Citation Nr: 20021814 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-58 025 DATE: March 27, 2020 ORDER The issue of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or being housebound is dismissed. The issue of entitlement to service connection for infertility/sterility, to include as due to exposure to contaminated water at Camp Lejeune, is denied. REMANDED The issue of entitlement to service connection for kidney failure, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. The issue of entitlement to service connection for a skin condition, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. The issue of entitlement to service connection for neurobehavioral effects, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. At the September 2019 Board hearing, prior to the promulgation of a decision in the appeal, the appellant requested withdrawal of the appeal of the issue of entitlement to SMC based on aid and attendance or housebound criteria. 2. A diagnosis of infertility/sterility is not shown by the evidence of record. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of special monthly compensation (SMC) based on the need for regular aid and attendance or being housebound have been met. 38 U.S.C. § 7105(b)(2), (d)(5), 7108 (2012); 38 C.F.R. § 20.205 (2019). 2. The criteria for entitlement to service connection for infertility/sterility, for the purposes of accrued benefits, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1956 to July 1960. He passed away in July 2018. The appellant is his surviving spouse and has been substituted as claimant for the claims for service connection pending at the time of the Veteran’s death. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).   In September 2019, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Additionally, the Board notes that a notice of disagreement (NOD) was filed at the RO concerning entitlement to service connection for kidney cancer. The appeal is listed in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board at this time may actually delay the RO's adjudication of that appeal. As such, no action will be taken by the Board at this time, and the issue will be the subject of a later Board decision, if ultimately necessary. 1. Entitlement to SMC For Aid and Attendance or Housebound The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. At the September 2019 Board hearing, prior to the promulgation of a decision in the appeal, the appellant requested withdrawal of the appeal of entitlement to SMC based on aid and attendance or housebound criteria. Thus, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. 2. Entitlement to service connection for infertility/sterility, to include as due to exposure to contaminated water at Camp Lejeune Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The appellant contends that her husband was infertile due to sexually-transmitted diseases incurred during service or, alternatively, to exposure to contaminated water while serving at Camp Lejeune. The Veteran’s exposure to contaminated water at Camp Lejeune has been conceded. More specifically, the appellant stated that the Veteran tried to have children during his three marriages but was unsuccessful and that a medical provider suggested that it was possible that the Veteran’s in-service sexually transmitted diseases resulted in infertility. She also asserted that the Veteran injured his back playing football during service, which may have caused his infertility. See September 2019 Board statements and October 2016 statement. After reviewing the record, the Board concludes that the probative evidence does not show that the Veteran suffered from infertility/sterility or was diagnosed with the condition during the pendency of the appeal or approximate to the May 2014 claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Further, VA and private treatment records do not document a medical history of infertility/sterility or complaints, treatment or diagnosis related to the condition at any point during the pendency of the appeal or approximate thereto. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). That a condition or injury occurred in service alone is not enough; there must be a disability resulting from that condition or injury. Id., at 1332. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). While the appellant believes the Veteran suffered from infertility/sterility during the claim that was related to service, she has not been shown to have the specialized training sufficient to render a diagnosis of infertility/sterility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of infertility/sterility is a matter not capable of lay observation and requires medical expertise to determine. Thus, the appellant’s opinion that the Veteran suffered from infertility/sterility is not competent medical evidence. The Board finds the medical evidence of record that fails to document a diagnosed condition is more probative than the lay assertions. In summary, without the presence of a diagnosis of infertility/sterility during the pendency of the appeal, the appellant’s claim for service connection is not warranted, and the claim is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for kidney failure, to include as due to exposure to contaminated water at Camp Lejeune 2. Entitlement to service connection for a skin condition, to include as due to exposure to contaminated water at Camp Lejeune 3. Entitlement to service connection for neurobehavioral effects, to include as due to exposure to contaminated water at Camp Lejeune The record suggests there may be outstanding VA and private treatment records relevant to the claimed kidney disease. During the Board hearing, the appellant stated the Veteran began experiencing kidney trouble in the early 2000s, received dialysis treatment and was treated by private providers at Oakwood Hospital, Dearborn, MI and DaVita Dearborn Dialysis. She also stated the Veteran received treatment from a VA Hospital, possibly in Alabama, after his discharge from service. Additionally, a November 2014 VA treatment record and December 2014 VA examination report note a history of dialysis treatment for 8 to 10 years. These treatment records are not associated with the claims file. On remand, reasonable efforts to obtain outstanding VA and private treatment records should be made. With regard to the claimed skin condition, service treatment records in January 1958 show treatment for a penile ulcer and sexually transmitted diseases. A December 2014 VA examiner diagnosed dermatitis of the lower extremities and opined the condition was less likely than not related to the penile ulcer during service. However, the examiner did not provide an adequate rationale for the conclusions reached. Thus, an addendum VA opinion is warranted. With regard to the claimed neurobehavioral effects disability, during the Board hearing, the appellant stated she observed the Veteran experience symptoms of shaking, tremors and unusual gait, which she attributed to the Veteran’s exposure to contaminated water at Camp Lejeune. A June 2017 VA neuropsychology record notes reported issues with cognition and memory, a diagnosis of unspecified dementia with behavioral disturbance, and test results showing intermittent cognitive impairment of unknown etiology, although complications from diabetes mellitus with a concurrent progressive dementia could not be ruled out. Post-service private treatment records in November 1966 and November 1968 reflect complaints of dizziness and headaches. VA treatment records from 2014 to the present reflect depression, anxiety, insomnia, memory loss, and poor sleep. A VA opinion should be obtained. The matters are REMANDED for the following actions: 1. Ask the appellant to provide the names and addresses of medical care providers who treated the Veteran for his kidney disease, to include any private medical providers. Further, ask the appellant to submit medical release forms for treatment providers from Oakwood Hospital, Dearborn, MI, and DaVita Dearborn Dialysis. After securing any necessary releases, request any relevant records identified. In addition, request any outstanding VA hospitalization and VA treatment records. If any requested records do not exist or cannot be obtained, the appellant should be notified of such. 2. Provide the claims file to an appropriate VA examiner to obtain an opinion addressing the claimed skin condition. After reviewing the claims file, the examiner should opine whether it is at least as likely as not (50 percent or higher probability) that the claimed skin condition arose during service or is related to service. In rendering the opinion, the examiner should address service treatment records in January 1958 reflecting treatment for a penile ulcer and sexually transmitted disease and why this is/is not related to a current skin condition. 3. Provide the claims file to an appropriate VA examiner to obtain an opinion addressing the claimed neurobehavioral effects disability. After reviewing the claims file, the examiner should respond to the following: (a.) Did the Veteran suffer from a neurobehavioral condition or residual neurobehavioral disability during the pendency of the appeal (from May 2014)? The examiner should explain why or why not, to include addressing post-service treatment records documenting complaints of dizziness, headaches, depression, anxiety, insomnia, memory loss, and poor sleep. (b.) If so, is it at least as likely as not (50 percent or higher probability) that the condition or any residual disability thereof is related to service, to include the presumed exposure to contaminated water at Camp Lejeune? The examiner should explain why or why not. A complete rationale should be provided for the opinions and conclusions expressed. 4. If the benefits sought on appeal remain denied issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.