Citation Nr: 19135813 Decision Date: 05/08/19 Archive Date: 05/08/19 DOCKET NO. 15-22 750A DATE: May 8, 2019 ORDER Entitlement to service connection for lipomas is denied. Entitlement to service connection for headaches is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for liver disease, to include cirrhosis of the liver, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, adjustment disorder, and a psychiatric disorder manifested by memory loss and concentration issues, as secondary to liver disease, cirrhosis, hepatitis C, lipomas, and headaches, and as due to exposure to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. The Veteran served at Camp Lejeune, North Carolina, at various time periods during his military service from April 1973 to April 1977; he is therefore presumed to have been exposed to contaminated water at Camp Lejeune. 2. The preponderance of the competent evidence is against a finding that the Veteran’s lipomas had an onset in service, or are otherwise related to service, to include his presumed exposure to contaminated water at Camp Lejeune. 3. The preponderance of the competent evidence is against a finding that the Veteran has a chronic headache disability that had an onset in service, or is otherwise related to service, to include his presumed exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection for lipomas, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for headaches, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active service form April 1973 to April 1977, during which time he was stationed at Camp Lejeune. In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. Because the Veteran has been treated for a variously diagnosed psychiatric disorder, the issue is characterized as set forth above. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). There is a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune during the period from August 1, 1953 through December 31, 1987. In order to qualify for presumptive service connection, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309(f), (i.e., adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the pertinent time period. 38 C.F.R. §§ 3.307, 3.309. Service personnel records confirm the Veteran was stationed, during his period of active service from April 1973 to April 1977, at U.S. Marine Corps Base at Camp Lejeune. Thus, his exposure to contaminated water is presumed. 1. Entitlement to service connection for lipomas, to include as due to exposure to contaminated water at Camp Lejeune. In August 2018, the Veteran testified regarding the claim for service connection for lipoma that a doctor had told him his “skin condition” was related to his Camp Lejeune service and that it was supposed to be written in his file that way. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include contaminated water at Camp LeJeune. The Board concludes that, while the most recent VA examination in April 2017 showed that the Veteran had no current lipomas and that the last ones were removed in 2014, the record shows he had lipomas at the time he filed the claim, thus he has a current disability. McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, his exposure to contaminated water in service has been established. The preponderance of the evidence, however, weighs against finding that the Veteran’s lipomas began during service or are otherwise related to service. Service treatment records (STRs) show treatment for skin rashes, but no report of finding of any lipoma. On March 1977 service separation physical examination, the Veteran’s skin and lymphatics were clinically evaluated as normal. After service, the Veteran’s VA treatment records show that in March 2011, he was noted to have lipomas on his neck and trunk. In October 2013 and February 2014, he had the lipomas surgically removed. Thus, it appears his lipomas were not diagnosed until several decades after his separation from service. In May 2011, a VA examiner indicated the Veteran’s lipoma was a totally non-disabling fatty tissue mass, and opined that the chemicals found in the Camp Lejeune water were not associated with subsequent lipoma formation. In January 2013, a VA examiner opined that the Veteran’s lipoma was not related to contaminated water at Camp Lejeune. For rationale, the examiner acknowledged that the etiology of lipomas was not well understood, but noted that lipomas were benign and usually found superficially in the subcutaneous tissue. The examiner further noted that lipomas were collections of mature fat cells enclosed by thin fibrous capsules, and that frequently one may have more than one lipoma or, occasionally, a genetic condition resulting in multiple lipomas. The examiner also noted that malignant transformation of a lipoma was rare. In January 2015, a VA examiner opined that the Veteran’s lipomas were not related to service, noting that his lipomas, a benign fatty skin condition, were diagnosed by biopsies in 2010, 2013, and 2014. The examiner also noted that review of the medical literature did not show an association between exposure to contaminated water at Camp Lejeune and the development of lipomas. Taken together, the VA examiners’ opinions establish that the Veteran’s lipomas are not related to an in-service injury, event, or disease, including exposure to contaminated water in Camp LeJeune. The examiners’ opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Despite the Veteran’s contention that his doctor has told him his skin condition is related to his service, this is not documented in his treatment records and he has not submitted any other competent medical evidence to the contrary. The Board acknowledges the Veteran’s contention that his lipomas are related to service. While his reports of symptoms are credible lay evidence, these statements are not considered competent or probative evidence of a causal nexus to service, because the Veteran is not competent, as a layperson, to provide an opinion or evidence as to matters involving medical etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). 2. Entitlement to service connection for headaches, to include as due to exposure to contaminated water at Camp Lejeune. The Veteran contends his headaches began in service and that he went to sick bay in service for migraine headaches. He also contends that his headaches are due to exposure to contaminated water at Camp Lejeune. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current disability of headaches, and the evidence shows that he was seen for headaches on several occasions in service and that his exposure to contaminated water at Camp Lejeune has been conceded, the preponderance of the evidence weighs against finding that the Veteran has a current headache disability that began during service or is otherwise related to an in-service injury, event, or disease. Records from the Social Security Administration (SSA) show that in April 2003, the Veteran suffered a fall at work from a roof, landing on his right side, and complained of headaches due to his neck condition. VA treatment records show that in May 2010, it was noted that the Veteran was being seen monthly for chronic headaches. While the Veteran is competent to report having experienced headaches since service, he is not competent to provide a diagnosis in this case, or determine that these symptoms were manifestations of a current headache disability that is related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). On a VA examination in December 2013, the examiner acknowledged the Veteran’s reports of headaches in service, but noted he did not have a diagnosed headache condition in service. The examiner observed that each of the reports of headaches in service was associated with either the flu or a sinus condition, and that there were no entries for complaints of a headache alone and no indication of a work-up for the headaches beyond those entries. The Veteran reported that a year earlier he was diagnosed with hypertension, and that the headaches resolved except once he was out of medication. The examiner opined that the Veteran’s claimed headaches were not incurred in or caused by service, and stated there was no indication he suffered a real or permanent injury from the headaches in service as they were related to the flu or a sinus condition, which resolved with treatment. In March 2015, a VA examiner opined that it was less likely as not that the Veteran’s headaches were incurred in or caused by service to include exposure to contaminated water at Camp Lejeune. The examiner noted that the Veteran had frequent headaches as described during an examination in May 2010 as well as during a VA examination in December 2013, but concluded that the medical literature did not show an association between headaches and exposure to contaminated water. The Board finds the VA examiners’ opinions to be probative, because they are are definitive, based on a review of the record, and are probative and persuasive on the issue of whether the Veteran has a current headache disability that may be related to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also notes that there is no competent medical evidence to the contrary. Full consideration has been given to the Veteran’s own assertions that he has headaches resulting from being hit in the head during active service. While his reports of headache symptoms are credible lay evidence, these statements are not considered competent or probative evidence of diagnosis or a causal nexus to service, because the Veteran is not competent, as a layperson, to provide an opinion or evidence as to matters involving medical diagnosis or etiology. Jandreau v. Nicholson, supra; Kahana v. Shinseki, supra. REASONS FOR REMAND 3. Entitlement to service connection for hepatitis C is remanded. The Veteran contends his hepatitis C is related to service. He initially contended his hepatitis C was due to exposure to blood on vehicles he cleaned while working as a mechanic in the motor pool in service, and also contended his hepatitis C was related to exposure to contaminated water at Camp Lejeune. However, at the hearing in August 2018, the Veteran clarified he contracted hepatitis C in service from getting a shot with an air gun during boot camp, and the needle was not clean. VA medical records show that the Veteran’s hepatitis C was diagnosed as early as 2010. He apparently began treatment for hepatitis C in July 2014; thus, he has a current disability. STRs show no report or finding of hepatitis C. On the Veteran’s enlistment examination in October 1972, no tattoos were noted, but on his separation exam it was noted that he had tattoos on his arms. In January 2011, the Veteran submitted a Hepatitis C Risk Factor Questionnaire, and the only risk factor identified was tattoos or body piercings. In March 2011, he submitted another such questionnaire and denied all risk factors. In light of the record, the “low threshold” necessary to establish entitlement to a VA medical examination, in connection with the claim of service connection for hepatitis C, has been satisfied. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because of the Veteran’s history of risk factors for hepatitis C, and his competent report of receiving air gun inoculations in service, a VA examination/opinion should be obtained regarding the likely etiology of his hepatitis C. 4. Entitlement to service connection for liver disease, to include cirrhosis of the liver, as secondary to hepatitis C, and as due to exposure to contaminated water at Camp Lejeune, is remanded. The Board notes that the issue of service connection for liver disease, to include cirrhosis of the liver, is inextricably intertwined with the claim for service connection for hepatitis C, as the Veteran has claimed that his liver disease, to include cirrhosis, is secondary to his hepatitis C, and there is competent medical evidence supporting his claim. Given that service connection for hepatitis C must necessarily be adjudicated first, the issue of service connection for liver disease, to include cirrhosis, will be returned to the Agency of Original Jurisdiction (AOJ) for further development as needed. 5. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, adjustment disorder, and a psychiatric disorder manifested by memory loss and concentration issues, as secondary to liver disease, cirrhosis of the liver, hepatitis C, lipomas, and headaches, and as due to exposure to contaminated water at Camp Lejeune. The Veteran essentially contends he has a psychiatric disorder, related to his various physical problems (for which is also seeking service connection). He alternatively contends he has a psychiatric disorder that is due to exposure to contaminated water at Camp Lejeune. He also contends this psychiatric disorder encompasses anxiety, depression, adjustment disorder, memory loss, and concentration issues. Records from the Social Security Administration show that in April 2003, the Veteran suffered a fall at work from a roof (15 feet), fell on his right side, and that he complained of experiencing anxiety since the accident as he were unable to do things as before. He also reported feeling depressed. The diagnosis was anxiety with depressed mood due to physical conditions from the accident in April 2003. VA treatment records show that in May 2011, the diagnoses included depression, rule out posttraumatic stress disorder (PTSD) due to childhood abuse. In May 2011, it was also noted that the Veteran had a history of depression most likely induced by methamphetamine. In May 2015, he complained of memory and concentration difficulties. He also reported PTSD problems, stating he had to “scrape the brains” of people off vehicles and saw accidents happen while people were in training. The diagnoses included unspecified depressive disorder and unspecified anxiety disorder. In June 2015, a PTSD screen was positive. In January 2016, he exhibited symptoms of sub-clinical PTSD. A problem list in October 2017 included mood disorder, PTSD, major depressive disorder, moderate, recurrent, and depressive disorder. On a VA examination in March 2015, the examiner opined that the Veteran’s memory loss and concentration difficulties were not related to service, to include exposure to contaminated water, and that he did not have a diagnosis of a neurocognitive disorder to include memory loss and concentration difficulties. In April 2017, the Veteran submitted a psychological evaluation dated in June 2016, from R.B., Ph.D, wherein it was noted he was referred to be assessed for PTSD at the Veteran Service Outreach Program (VSOP), and he “continues to address other psychological problems, major depression, and with those constellated features of PTSD”. It was noted that he participated in weekly PTSD group sessions at the GLA-VA Hospital and weekly individual therapy sessions. In the evaluation it was also noted that “[i]n keeping with the criteria set by the DSM-V, diagnosis his military related posttraumatic stress disorders AXIS I (PTSD, delayed, chronic… with secondary features of major depressions”). It was also noted that the Veteran has “declining physical conditions which exacerbates his military related PTSD”. The evaluation indicated that the Veteran’s identified stressors included prolonged exposure to the aftermath of war and being part of the 3rd Medical battalion which included cleaning “the carnage when equipment was sent from Vietnam and body parts were …. in the vehicles”. To date, the Veteran has not been provided a VA examination addressing whether he has a current psychiatric condition related to active service. In light of the foregoing and the record on appeal, a VA medical nexus opinion should be obtained. See McLendon v. Nicholson, supra. The matters are REMANDED for the following action: 1. With any assistance needed from the Veteran, obtain copies of any recent VA and/or private treatment for hepatitis C, or a psychiatric disorder, to include anxiety, depression, adjustment disorder, or a psychiatric disorder manifested by memory loss or concentration issues. This should specifically include obtaining complete treatment records from R.B., Ph.D. at the VSOP, as well records of the weekly PTSD group therapy and individual therapy at the “GLA-VA Hospital”. Negative replies should be requested. 2. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the probable etiology of the Veteran’s hepatitis C. A history of all of the Veteran’s potential risk factors of hepatitis C infection should be noted. The examiner should then provide an opinion as to whether it is at least as likely as not that the Veteran’s hepatitis C is related to service, to include the Veteran’s contention that he contracted hepatitis C disease through air gun inoculations he received during service. The examiner should explain the rationale for any opinion given, and if unable to provide any opinion without resort to speculation, this should be stated, and an explanation provided as to why this is so. 3. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and probable etiology of any current psychiatric disorder(s). Based upon the examination results and the review of the record, the examiner should identify all psychiatric disabilities currently present, or present during the pendency of this claim, and should opine as to whether any such psychiatric disability is related to service. The examiner should explain the rationale for any opinion given, and if unable to provide any opinion without resort to speculation, this should be stated, and an explanation provided as to why this is so. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Casula, Counsel