Citation Nr: 20002172 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 17-62 164 DATE: January 9, 2020 ORDER Service connection for esophageal cancer, to include as due to exposure to herbicide agents, is denied. Service connection for stomach cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Service connection for fine motor skill loss, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Service connection for fatigue, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Service connection for memory loss as a distinct and separate disability from service-connected posttraumatic stress disorder is denied. FINDINGS OF FACT 1. The Veteran does not have esophageal cancer that is related to his active duty service. 2. The Veteran does not have stomach cancer that is related to his active duty service. 3. The Veteran does not have fine motor skills loss that is related to his active duty service. 4. The Veteran does not have fatigue that is related to his active duty service. 5. The Veteran is currently in receipt of a disability rating for PTSD as manifested, in part, by memory loss. CONCLUSIONS OF LAW 1. The criteria to establish service connection for esophageal cancer, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria to establish service connection for stomach cancer, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria to establish service connection for loss of fine motor skills, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria to establish service connection for fatigue, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. A separate compensable disability rating for memory loss is precluded because it would constitute prohibited pyramiding of compensation. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.14, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1968 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Esophageal cancer, stomach cancer, fine motor skill loss, fatigue, and memory loss are not such diseases. Service connection may also 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. 38 C.F.R. § 3.307(a)(7). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to establish presumptive service connection for veterans described above who have been diagnosed with any of the following eight disabilities: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The record reflects the Veteran was stationed in the Republic of Vietnam from October 1969 to September 1970. The Veteran was also stationed at Camp Lejeune during active service from May to June 1968 and from June to October 1969. Therefore, the Veteran met the threshold duration of service during the applicable time period required under 38 C.F.R. § 3.307(a)(7)(iii). 1. Esophageal cancer The Veteran’s service treatment records are silent for complaints, treatment, or a diagnosis of esophageal cancer. Post-service evidence, to include VA treatment records and private medical records, are silent for a diagnosis or treatment of esophageal cancer. VA records demonstrate that the Veteran has a diagnosis of Barrett’s esophagus with no indication of linkage to service. A biopsy showed low-grade dysplasia. In April 2015, the Veteran was diagnosed with an esophageal nodule. In September 2015, the Veteran underwent ablation therapy. There is no evidence of a diagnosis of esophageal cancer. To the contrary, an October 2015 treatment notation demonstrates that the Veteran was informed that the “reason for pursuing ablation therapy was to halt [the] possible progression and . . . risk of developing cancer.” See VA Gastroenterology Treatment Records. In September 2019, the Veteran (through his representative) stated that he does not have a diagnosis of esophageal cancer. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., esophageal cancer. See 38 U.S.C. § 1110. The record does not include any such evidence. Treatment records associated with the record do not show a diagnosis of or treatment for esophageal cancer, and the Veteran has not identified any physician who diagnosed or treats him for such a disability. Accordingly, there is no valid claim of service connection for esophageal cancer. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, because there is no current disorder that could be related to an event, injury, or disease in service, the Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet.App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease); see also Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran’s conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). Accordingly, service connection for esophageal cancer is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. 2. Stomach cancer The Veteran’s service treatment records are silent for complaints, treatment, or a diagnosis of stomach cancer. Post-service evidence, to include VA treatment records and private medical records, are silent for a diagnosis or treatment of stomach cancer. In September 2019, the Veteran (through his representative) stated that he does not have a diagnosis of stomach cancer. The threshold requirement here is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., stomach cancer. See 38 U.S.C. § 1110. The record does not include any such evidence. Treatment records associated with the record do not show a diagnosis of or treatment for stomach cancer, and the Veteran has not identified any physician who diagnosed or treats him for such a disability. Accordingly, there is no valid claim of service connection for stomach cancer. Brammer, 3 Vet. App. 223 (1992). For the reasons that are stated previously, there is no need for the conduct of a VA medical examination. Accordingly, service connection for stomach cancer is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. 3. Fine motor skill loss The Veteran’s service treatment records are silent for complaints, treatment, or a diagnosis of the loss of motor skills. Post-service evidence, to include VA treatment records and private medical records, are silent for a diagnosis of or treatment for the loss of motor skills. In September 2019, the Veteran (through his representative) stated that he does not have a diagnosis of the loss of motor skills. The threshold requirement here is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., the loss of motor skills. See 38 U.S.C. § 1110. The record does not include any such evidence. The Veteran has not been diagnosed with or treated for the loss of motor skills, nor has he been diagnosed with a disability for which diminished motor skills is a symptom, and the Veteran has not identified any physician who diagnosed or treats him for such a disability. Although the Veteran is competent to report whether he has a symptom of diminished motor skills, he is not competent to diagnose himself with a disability for which diminished motor skills is a symptom. Accordingly, there is no valid claim of service connection for the loss of motor skills. Brammer, 3 Vet. App. 223 (1992). The Board also considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that to establish a disability, a symptom must amount to a functional impairment). The Board considered the Veteran’s contention regarding his loss of fine motor skills. However, the Veteran has not asserted any actual functional impairment that allegedly arises from his subjective diminishment of motor skills and, as noted above, the Veteran’s medical records do not reflect any functional impairment associated with his alleged loss of motor skills. Here, the medical evidence shows no such functional impairment related to the Veteran’s contention of the loss of fine motor skills. The Board finds the weight of the medical evidence goes against finding the Veteran has had any motor skills disability during the period on appeal, and thus service connection is not warranted on that basis. For the reasons that are stated previously, there is no need for the conduct of a VA medical examination. Accordingly, service connection for the loss of motor skills is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. 4. Fatigue The Veteran’s service treatment records are silent for complaints, treatment, or diagnosis of fatigue. Post-service evidence, to include VA treatment records and private medical records, are silent for a diagnosis or treatment of fatigue. In September 2019, the Veteran (through his representative) stated that he does not have a diagnosis of fatigue. The threshold requirement here is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., fatigue. See 38 U.S.C. § 1110. The record does not include any such evidence. The Veteran has not been diagnosed with or treated for fatigue, nor has he been diagnosed with a disability for which fatigue is a symptom, and the Veteran has not identified any physician who diagnosed or treats him for such a disability. Although the Veteran is competent to report whether he has a symptom of fatigue, he is not competent to diagnose himself with a disability for which fatigue is a symptom. Accordingly, there is no valid claim of service connection for fatigue. Brammer, 3 Vet. App. 223 (1992). The Board also considered Saunders. The Board considered the Veteran’s contention regarding his fatigue. However, the Veteran has not asserted any actual functional impairment that allegedly arises from his subjective fatigue and, as noted above, the Veteran’s medical records do not reflect any functional impairment associated with his alleged fatigue. Here, the medical evidence shows no such functional impairment related to the Veteran’s contention of fatigue. The Board finds the weight of the medical evidence goes against finding the Veteran has had fatigue during the period on appeal, and thus service connection is not warranted on that basis. For the reasons that are stated previously, there is no need for the conduct of a VA medical examination. Accordingly, service connection for fatigue is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. 5. Memory loss In September 2019, the Veteran (through his representative) stated that although he has memory loss, it is a listed symptom of his service-connected posttraumatic stress disorder (PTSD). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court of Appeals for Veterans Claims (Court) held that where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular Diagnostic Code, evaluation of that manifestation under another Diagnostic Code would not constitute pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Further, a manifestation of a disability has not been compensated by an assigned evaluation if the manifestation is “distinct and separate” from the manifestations that form the basis of the assigned evaluation. See Lyles, 29 Vet. App. at 118 (quoting Murray v. Shinseki, 24 Vet. App. 420, 423 (2011)). These two exceptions are not applicable here. In January 2017, the Veteran underwent a VA PTSD examination; the examiner opined that the Veteran had mild memory loss associated with his PTSD. In February 2017, VA assigned the Veteran a 70 percent disability rating for PTSD due, in part, to his mild memory loss. See February 2017 Rating Decision. As such, the Veteran’s symptom of memory loss has already been contemplated and evaluated. Because the Veteran’s PTSD as manifested, in part, by memory loss has been compensated under another diagnostic code, evaluating this manifestation under an additional diagnostic code would amount to pyramiding. 38 C.F.R. § 4.14; Lyles, 29 Vet. App. at 115. (Continued on the next page)   Accordingly, service connection for memory loss as a distinct and separate disability is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carolyn M. Colley The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.