an explanation of the medical principles involved would be of considerable assistance to the Board. 2. After the above is complete and undertaking any additional evidence warranted based on the new evidence received since the last AOJ adjudication, readjudicate the Veteran’s claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel