Citation Nr: 20035296 Decision Date: 05/20/20 Archive Date: 05/20/20 DOCKET NO. 14-08 945 DATE: May 20, 2020 ORDER Entitlement to service connection for a right foot disability, to include misalignment of toes on right foot and foot pain and discomfort, is denied. Entitlement to service connection for left foot disability is denied. Entitlement to service connection for liver disease, to include hepatitis C, is denied. FINDINGS OF FACT 1. The Veteran’s right foot disability did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. 2. The Veteran’s left foot disability did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. 3. The evidence does not demonstrate that the Veteran’s liver disease, to include hepatitis C, had its onset during active duty service or was otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for liver disease have not been met. 38 U.S.C. §§ 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to February 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from the September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board issued remands in July 2015 and April 2018 for further development, specifically to obtain all VA treatment records and for new VA examinations and medical opinions. The Board finds that VA followed the remand instructions properly, and the issues are properly before the Board for adjudication. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines “contaminants in the water supply” as the volatile organic compound trichloroethylene (TCE), perchloroethylene (PCE), 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. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309 (f), (i.e., adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease), if manifest to a degree of 10 percent of more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The rulemaking applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 9, 4173-4185 (January 13, 2017); VA M-21-1 Adjudication Manual, Part IV, Subpart ii, Chapter 2, Section C.6.a. (revised March 14, 2017). There is no dispute that the Veteran was exposed to the contaminated water supply at Camp Lejeune by virtue of his service at United States Marine Corps Base Camp Lejeune during the presumptive period. However, the Veteran has not been diagnosed with any of the presumptive diseases enumerated under 38 C.F.R. § 3.309 (f). Thus, the question for the Board is whether service connection for the Veteran’s claimed disabilities is still warranted on a direct basis due to that exposure. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and evidence of record in a case before the Board with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right foot disability 2. Entitlement to service connection for left foot disability The Veteran asserts that his bilateral foot disability began in service. Specifically, that he began having pain in both feet in about 1973 or 1974, and that he has had continuous pain since separating from service. He also reported that a knife fell off a fridge and went through his foot while he was in service. The Veteran’s entrance and separation examinations are silent for any foot pain or disability. His service treatment records reflect that he did not have any right foot problems during service. In a January 1975 record, the Veteran sought treatment for a laceration to his left foot. He received the injury the night before by a hunting knife that fell off the refrigerator. The Veteran explained that he did not seek treatment as soon as he suffered the injury because he did not think it was that bad. Upon examination, it was noted that he had a puncture wound in his left foot about one to one and a half inches in length, he had slight swelling, had limited range of motion, and experienced pain and tenderness. The area was cleaned with sterile procedure and a dry sterile dressing was put on. He was placed on limited duty where he was not to do any physical training, marching, or excessive walking. He was instructed to elevate his foot. Since the initial day, he came to change the dressing daily. At first there was no sign of infection, but on the second day the Veteran was diagnosed with cellulitis since the wound had become infected. After that the Veteran continuously got the dressing changed and slowly the wound healed. In February 1975, the examiner noted that the wound healed well and that the Veteran was allowed to go back to fully duty. The Veteran’s separation examination did not mention any left problems and reported that his feet were normal. Post-service treatment records starting from September 1998 reflect the first complaint of foot problems in June 2003. In June 2003, the Veteran was first diagnosed with callous formation on both heels. In April 2008, the Veteran was diagnosed with a corn on his right foot. He was seen at the Podiatry Clinic several times during 2008 and eventually in December 2008 had surgery on his right fifth metatarsal done. He healed from the surgery and was not seen again for a foot problem until October 2009 where he had a painful callus under the right fifth metatarsophalangeal joint. A note in February 2010 stated that the painful callus resolved. He was not seen again until October 2014 for painful calluses. Since then he has frequently sought treatment for painful calluses for both feet. The February 2014 VA examination diagnosed the Veteran with hammer toes in the right little toes with a diagnosis date of October 2009 and painful callus under the right fifth metatarsophalangeal joint with a diagnosis date of April 2008. The Veteran reported that he started having pain in both feet in about 1973 or 1974. He reported that he was last seen for his feet in 2010 and that he has constant pain in his right foot, specifically in the ball of his foot on the lateral side. He explained that the constant pain started after his right foot surgery in 2008. Prior to that, he had intermittent right foot pain that resolved whenever his calluses were trimmed. He also reported pain in his left heel a few times a month which would last a couple of hours. X-rays of the feet in February 2014 showed that the Veteran had normal feet. The X-ray in August 2008 showed that the Veteran had a normal right foot. The examiner opined that it was less likely than not that the Veteran’s bilateral foot disability incurred in or was caused by service. The examiner explained that after thoroughly reviewing the Veteran’s claim file and VA treatment records, no chronic foot condition was documented in service. The examiner noted that the Veteran was treated for a wound to his left foot, but it resolved, and the Veteran’s separation examination claimed that his feet were normal. The examiner explained that the first time the Veteran was seen for foot pain after leaving service was in April 2008, which was 32 years after separating from service. He thus opined that the Veteran’s current bilateral foot disability was not related to his service or his in-service treatment for a wound on his foot. In the November 2014 Board hearing, the Veteran testified that his has had continuous pain in his feet since he left military service. Social Security Administration records reflect that the Veteran was found disabled due to his foot disabilities. The November 2017 VA addendum opined regarding the Veteran’s bilateral foot disability. The examiner reviewed the Veteran’s entire claims file and concluded that a clinical examination would not be necessary to answer the opinions. The examiner first summarized the Veteran’s foot disabilities that began in service. The examiner opined that because the Veteran had a normal separation examination when he left service with no foot problems documented and was not seen for a foot problem until June 2003, which was 27 years later, there was insufficient objective evidence to establish a nexus for a right or left foot disability related to service. The examiner specifically opined that the Veteran’s right foot disability was less likely than not incurred in or resulted from his service since the STRs do not show any documentation of a chronic right foot condition and the earliest documentation of him having a right foot disability was in June 2003, which is 27 years after he separated from service. He then opined that the Veteran’s toe disability of the right foot was less likely than not incurred in or resulted from service since his STRs do not document any right foot toe disability and the earliest documentation of his current toe disability was in October 2009, which was 33 years after he separated from service. And finally, he opined that the Veteran’s left foot disability was less likely than not incurred in or resulted from service since his STRs do not document a chronic left foot disability and the earliest documentation of him having a current left foot disability was in June 2003 which is 27 years after he separated from service. The Board finds that the Veteran’s current bilateral foot disability is not etiologically related to his military service. Although his STRs note an instance where he had a left foot laceration, the records reflected that it healed, and no disability was noted upon his separation from service. Nor is there any evidence that any foot disability manifested to a compensable degree within one year of separation. Although the Board acknowledges that the Veteran reported an injury in service, there is no documentation in his STRs showing a chronic complaint of pain. Moreover, there was evidence that his left foot laceration healed and that he was allowed to go back to full duty. The Board finds that the probative value of the medical records outweighs the Veteran’s recollections regarding his bilateral foot pain, and that his recollections lack credibility in this regard. Thus, the earliest competent and credible evidence indicating the presence of any foot disability is many years after the Veteran’s separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the record does not contain any medical opinion indicating that the Veteran’s bilateral foot disability incurred in or otherwise is related to active service. The Board notes that while the Veteran is competent to report observable symptoms, he is not shown to possess the medical training necessary to establish a current disability or render competent opinions about the etiology of a disability. Under the facts of this case, given the largely silent STRs, the absence of any credible evidence of a bilateral foot problem until many years after service, and the multiple potential etiologic factors that accompany such a long period following service, the Board finds that the matter of determining the etiology of the bilateral foot disability is more suitable to medical rather than lay expertise. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a bilateral foot disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for liver disease, to include hepatitis C The Veteran contends that his hepatitis C developed due to his exposure to contaminated water at Camp Lejeune. He also asserts two incidents during service that could have contributed to him acquiring hepatitis C. He first mentioned a foot laceration by a hunting knife that got infected and then an assault during service that caused a laceration to his scalp. The question before the Board is whether the Veteran’s currently diagnosed hepatitis C or hepatic steatosis is etiologically related to his active duty service, to include as secondary to his exposure to contaminated water at Camp Lejeune. Based on a careful review of all the subjective and clinical evidence, the preponderance of the evidence weights against finding service connection for hepatitis C. The Veteran’s STRs do not document any findings related to any complaints, treatment, or diagnosis for any liver disease, including hepatitis C or hepatic steatosis. A review of the Veteran’s available treatment records show that he was diagnosed with hepatitis C in 2000. He had two rounds of treatment with eventual clearing of the virus in 2015. In 2001, a medical note stated that the Veteran had a history of intravenous drug abuse in the 1970s. In a March 2001 medical note, the Veteran admitted to multiple sex partners, of having a tattoo, and of intranasal cocaine use. In June 2013, the Veteran was diagnosed with hepatic steatosis via an ultrasound. In the November 2014 Board hearing, the Veteran testified that he is still getting treatment for fatty liver disease and that this is one of the diseases covered under the presumption for Camp Lejeune contaminated water. He also reported that when his foot got lacerated by the hunting knife, he was never informed that hepatitis could have entered his body through that wound. In September 2017, the Veteran underwent a VA examination. The examiner noted diagnoses for hepatitis C and hepatic steatosis. The examiner concluded that neither condition was due to nor related to the Veteran’s exposure of Camp Lejeune contaminated water (CLCW). With regard to the diagnosed hepatic steatosis, the examiner noted that fatty liver disease was clearly recognized as a primary direct consequence of obesity and alcohol consumption which were the two most common known causes. The examiner further noted that the Veteran underwent ultrasound screenings in 2001, 2003, and 2007 which revealed a normal appearing liver. A May 2010 ultrasound was noted as positive for hepatic steatosis which was confirmed by an August 2014 ultrasound. Accordingly, the examiner found that hepatic steatosis developed between December 2007 and May 2012, over 30 years following exposure to CLCW. The examiner also reviewed studies and medical literature regarding an association between fatty liver disease and exposure to organic solvents, including contaminated groundwater at Camp Lejeune. Lastly, the examiner noted that the Veteran had known significant risk factors including being overweight and many years of alcohol abuse. Based on the scientific literature, the short duration of exposure to CLCW and the 31- to 36-year gap in time between the end of his exposure and his diagnosis for hepatic steatosis, the examiner determined that the condition was not due to or related to exposure to CLCW. As to the Veteran’s diagnosed hepatitis C, the examiner simply noted that the scientific literature did not support a finding that such condition was transmitted through chemically contaminated water. Therefore, the examiner concluded that hepatitis C was not caused by or related to the Veteran’s exposure to CLCW. The Veteran underwent another VA examination in April 2019. The Veteran reported that he was unsure of how he got hepatitis C and thinks he got it from his time in service, especially because he heard that Camp Lejeune had a bad water supply. He also reported that he was in Jacksonville, North Carolina in either 1973 or 1974 when he was jumped by four to five people and was hit over the head. He had to get stiches on his head by the Camp Lejeune medics. He also reported that he got stabbed in his right foot with a 12-inch knife. He remembered that somebody was playing around with the knife and struck the floor with it and it hit his right foot. He reported that he waited a few days before seeing the medics and got stitches for it. He reported that it got infected and that he had to get antibiotic shots. The Veteran reported that he thinks he received a blood transfusion but was uncertain when, that he snorted cocaine, had multiple sex partners and cannot recall condom use, that he was in jail multiple times, and that he has a tattoo on his right upper arm. The examiner opined that it was less likely than not that the Veteran’s hepatitis C incurred in or was caused by his time in service. The examiner explained that hepatitis C is a virus transmitted from person to person through direct contact with infected blood or body fluids. He further reported that according to the medical record, the Veteran sustained a laceration to his left foot with a hunting knife and he could not recall if the knife had blood on it. The records documented that a sterile procedure was followed to treat the wound, but that it did become infected and he developed cellulitis. The examiner explained that this type of infection is not an uncommon occurrence in a laceration from a dirty object and when there is a delay in treatment. Because of both factors, the bacteria from the contaminated knife multiplied in the wound. The examiner explained that fortunately, the bacterial infection responded to the prescribed antibiotic since records show that healing was documented, and he was able to return to full duty and was discharged from service a year later with a normal examination. The examiner opined that it was less likely as not that hepatitis C spread from the medical staff since sterile procedures were documented when treating the laceration and it was routine precaution from basic medical training to always wear examination gloves when working on an open wound. Additionally, there was no evidence of another human’s blood on the hunting knife that could have contaminated the puncture site. The examiner further opined that while the Veteran alleged that he could have contracted hepatitis C from drinking the Camp Lejeune water, according to current and competent medical literature, hepatitis C is not considered a presumptive condition in this situation. He also explained that hepatitis C is not transmitted through drinking water. The examiner then addressed the alleged assault and laceration to the Veteran’s scalp and explained that there was no documentation in his STRs that showed he was seen and treated for this injury. Additionally, a traumatic injury to the scalp causing a laceration would not be expected to transmit hepatitis C virus. The examiner further reported that upon review and according to medical literature, the Veteran had other risk factors. They included intravenous drug abuse in the 1970s, having multiple sex partners, having a tattoo, jail time, and participating in intranasal cocaine use. The examiner explained that the Veteran had predominantly well-established risk factors for acquisition of hepatitis C and thus in comparison, the Veteran’s claimed etiology for hepatitis C is very minimal and unlikely. The examiner furthered that there is no competent evidence to suggest that the origin of the Veteran’s hepatitis C came from a hunting knife, a scalp laceration, or drinking contaminated water at Camp Lejeune. The examiner opined that rather, the preponderance of evidence shows the Veteran practiced risky behaviors, such as intravenous drug abuse, intranasal cocaine use, multiple sex partners, and multiple jail times, which had the cumulative effect of increasing his odds of developing hepatitis C. As previously noted above, hepatitis C is not among the enumerated presumptive diseases for exposure to contaminated water at Camp Lejeune. The Veteran alleged that hepatic steatosis was included in the presumption; however, only liver cancer is included in the presumption for contaminated waters at Camp Lejeune. There is no evidence that the Veteran was diagnosed with liver cancer. Thus, the Board must still consider whether the Veteran’s hepatitis C was directly caused by his exposure to contaminated water at Camp Lejeune. In that regard, the Board finds that collectively, the September 2017 and April 2019 VA opinions provide the most probative evidence as to the etiology of the Veteran’s hepatitis C. After performing an objective evaluation, reviewing the Veteran’s medical records, and considering the Veteran’s lay assertions, the VA examiners opined that the Veteran’s hepatitis C was less likely than not incurred in or caused by his military service. In making that determination, the VA examiners noted that hepatitis C was a viral hepatitic condition that is transferred through blood and bodily fluids. The VA examiner found that the Veteran had risk factors for hepatitis C infection, including intravenous drug use, intranasal cocaine use, multiple sex partners, a tattoo, and multiple jail time. Accordingly, the Board finds that service connection for hepatitis C on a direct basis is not warranted. The Board finds that the only evidence supporting the Veteran’s contentions are his own lay assertions. Although lay evidence may be competent to establish a medical etiology or nexus, the Veteran has not established that he has the requisite specialized training or knowledge to relate his hepatitis C to his exposure to contaminated water at Camp Lejeune. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran’s lay assertions are not competent to provide an etiological opinion for his hepatitis C, and thus, offers little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for a liver disease, to include hepatitis C due to exposure to contaminated water at Camp Lejeune. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate 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.