Citation Nr: 20004498 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-53 530A DATE: January 21, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disability to include asthma and shortness of breath. New and material evidence has been received to reopen the claim of entitlement to service connection for a central nervous system to include headaches and tremors disability. Entitlement to service connection for a respiratory to include asthma and shortness of breath is granted. Entitlement to service connection for a central nervous system to include headaches and tremors disability is granted. FINDINGS OF FACT 1. In an April 2009 rating decision, the RO denied the Veteran’s claims for service connection for a respiratory disability and central nervous system damage to include tremors. The Veteran did not timely perfect an appeal of this determination, and no new and material evidence was received within one year of notice of this decision. 2. Evidence received since the April 2009 rating decision including a February 2017 private treatment note that stated that the Veteran’s exposure to contaminated water was more likely than not caused his respiratory disability is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a respiratory disability to include asthma and shortness of breath. 3. Evidence received since the April 2009 rating decision including a November 2012 private treatment note that stated that it was at least as likely as not that the Veteran’s exposure to contaminated water resulted in his tremor and headache disability is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a central nervous system to include headaches and tremors disability. 4. The Veteran’s respiratory disability to include asthma and shortness of breath is etiologically related to exposure to contaminated water at Camp Lejeune. 5. The Veteran’s central nervous system disability to include headaches and tremors is etiologically related to exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. New and material evidence has been received since the April 2009 denial, and the claim of entitlement to service connection for a respiratory disability to include asthma and shortness of breath is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 2. New and material evidence has been received since the April 2009 denial, and the claim of entitlement to service connection for a central nervous system to include headaches and tremors disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for service connection for a respiratory disability to include asthma and shortness of breath as due to exposure to contaminated water have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 4. [Grant] The criteria for service connection for a central nervous system disability to include headaches and tremors as due to exposure to contaminated water have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1979 to April 1982 and from February 1991 to March 1991. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. The Board notes that in a December 2019 correspondence the Veteran indicated that he would not be presenting any additional evidence regarding his service connection claim for headaches and tremors and was withdrawing this claim. However, subsequent language in this correspondence suggests that the Veteran desired consideration of additional submitted evidence related to this claim. As a result, the Board finds that the Veteran has not withdrawn his service connection for a central nervous system to include headaches and tremors disability and this issue will be addressed below. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307 (a)(7). If a Veteran served on Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (f). However, the absence of a disease from the presumptive list does not preclude a Veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may still be granted on a direct basis. The Veteran’s military personnel records confirm service of at least 30 days at Camp Lejeune between the period of August 1, 1953 and ending on December 31, 1987, and so exposure to contaminated drinking water is conceded. Here, the disabilities for which the Veteran seeks service connection as due to exposure to contaminated water at Camp Lejeune are not on the presumptive list, as he seeks service connection for a respiratory disability to include asthma and shortness of breath and a central nervous system to include headaches and tremors disability. Accordingly, the Board will consider whether entitlement to service connection for those disabilities can be granted on a direct basis. Factual Background and Analysis The Veteran’s service treatment records are negative for complaints or treatments related to a respiratory disability or a central nervous system to include headaches and tremors disability. In a November 2012 correspondence, a private physician who was certified in anatomic and clinical pathology with a special interest in chemical pathology, noted that the Veteran was amongst those exposed to the contaminated water at Camp Lejeune. The Veteran had reported that around 2003 he began experiencing chronic headaches, difficulty concentrating, depression, asthma and other medical ailments. The physician noted that trichloroethylene (TCE) and tetrachloroethylene (PCE) was known to produce a myriad of health effects that varied on exposure. The physician opined that the Veteran’s neurobehavioral disorders including his headaches were within the scope of health effects resulting from prior exposure to TCE and PCE and that it was at least as likely as not that these symptoms resulted from such exposure. In a February 2017 correspondence, a private physician noted that he had been following the Veteran in the pulmonary clinic since 2013. The Veteran did not have a history of childhood asthma or allergies but rather developed asthma in his 50s without any obvious trigger. The physician noted that the Veteran had been stationed at Camp Lejeune when there was a significant level of TCE and PCE. The Veteran had several ailments found to be linked to this exposure. The physician indicated that there was some literature supporting the immumodulating effect of TCE and PCE. The physician determined that the atypical presentation of the asthma (late onset with no previous family history or personal history of asthma or allergy, severe and frequent occurrence without obvious trigger requiring multiple courses of systemic steroid) as well as known significant exposure to these toxins (enough to cause other ailments) made it at least as likely as not that the TCE and PCE had contributed to the development of the Veteran’s current pulmonary issues. The Board additionally notes that the Veteran has submitted multiple internet articles which address the immunotoxic effects of TCE and PCE. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a respiratory disability to include asthma and shortness of breath and a central nervous system to include headaches and tremors disability is warranted. Initially, the Board notes that as there is a current diagnosis of asthma and a headaches and tremors disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Having reviewed the record, the Board finds there is at least an approximate balance of evidence as to whether the Veteran has a current respiratory disability and a central nervous system disability that are related to is service. The Board notes that the November 2012 private physician opined that it was at least as likely as not that the Veteran’s neurobehavioral disorders including his headaches resulted from his exposure to TCE and PCE while a private physician in February 2017 opined that it was at least as likely as not that the TCE and PCE had contributed to the development of the Veteran’s current pulmonary issues. Additionally, there is no competent contrary medical evidence of record that indicates that the Veteran’s current respiratory disability or central nervous system disability were not a result of his service to include as secondary to contaminated water exposure. Therefore, the positive medical opinions of the November 2012 and February 2017 private physicians provide the only competent medical opinions as to the relationship between the Veteran’s current respiratory disability to include asthma and shortness of breath and a current central nervous system to include headaches and tremors disability and his service in regards to his conceded contaminated water exposure at Camp Lejeune. In light of the fact that the Veteran had in-service contaminated water exposure at Camp Lejeune and that there are multiple detailed opinions of record explaining why the Veteran’s myelodysplastic syndrome-AML disability were related to his in-service exposure while deployed at Camp Lejeune, the Board finds that service connection for a respiratory disability to include asthma and shortness of breath and a central nervous system to include headaches and tremors disability is warranted. Additionally, a remand for VA examinations is not necessary because the evidence of record is sufficient to grant the Veteran’s claims, and a remand would only serve to unnecessarily delay final adjudication of the claim. Accordingly, the Board finds there is at least an approximate balance of evidence as to whether the Veteran has a current respiratory disability to include asthma and shortness of breath and a current central nervous system to include headaches and tremors disability that are related to is service. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, Counsel 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.