Citation Nr: 20003253 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-38 795A DATE: January 14, 2020 ORDER Entitlement to service connection for a liver disability is denied. REMANDED Entitlement to service connection for anemia is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran served on active duty at Camp Lejeune and is presumed to have been exposed to contaminated drinking water. 2. The preponderance of the evidence is against a finding that the Veteran’s liver disability began during active service or is otherwise related to an in-service event, injury, or disease, to include as due to exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for liver disability have not been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1986 to October 1987. He has additional service in active duty for training in the United States Marine Corp from September 1979 to February 1980, and in the United States Army from February 1985 to June 1985. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As part of the appeal, the Veteran requested a Board hearing. The hearing was scheduled for March 11, 2019 and the Veteran was given notice. See February 2019 Correspondence. The Veteran failed to appear. Accordingly, appellate review will proceed without a hearing. 38 C.F.R. § 20.704(d). The Board notes that in an August 22, 2016 statement the Veteran’s attorney informed VA that he was withdrawing as the Veteran’s representative. See August 2016 Power of Attorney. VA regulations provide that, after the Agency of Original Jurisdiction has certified an appeal to the Board, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. 38 C.F.R. § 20.6(a)(2). In the instant case, the Veteran’s attorney has not presented good cause for his withdrawal and, therefore, for the purpose of the Veteran’s instant appeal, he remains recognized as the Veteran’s representative. The Board also notes that claims of entitlement to service connection for a back disability and anemia were both denied in prior final decisions. However, as new service records were associated with the claims file following the final decisions, the issues are being characterized on appeal as original claims. Service connection for a liver disability The Veteran contends that he has a liver disability that was caused by his active service. In the alternative, the Veteran argues that he has a liver disability that was caused by exposure to contaminated water at Camp Lejeune. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as cirrhosis of the liver. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, VA has established certain rules and presumptions for chronic diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. The eight specified diseases are: kidney cancer; liver cancer; Non-Hodgkin’s lymphoma; adult leukemia; multiple myeloma; Parkinson’s disease; aplastic anemia and other myelodysplastic syndromes; and, bladder cancer. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The Veteran’s medical and personnel records confirm service at Camp Lejeune, as well as a February 2011 Camp Lejeune Water registry; thus, exposure to contaminated drinking water at Camp Lejeune is conceded. 38 C.F.R. § 3.307. Notwithstanding the foregoing, just because service connection may be granted for a disease on a presumptive basis under certain regulations, does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). The Veteran has a current liver disability. For example, at his September 2012 VA examination he was diagnosed with cirrhosis of the liver. Additionally, a September 2015 private treatment found that the Veteran had Hepatitis B. Thus, the remaining question is whether the current liver disability is related to service. As noted above, Veteran’s service in Camp Lejeune has been conceded. Further, liver cancer is one of the diseases included under 38 C.F.R. § 3.309(f). The Veteran’s diagnosed cirrhosis of the liver and Hepatitis B is not a disease listed under 38 C.F.R. § 3.309(f). As explained below, the Board reviewed the evidence of record as a whole and finds that the preponderance of the affirmative evidence to the contrary warrants a finding against the Veteran’s service connection claim for a liver disability. Service treatment records show no complaints, diagnosis, or treatment related to a liver disability. During the June 1987 separation examination, clinical evaluation of the Veteran was normal. In a corresponding report of medical history, the Veteran specifically denied having had liver trouble. A liver disability is not shown by medical evidence until approximately 2001, many years after the Veteran’s separation from service. See September 2012 VA Examination Report. Regarding onset of symptoms related to a liver disability, post-service the Veteran reported that while working as a paramedic in 1992, he sustained a needle stick from a patient who was positive for Hepatitis B. Id. The Veteran presented for a VA examination in September 2012, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The VA examiner was asked to address the relationship between the Veteran’s liver disability and exposure to contaminated water at Camp Lejeune. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that by history, in 1992, the Veteran sustained a needle stick from a patient with positive Hepatitis B, this was while he was working as a paramedic. Further, the examiner noted that the Veteran was diagnosed with Hepatitis B in 2001 while attempting to donate blood. Upon reviewing the claims file, the examiner noted that he was unable to find any treatments while the Veteran was on active duty for disease processes during the Veteran’s time residing at Camp Lejeune pertaining to Hepatitis B nor Cirrhosis of the Liver. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. In January 2013, the claims file was also forwarded to a subject matter expert for review. That examiner also found that it was less likely than not that the claimed disability was related to the Veteran’s in-service exposure to contaminated water. The examiner reviewed related studies and found nothing relating such exposure to liver cysts, liver damage, or Hepatitis C. There is no other medical opinion in the record that establishes a probable medical nexus between the development of a liver disability and the chemicals to which the Veteran was exposed while serving at Camp Lejeune. The Board finds that the most probative evidence is against the Veteran’s claim that his liver disability is due to exposure to contaminated water at Camp Lejeune. The Board also considers whether the Veteran’s liver disability may warrant presumptive service connection due to continuity of symptomology since service, as cirrhosis of the liver is one of the chronic diseases listed under 3.309(a). As noted above, cirrhosis of the liver is not shown to have been present during service or in the first year after separation of service, and as continuity of symptomatology leading to a diagnosis of a liver disability is not shown, in-service incurrence of cirrhosis of the liver cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). The Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. The available medical opinions of record are to the effect that there is no relationship between his current liver disability and his active service, to include exposure to contaminated water at Camp Lejeune, and the Board finds the medical opinions more probative than the Veteran’s lay statements, as the opinions were offered by a medical professional after examination of the Veteran and consideration of the history of the disability and is supported by a clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran’s liver disability is related to active service, to include as due to exposure to contaminated water at Camp Lejeune. Thus, the claim for service connection must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Service connection for anemia is remanded. The Veteran contends that he has anemia that was caused by his active service. In the alternative, the Veteran argues that he has anemia that was caused by exposure to contaminated water at Camp Lejeune. In a November 2009 private treatment record, the Veteran was seen by a physician, and assessment indicated anemia and an anemia panel was ordered. However, remand is necessary for clarification of any disability related to anemia. As noted above, Veteran’s service in Camp Lejeune has been conceded, and anemia is one of the diseases listed under 38 C.F.R. § 3.309(f). Although the Veteran’s service at Camp Lejeune is conceded, a review of the evidence indicates a need to address whether the Veteran has an anemia disability, and a medical examination is warranted to address whether the Veteran’s complaints of anemia is related to his active service, to include exposure to contaminated water at Camp Lejeune. 2. Service connection for a back disability is remanded. The Veteran contends that he has a back disability that was caused by his active service. In the alternative, the Veteran argues that he has a back disability that was caused by exposure to contaminated water at Camp Lejeune. The Veteran has a current back disability. For example, in a March 2011 private treatment record, he was diagnosed with low back pain. In the July 2011 private treatment x-ray findings, there was indication that the Veteran has degenerative disc disease and compression fracture L4. See also September 2015 Private Treatment Record. In a May 1987 service treatment record, the Veteran complained of lower back pain and difficulty in standing straight. The Veteran also reported minor discomfort in bending or adjusting due to injury while lifting weights. The Board cannot make a fully-informed decision on the issue of the back disability because a VA examination has not been conducted to address whether the Veteran’s continuing back complaints are related to service. The Board finds that a VA examination is necessary prior to deciding the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current anemia disability onset during service or is otherwise related to an in-service injury, event, or disease. The claims file should be reviewed by the examiner. All necessary tests should be conducted, and the results reported. The examiner should also address whether any current anemia disability is at least as likely as not (1) began during active service, (2) manifested within presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should also address whether any current anemia disability is at least as likely as not related to contaminants in the water during service at Camp Lejeune. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the back onset during service or is otherwise related to an in-service injury, event, or disease, to include the May 1987 complaints of lower back pain due to weight lifting. The claims file should be reviewed by the examiner. All necessary tests should be conducted, and the results reported. The examiner should also address whether any current disability of the back is at least as likely as not (1) began during active service, (2) manifested within presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should also address whether any current disability of the back is at least as likely as not related to contaminants in the water during service at Camp Lejeune. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.