Citation Nr: 20006553 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 14-35 555A DATE: January 28, 2020 ORDER Service connection for pityriasis lichenoides chronica (PLC), to include as a result of exposure to contaminated water at Camp Lejeune, is denied. Service connection for a lumbar spine disorder, to include as a result of exposure to contaminated water at Camp Lejeune, is denied. 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 Veteran’s currently diagnosed PLC and lumbar spine disorders did not originate in service and are not otherwise related to service, to include exposure to contaminated water therein. CONCLUSIONS OF LAW 1. The criteria for service connection for PLC, to include as a result of exposure to contaminated water at Camp Lejeune are not met. 38 U.S.C. §§ 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(7), 3.309(f) (2018). 2. The criteria for service connection for a lumbar spine disorder, to include as a result of exposure to contaminated water at Camp Lejeune are not met. 38 U.S.C. §§ 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(f) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1977 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his request for a Board hearing in April 2019. Service Connection—Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2018) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Regarding the Veteran’s assertion that his alleged disorders are due to his in-service exposure to water contamination while he was stationed at Camp Lejeune, the Board notes that service connection may also be proven by presumption. 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) (2018). 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) (2018). The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(7)(ii). The Veteran’s claimed diseases are not subject to the presumption. PLC The evidence establishes that the Veteran was stationed at Camp Lejeune during a period of potential exposure. See DD Form 214. However, the Veteran’s skin disorder (PLC) is not a presumptive disease associated with exposure to contaminants in the water supply at Camp Lejeune. Nonetheless, 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). Therefore, the next step is to verify, with medical evidence obtained through a VA medical examination or other authoritative medical sources, whether a claimed current disease or disability is at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune. Service treatment records are silent for any treatment, findings or diagnosis of PLC. An April 1978 service treatment record shows that the Veteran was seen for dermatitis on his right hand, but there is no evidence of a chronic skin disorder. The Veteran’s September 1980 Report of Medical Examination, completed at service separation, showed a normal clinical evaluation of the skin system. Next, the Veteran diagnosed with PLC in approximately 2002, approximately 20 years following service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Moreover, the evidence includes a medical opinion dated in January 2012 from one of the Veteran’s treating physicians, Dr. Kehoe. At that time, it was noted that the Veteran had a history of PLC, which had been fairly stable. Dr. Kehoe further indicated that it was “possible” that chemicals found at Camp Lejeune “may” have precipitated the Veteran’s PLC. However, Dr. Kehoe noted that “there is no literature at this time that we are aware of that links trichloroethylene, perchloroethylene, and benzene with pityriasis lichenoides chronica.” Dr. Kehoe further stated that, although these chemicals had been associated with the development of leukemias and lymphomas, PLC was considered a benign dermatologic condition that did not involve abnormal lymphocytes which could be seen in certain types of leukemias or lymphomas. The evidence also includes an undated statement from Dr. Gurevich. At that time, it was noted that the Veteran had a long history of a skin condition. Dr. Gurevich indicated that the Veteran’s current skin symptoms were related to exposure to solvents during service. The Board finds that the opinion from Dr. Gurevich lacks probative value. Dr. Gurevich did not identify the specific chemicals in the water at Camp Lejeune. There was also no rationale provided for the opinion rendered. See Miller v. West, 11 Vet. App. 345, 348 (1998) (the Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). VA also obtained a medical opinion in May 2016. The examiner reviewed the claims file, to include the Veteran’s service records and the statement from Dr. Kehoe and Dr. Gurevich. The examiner opined that the Veteran’s PLC was less likely than not related to exposure to contaminated water at Camp Lejeune. In support of this opinion, the examiner noted that studies were lacking linking PLC to prior exposure to the chemicals in ground/drinking water. The current medical-scientific literature failed to report a causal association between exposure to the specific chemical contaminants reported in the water at Camp Lejeune and the late development of PLC. As discussed above, service treatment records do not reference any symptoms, treatment, or diagnosis of PLC. Clinical evaluation of the skin was normal at the separation examination in 1980. The first evidence of PLC was also many years after service. The Board notes that the Veteran served at Camp Lejeune during the period of potential exposure; thus, he is presumed to have been exposed to contaminated drinking water. Further, as noted above, the Veteran has been diagnosed with a skin disorder, PLC. What is missing from the record is competent evidence showing that the Veteran’s PLC is causally related to the Veteran’s presumed exposure to contaminated water in service. As noted above, the VA examiner and Dr. Kehoe rendered negative opinions, with rationales, opining that the medical literature did not support a finding that the Veteran’s skin disorder was caused by or a result of exposure to contaminated water at Camp Lejeune. The Board finds that these opinions were based on medical and scientific literature, and are probative and persuasive on the issue of whether the claimed condition is related to active service. The Board recognizes that the Veteran contends that his PLC is related to exposure to contaminated water during his service at Camp Lejeune. However, the Veteran is not competent to report that his current disorder is related to exposure to contaminated water in service. 38 U.S.C. § 1153 (a); 38 C.F.R. §§ 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Particularly where the matter of the health effects of contaminated water at Camp Lejeune are the subject of scientific studies, the Board finds that the question of the relationship PLC and water contamination is far outside the realm of lay expertise. For these reasons, the Board finds that the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Lumbar Spine Disorder As noted in the previous section, the evidence establishes that the Veteran was stationed at Camp Lejeune during a period of potential exposure. However, orthopedic disorders (to include lumbar spine disorders) are not presumptive diseases associated with exposure to contaminants in the water supply at Camp Lejeune. Nonetheless, 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, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records are silent for any treatment, findings or diagnosis of a low back disorder. The Veteran’s September 1980 Report of Medical Examination, completed at service separation, showed a normal clinical evaluation of the spine. Following service separation, the medical evidence includes a March 1981 treatment record from Madison General Hospital. At that time, it was noted that the Veteran was admitted for a planned lumbar myelogram. The Veteran reported that he had injured his back approximately 3 months ago at work while carrying a dolly and slipped and fell on cement steps landing on his buttocks. Approximately 48 hours after the fall, the Veteran reported that he developed aching discomfort in the right buttocks and radiating pain in the right leg. The Veteran also submitted an excerpt from Harold Zeliger’s Human Toxicology of Chemical Mixtures that indicated that Xenobiotic exposure could adversely affect bones joints connective tissue and muscles. However, the Board finds this excerpt to lack probative value as it is far too general to tend to prove or disprove the nexus element.. In sum, the Board finds that here is no objective medical or scientific evidence of record showing a relationship between the Veteran’s back disorder and exposure to contaminated water at Camp Lejeune. There is also not probative evidence that this condition was incurred during active duty military service. The Board has also considered the Veteran’s statements purporting to relate his currently diagnosed lumbar spine disorder to service. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of a lumbar spine disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Lumbar spine disorders are medically complex disease processes because of their multiple possible etiologies. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). For these reasons, the Board finds that a preponderance of the evidence is against the claims for service connection for a lumbar spine disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.