Citation Nr: 20050177 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 11-25 287 DATE: July 28, 2020 ORDER Entitlement to service connection for helicobacter pylori infection, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is denied. REMANDED Entitlement to service connection for a cardiovascular/vascular disorder, including dissection of the common iliac artery and hypertension, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is remanded. Entitlement to service connection for metabolic syndrome, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is remanded. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran’s helicobacter pylori infection is the result of an in-service disease or injury, to include exposure to contaminated water at Camp Lejeune, North Carolina. CONCLUSION OF LAW The criteria for service connection for helicobacter pylori infection have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1973 to August 1975, to include more than 30 consecutive days of service at Camp Lejeune, North Carolina. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The matters were most recently before the Board in August 2019, when they were remand to ensure compliance with the Board’s previous January 2015 remand directives. Specifically, in August 2019, the Board directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for an examination to obtain a nexus opinion regarding his pending service connection claims, as had been directed in January 2015. The Board notes the AOJ had previously obtained a nexus opinion regarding the Veteran’s claims without an examination prior to recertification to the Board in November 2018. VA provided the Veteran the required examination in February 2020, which also resulted in an adequate opinion regarding the Veteran’s claims; therefore, there has been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for certain enumerated diseases related to exposure to contaminated drinking water at Camp Lejeune. Under the new regulations, a veteran 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 was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of 38 C.F.R. § 3.307(a)(7), the following diseases will be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): (1) kidney cancer; (2) liver cancer; (3) Non-Hodgkin’s lymphoma; (4) adult leukemia; (5) multiple myeloma; (6) Parkinson’s disease; (7) aplastic anemia and other myelodysplastic syndromes; and (8) bladder cancer. 38 C.F.R. § 3.309(f). The rule applies to all claims pending before the finalization of the rule on March 14, 2017, as in this case. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The record establishes the Veteran has helicobacter pylori infection. The Veteran claims his helicobacter pylori infection is the result of his presumed exposure to contaminated water at Camp Lejeune. Yet, helicobacter pylori infection is not a disease presumed to result from exposure to contaminated water at Camp Lejeune under 38 C.F.R. § 3.309(f) or covered by any other presumptive provision outlined in VA regulations; therefore, there must be competent evidence of nexus to establish service connection for the disability. The Board finds the preponderance of evidence is against a finding that the Veteran’s helicobacter pylori infection is the result of an in-service disease or injury, to include exposure to contaminated water at Camp Lejeune. In February 2020, a VA examiner provided an opinion indicating the Veteran’s helicobacter pylori infection is less likely than not the result of disease or injury in service. The February 2020 VA examiner noted there is no indication the Veteran experienced symptoms related to helicobacter pylori infection in service with the condition first being noted after an endoscopy in 2007, more than thirty years after the Veteran’s separation from service. The February 2020 VA examiner discussed medical literature related to contaminated water at Camp Lejeune and noted helicobacter pylori infection is not a disease known to be associated with exposure to contaminated water related at Camp Lejeune. The February 2020 examiner explained helicobacter pylori infection is a very common infection, noting approximately 60 percent of Hispanic individuals in the United States have helicobacter pylori infection. The VA examiner who provided an opinion regarding the Veteran’s service connection claim for helicobacter pylori infection in November 2016 also noted there is no medical literature or research that associates helicobacter pylori infection with exposure to contaminated water at Camp Lejeune. The Board finds the November 2016 VA opinion retains probative value even though the Board deemed a new opinion necessary in August 2019 to ensure compliance with its prior remand directives. The Board has no doubt the Veteran sincerely believes his helicobacter pylori infection is associated with exposure to contaminated water at Camp Lejeune, but he does not have the requisite training or expertise to address this type of medical question for a condition like helicobacter pylori infection, which is beyond lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Two experts have reviewed the current state of medical literature regarding diseases associated with exposure to contaminated water a Camp Lejeune and both found there is no evidence to support a link between exposure to contaminated water at Camp Lejeune and helicobacter pylori infection, with the most recent examiner also opining the Veteran’s medical history, to include his lay reports, fail to establish a link between the claimed disability and an in-service disease or injury. As there is no competent evidence that links the Veteran’s helicobacter pylori infection to an in-service disease or injury, to include exposure to contaminated water at Camp Lejeune, service connection for helicobacter pylori infection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a cardiovascular/vascular disorder, including dissection of the common iliac artery and hypertension, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is remanded. The Veteran has submitted several statements during the course of his appeal that assert he should be granted service connection for his claimed disabilities under the authority of the presumptive provisions related to herbicide agents outlined in 38 C.F.R. § 3.307(a)(6), explicitly arguing the chemicals conceded to have been in the water supply at Camp Lejeune under 38 C.F.R. § 3.307(a)(7) are similar in toxicity to those specifically noted in 38 C.F.R. § 3.307(a)(6)(i). While acknowledging the Veteran’s contention in this regard, the Board notes service connection cannot be granted on this basis without competent medical evidence to support the theory put forth by the Veteran. Nonetheless, subsequent to the Board’s August 2019 remand, the Veteran submitted a new statement that appears to assert that he was exposed to dioxin, or the chemicals specifically noted in 38 C.F.R. § 3.307(a)(6)(i), in service. In April 2020, the AOJ asked the Veteran to submit medical literature to support his contention regarding a potential link between dioxin exposure and his claimed disabilities. While there is no evidence to support either helicobacter pylori infection or metabolic syndrome are related to exposure to the chemicals listed in 38 C.F.R. § 3.307(a)(6)(i), the Board takes administrative notice of a 2018 report from the National Academy of Sciences (NAS) that indicates there is sufficient epidemiologic evidence to conclude that there is a positive association between herbicide agents, as defined in 38 C.F.R. § 3.307(a)(6)(i), and hypertension. Thus, the Board finds clarification and potential verification of the Veteran’s assertion regarding dioxin exposure is necessary. 2. Entitlement to service connection for metabolic syndrome, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is remanded. The Board finds the issue of service connection for metabolic syndrome is inextricably intertwined with the Veteran’s service connection claim for a cardiovascular/vascular disorder because the VA examiner who provided the most recent nexus opinion regarding the Veteran’s claims in February 2020 suggested the Veteran’s metabolic syndrome may be related to his cardiovascular disease. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) The matters are REMANDED for the following action: 1. Seek clarification from the Veteran as to whether he is claiming that he was exposed to the chemicals listed in 38 C.F.R. § 3.307(a)(6)(i) (otherwise referenced as dioxin, Agent Orange, or herbicide agents) in service. If so, the Veteran is asked to provide a detailed statement outlining the circumstances of such exposure, to include place, duration, and method of exposure. If the Veteran claims he was exposed to the chemicals listed in 38 C.F.R. § 3.307(a)(6)(i), efforts must be made to verify such exposure. 2. If the exposure to chemicals listed in 38 C.F.R. § 3.307(a)(6)(i) is verified, obtain a new opinion regarding the Veteran’s service connection claim for a cardiovascular/vascular disorder addressing whether the Veteran has a cardiovascular/vascular disorder, including dissection of the common iliac artery and hypertension, that is at least as likely as not the result of such exposure. The determination as to whether an in-person examination of the Veteran is necessary should be left to the discretion of the medical professional providing the opinion. The selected examiner must provide a complete rationale to support his or her conclusion. This rationale must discuss the 2018 NAS report that indicates there is sufficient epidemiologic evidence to conclude that there is a positive association between exposure to herbicide agents, as defined in 38 C.F.R. § 3.307(a)(6)(i), and hypertension. (Continued on the next page)   3. If the record suggests service connection for a cardiovascular/vascular disorder may be warranted, obtain a new opinion regarding the Veteran’s service connection claim for metabolic syndrome that addresses whether the Veteran’s metabolic syndrome is at least as likely as not proximately due to, or aggravated by, his cardiovascular/vascular disorder. The determination as to whether an in-person examination of the Veteran is necessary should be left to the discretion of the medical professional providing the opinion. If necessary, the opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.