Citation Nr: 20047079 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 15-27 126A DATE: July 14, 2020 ORDER Entitlement to service connection for neurobehavioral effects, to include memory loss, insomnia, weakness and stress, due to exposure to contaminated water at Camp Lejeune is denied. FINDING OF FACT The competent evidence of record does not show a current diagnosis of neurobehavioral effects. CONCLUSION OF LAW The criteria for entitlement to service connection for neurobehavioral effects have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to November 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an August 2014 rating decision Department of Veterans Affairs (VA) rating decision. In the August 2014 rating decision, service connection was separately denied for: 1) nervous problems/nervousness; 2) depression; and 3) neurobehavioral effects including memory loss, insomnia, weakness and stress. In his September 2014 notice of disagreement, the Veteran only indicated an intent to appeal the issue of entitlement to service connection for neurobehavioral effects. The Board’s jurisdiction is thus limited to this issue. Entitlement to service connection for neurobehavioral effects is denied. The Veteran contends that he suffers from neurobehavioral effects related to in-service exposure to contaminated water at Camp Lejeune, North Carolina from May 1971 to June 1972 and in November 1972. Service connection is established on a direct basis when there is 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. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a), (d). 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, North Carolina 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). Contaminants in the water supply means the volatile organic compounds trichloroethylene, perchloroethylene, benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. Id. Pursuant to 38 C.F.R. § 3.309 (f), diseases subject to presumptive service connection based on exposure to contaminated water are: kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic myeloma with other myelodysplastic syndromes and bladder cancer. No neurobehavioral or psychiatric disorder is covered under 38 C.F.R. § 3.309 (f). Nevertheless, based on analyses of potential exposures at Camp Lejeune and scientific studies involving these chemicals conducted by the National Academy of Sciences National Research Council (NRC), fifteen diseases were identified as having limited/suggestive evidence of an association with trichloroethylene, perchloroethylene, or a solvent mixture exposure. These include esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage, scleroderma, neurobehavioral effects, and non-Hodgkin’s lymphoma. The evidence shows that the appellant served for at least 30 days while on active duty at Camp Lejeune. Hence, he is presumed to have been exposed to contaminated water inservice. The Veteran was provided a VA examination in April 2019 to address the nature and etiology of any neurobehavioral effects. The examiner found no diagnosis of neurobehavioral effects based on an absence of clinical findings to support such diagnosis. The examiner instead diagnosed the Veteran with major depressive disorder, and indicated that the reported symptoms of memory loss, sleep issues, and stress were related to the major depressive disorder. The examiner noted the Veteran’s report of weakness but opined that such symptom could not be attributed to any mental health diagnosis. While private treatment records, to include in February 2014 and February 2015, note assessments of insomnia, the April 2019 VA examiner found that the Veteran did not meet the formal criteria for a diagnosis of insomnia. Instead, the examiner found that the Veteran’s sleep issues were due to his major depressive disorder. In a May 2020 statement, the Veteran disputed the findings of the April 2019 VA examiner. The Veteran argued that the examiner had discounted his symptoms of insomnia, memory loss, weakness, and stress without performing adequate testing, and alleged that the examiner was not qualified to conduct his examination. Additionally, the Veteran contended that the April 2019 VA examiner told the Veteran verbally that he did have neurobehavioral effects. The April 2019 examination report includes a comprehensive discussion of the Veteran’s history and symptoms based on an in-person examination and a complete review of the record. Despite the Veteran’s concerns, the examiner expressly acknowledged the reported symptoms of difficulty sleeping, memory loss, and stress and specifically attributed those symptoms to the Veteran’s major depressive disorder. With regard to the reported weakness, the examiner considered the Veteran’s report of that symptom but concluded that it was not attributable to a mental health disorder. As the April 2019 VA examination included a comprehensive review and discussion of the relevant evidence, the examination report and medical opinion are adequate for adjudication in this case. The Veteran has not provided any specific reason that he believes that the April 2019 examiner was not qualified to provide a medical opinion in this case. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence. Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). If the Veteran wishes to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). Here, the Veteran’s argument regarding the qualification of the April 2019 examination pertains to the conduct of the examination itself and the conclusions reached by the examiner rather than the specific qualifications of the examiner. Therefore, the presumption is not rebutted in this case, and there is no indication that the Veteran intends to request the curriculum vitae of the examiner. Accordingly, the April 2019 examination is adequate for adjudication in this case, and remand is not required on this basis. With regard to the Veteran’s report of being told that he did have neurobehavioral effects, the Veteran is competent to report what he was told by a physician. Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the Veteran asserts he is reporting a contemporaneous diagnosis. However, the Veteran’s description of what the April 2019 VA examiner told him is contradicted by the conclusions reached in the same examiner’s medical opinion: “there are no clinical findings of neurobehavioral effects.” While the Veteran may sincerely believe this statement was made by the examiner, greater probative weight is afforded to the documented and explained findings in the medical opinion. The Board acknowledges the Veteran’s assertion that he has neurobehavioral effects which are related to exposure to contaminated water at Camp Lejeune. However, as a layperson the Veteran is not shown to have the relevant training or education to offer a medical opinion diagnosing a neurobehavioral disorder or to relate memory loss, insomnia, weakness and stress to contaminated water. The diagnosis and etiology of neurobehavioral effects are medically complex as they require specialized medical education and the Veteran’s symptoms have multiple possible etiologies. Jandreau, 492 F.3d at 1377 n.4. By contrast, the available competent evidence of record reveals that the Veteran’s complaints, including memory loss, insomnia, weakness and stress were not neurobehavioral effects but instead were attributable to depressive disorder. Based on the foregoing, the competent evidence preponderates against finding that the Veteran has had neurobehavioral effects related to contaminated water at any time during the claims period. As discussed above, the Veteran’s September 2014 notice of disagreement limited the scope of his appeal to his claim for neurobehavioral effects. The April 2019 VA examiner diagnosed a major depressive disorder, but no neurobehavioral disorder. As the issue of entitlement to service connection for major depressive disorder is not before the Board, it is not appropriate to analyze that issue. If the Veteran wishes to pursue claims for service connection for nervous problems/nervousness or depression, he is invited to file a formal claim for these issues. (Continued on the next page)   As the evidence preponderates against finding a current disability of neurobehavioral effects for which service connection may be granted, service connection is not warranted, and the claim is denied. Brammer v. Brown, 3 Vet. App. 223 (1992). LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.