Citation Nr: 21000255 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-35 124 DATE: January 4, 2021 ORDER Entitlement to service connection for high blood pressure associated with contaminated water at Camp Lejeune is denied. Entitlement to service connection for diabetes associated with contaminated water at Camp Lejeune is denied. Entitlement to service connection for stomach condition associated with contaminated water at Camp Lejeune is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s high blood pressure began during active service, or is otherwise related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune. 2. The preponderance of the evidence is against finding that the Veteran’s diabetes began during active service, or is otherwise related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune. 3. The preponderance of the evidence is against finding that the Veteran’s stomach condition began during active service, or is otherwise related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for high blood pressure associated with contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes associated with contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for stomach condition associated with contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from June 1972 to June 1974. The Veteran had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the United States Army Reserve from June 1974 to December 1996. The Veteran testified before the undersigned at a May 2015 Board Hearing held via video conference. The record contains a transcript of the hearing. The above matters were most recently addressed in an April 2018 Board Decision and Remand in which the Board remanded the above three issues for further development. As discussed in the duties to notify and assist section below, the Department of Veterans Affairs (VA) Regional Office (RO) has substantially complied with the Board’s remand instructions with respect to the above-listed claims, so the Board may proceed to the merits of those claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In the April 2018 Board Decision and Remand, the Board also remanded a claim of entitlement to service connection for radiculopathy of the bilateral lower extremities. The RO granted service connection for radiculopathy of the left and right lower extremities in an October 2020 rating decision. Therefore, the original appeal was resolved by the grant because it related only to entitlement to service connection and did not encompass the downstream elements of the rating for the condition. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed.Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e. the disability rating, is separate from any prior appeal regarding entitlement to service connection). Therefore, there is no pending appeal before the Board concerning radiculopathy. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veterans contends that each of the claimed conditions are related to exposure to contaminated water at Camp Lejeune. VA has acknowledged that persons residing or working at the United States Marine Corps Base Camp Lejeune, North Carolina, from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs), including perchloroethylene (PCE), trichloroethylene (TCE), benzene, and vinyl chloride. 78 Fed. Reg. 55,671, 55,672 (Sept. 11, 2013). In September 2016, based on the conclusions of scientific authorities, VA published a proposed regulation to establish a presumption of service connection for certain diseases associated with exposure to contaminated water at Camp Lejeune. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 81 Fed. Reg. 62,419 (Sept. 9, 2016). In January 2017, VA published the final rule amending 38 C.F.R. §§ 3.307 and 3.309 relating to presumptive service connection and adding eight diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune from August 1, 1953 to December 31, 1987. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (Jan. 13, 2017). This final rule establishes presumptive service connection for veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days, either consecutive or nonconsecutive, during this period, and who have been diagnosed with any of the following diseases: adult leukemia, aplastic anemia/myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin lymphoma, and Parkinson’s disease. Id. at 4184-85. The final rule became effective March 14, 2017, and the amended provisions of 38 C.F.R. §§ 3.307 and 3.309 are applicable to claims received by VA on or after March 14, 2017, and claims pending before VA on that date. However, the Veteran does not have any of these conditions. The Board notes that veterans who were exposed to contaminated water at Camp Lejeune are also eligible for hospital care and medical treatment for fifteen (15) conditions, some of which are not included on the presumptive list described above. 38 U.S.C. § 1710(e)(1)(F); 38 C.F.R. § 17.400. Because these conditions are “assumed” to be attributable to an affected veteran’s service, a direct service connection opinion should arguably be obtained where a veteran seeks service connection for one of those fifteen conditions. The Veteran does not have one of those fifteen conditions either and, in any event, VA has obtained direct service connection opinions with respect to each of the three conditions that he alleges may be due to exposure to contaminated drinking water at Camp Lejeune. The Veteran’s discharge examination (May 1974 Report of Medical Examination) took place at Camp Lejeune. His service treatment records indicate that he served with the 6th Marine Regiment with entries from August 1973 to his discharge in 1974 indicating assignment to the 6th Marine Regiment which operated out of Camp Lejeune during the pertinent period. Therefore, the evidence is at least in equipoise that the Veteran served at Camp Lejeune and was exposed to contaminated water. The alleged in-service element of each of the claims is established. 1. Entitlement to service connection for high blood pressure associated with contaminated water at Camp Lejeune The Veteran contends that he has high blood pressure which began during his active service in the late 1970s. See May 2015 Board Hearing Tr. at 6-7 (alleging that he went to sick call with headaches which were linked to high blood pressure). Alternatively, he argues that his high blood pressure is associated with contaminated water at Camp Lejeune. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hypertension (high blood pressure), and evidence shows that the Veteran was exposed to contaminated water at Camp Lejeune, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypertension began during service or is otherwise related to an in-service injury, event, or disease. With respect to the Veteran’s allegation that his condition began during his active service, his testimony was that the condition began in the late 1970s. See May 2015 Board Hearing Tr. at 7. His active service with the Marine Corps ended in June 1974. Thereafter, he was in the Army Reserves. His theory is that he started having high blood pressure during his time in the Army Reserves. Active military, naval, or air service includes active duty as well as any period of active duty training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The claimant bears the burden of establishing Veteran status during periods of ACDUTRA or INACDUTRA. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). As noted above, the Veteran alleged at his Board hearing that he began experiencing high blood pressure in the late 1970s. The Veteran was discharged from the U.S. Marine Corps in June 1974, so his allegations do not extend to his time in active service. In any case, the Veteran’s service treatment records do not document the onset of high blood pressure during his active service in the Marine Corps. In making this determination, the Board acknowledges a single blood pressure reading from May 1974 that was elevated. See May 1974 Report of Medical History (recording a single reading of systolic blood pressure of 139 and diastolic pressure of 90). However, this was a single reading and both prior and subsequent readings were well below the standard for hypertension. This reading does not establish an in-service occurrence of hypertension or onset of high blood pressure. Rather, it is a single, anomalous reading. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Code 7101, Note (1). A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days." Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). Therefore, hypertension was not factually shown during service, nor were there sufficient manifestations of a chronic disease to establish chronicity during service. After discharge from the Marine Corps, the Veteran transitioned into the U.S. Army Reserve in June 1974. He had periods of ACDUTRA and INACDUTRA from June 1974 to December 1996. His available records from that period of time do not indicate high blood pressure during that time. See July 1978 Report of Medical Examination (recording systolic blood pressure of 126 and diastolic pressure of 84); July 1978 Report of Medical History (indicating no history of high or low blood pressure); October 1980 Service Treatment Record (blood pressure of 150/80 and complaints of chest pain, headaches, and constipation; diagnosing an upper respiratory infection); September 1982 Report of Medical Examination (blood pressure of 128/78); September 1982 Report of Medical History (indicating no history of high or low blood pressure); July 1984 Service Treatment Record (recording blood pressure as 122/72 during visit with complaints of sore throat and diagnosis of viral pharyngitis); July 1986 Report of Medical Examination (blood pressure 134/66); July 1986 Report of Medical History (indicating no history of high or low blood pressure); August 1990 Emergency Room Note (blood pressure 139/79 after automobile accident); October 1990 Report of Medical Examination (blood pressure 118/78); October 1990 Report of Medical History (indicating no history of high or low blood pressure); see also September 2011 VA Examination (noting initial diagnosis of hypertension in 2005); May 2015 Board Hearing Tr. at 19-21 (testifying to an initial diagnosis of hypertension by a private physician (Dr. P) who treated him in the late 1980s and 1990s); February 2019 Report of General Information (documenting the Veteran’s correction of his testimony and indicating that he saw Dr. P. beginning in December 2004). The periodic medical examinations and reports of medical history throughout the Veteran’s service in the U.S. Army Reserve fail to indicate that the Veteran had high blood pressure during this time. Because the Veteran's service treatment records, including those during his Reserve service, do not include any indication of onset during a period of ACUTRA (to include a diagnosis of high blood pressure or hypertension, any readings showing high blood pressure, or treatment for high blood pressure or hypertension), the Board finds the greater weight of the evidence is that the Veteran's hypertension was not incurred during a period of ACDUTRA or INACDUTRA (the latter of which would only be relevant if the incurrence was the result of an injury). See also Private Treatment Records (documenting a diagnosis of hypertension treated with medication in a December 2004 progress note). In short, the greater weight of the evidence is against finding that the Veteran’s hypertension had onset during his active duty service in the Marine Corps or that he incurred disease or injury during a period of ACDUTRA or incurred an injury during a period of INACDUTRA that is related to or caused his current hypertension. The remaining theory is that the Veteran’s hypertension is related to exposure to toxins in contaminated water at Camp Lejeune. Hypertension is not one of the conditions presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). However, given the concession that the Veteran was exposed to contaminated water at Camp Lejeune, a claim based on direct service connection is still viable. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (holding that VA must consider direct service connection where presumptive service connection is not warranted). VA obtained an opinion regarding whether the Veteran’s hypertension was related to his active service, particularly including his presumed exposure to contaminated water at Camp Lejeune. See September 2011 VA Examination. The VA examiner noted an initial diagnosis of hypertension in 2005, well after the Veteran’s active service and nearly a decade after his last period of ACDUTRA or INACDUTRA. With respect to whether the Veteran’s hypertension was related to contaminated drinking water, the examiner opined that the Veteran’s hypertension is less likely than not caused by or a result of exposure to contaminated drinking water with TCE and PCE at Camp LeJeune from 1972 to 1974. The examiner explained that the medical literature does not indicate that hypertension is associated with or caused by exposure to TCE and/or PCE twenty (20) to thirty (30) years prior to onset. The opinion is based on an accurate history and is sufficiently well-reasoned to warrant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no contrary, competent opinion of record. The Veteran may believe that his hypertension is related to an in-service injury, event, or disease. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology of hypertension, and the toxic effects of the contaminants identified in the water at Camp Lejeune. Therefore, the etiology of his hypertension and the alleged relationship to contaminated water at Camp Lejeune is outside the competence of the Veteran in this case because the record does not show that he the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the September 2011 VA examiner’s opinion. The greater weight of the evidence is against the finding that the Veteran’s hypertension is related to his active duty service, including exposure to contaminated water at Camp Lejeune, or that it is related or associated with any disease or injury incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA. Entitlement to service connection for hypertension is denied. 2. Entitlement to service connection for diabetes associated with contaminated water at Camp Lejeune The Veteran contends that his diabetes is related to his military service, particularly including exposure to contaminated water at Camp Lejeune. See May 2015 Board Hearing Tr. at 11-13 (noting onset roughly concurrent with onset of hypertension and testifying onset of “actual diabetes” was “in the late 90s” “right after” he left the Army Reserve). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of diabetes, and evidence shows that he was presumptively exposed to contaminated water at Camp Lejeune, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of diabetes began during service or is otherwise related to an in-service injury, event, or disease. VA and private treatment records, as well as the Veteran’s testimony, show the Veteran was not diagnosed with diabetes until decades after his separation from the Marine Corps and years after his separation from the Army Reserve. See also September 2011 VA Examination (noting diagnosis in 2006); see also September 2011 VA Examination (noting a 2005 diagnosis of hypertension, which the Veteran testified was diagnosed at roughly the same time as his diabetes); May 2015 Board Hearing Tr. at 19-21 (testifying to an initial diagnosis of “pre-diabetes” by a private physician (Dr. P) in the 1990s); February 2019 Report of General Information (documenting the Veteran’s correction of his testimony and indicating that he saw Dr. P. beginning in December 2004). While the Veteran is competent to report having experienced symptoms of diabetes and reports from physicians that he was “borderline” for a diagnosis in the 1990s when he still had periods of ACDUTRA and INACDUTRA, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of diabetes that were related to the exposures at Camp Lejeune. The issue is medically complex, as it requires knowledge of the pathology of diabetes and the interpretation of diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, as noted, the greater weight of the evidence, including the Veteran’s clarification, indicates that the Veteran was first diagnosed years after his most recent periods of ACDUTRA and/or INACDUTRA. There are no medical opinions actually stating any symptoms he had during service were early manifestations of diabetes or that he was “borderline” during a qualifying service period. Further, the September 2011 VA examiner opined that the Veteran’s diabetes is not at least as likely as not related to an in-service injury, event, or disease, including exposure to contaminated drinking water containing toxins like TCE and PCE. The rationale was that the available medical literature and current medical understanding does not indicate that diabetes is associated with or caused by exposure to TCE and/or PCE twenty (20) to thirty (30) years prior to onset of diabetes. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his diabetes is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the etiology and pathology of diabetes and the ability to interpret diagnostic and laboratory testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the September 2011 VA examiner. There are no competent opinions of record linking the Veteran’s diabetes to his active service, including the exposure to contaminated water at Camp Lejeune. The greater weight of the evidence is against finding that the Veteran’s diabetes was incurred during his active service or is otherwise related to his active service, including exposure to contaminated water at Camp Lejeune. The Veteran has not alleged, nor does the evidence support finding, that his diabetes is related to any disease or injury incurred during a period of ACDUTRA or to any injury incurred during a period of INACDUTRA. Entitlement to service connection for diabetes is denied. 3. Entitlement to service connection for stomach condition associated with contaminated water at Camp Lejeune The Veteran contends that his stomach condition is related to his military service, particularly including exposure to contaminated water at Camp Lejeune. See May 2015 Board Hearing Tr. at 15-17 (noting onset in the 2000s) and 22 (indicating belief it may be related to exposures at Camp Lejeune but indicating no physician has made that connection). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of gastroesophageal reflux disease (GERD), and evidence shows that he was presumptively exposed to contaminated water at Camp Lejeune, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of GERD began during service or is otherwise related to an in-service injury, event, or disease. VA and private treatment records, as well as the Veteran’s testimony, show the Veteran was not diagnosed with GERD until decades after his separation from the Marine Corps and years after his separation from the Army Reserve. See also September 2011 VA Examination (noting diagnosis in roughly 2009). While the Veteran is competent to report having experienced symptoms in the 2000s, see May 2015 Board Hearing Tr. at 14, he is not competent to provide an opinion that these symptoms or the later-diagnosed GERD were related to the exposures at Camp Lejeune. The issue is medically complex, as it requires knowledge of the pathology of GERD and stomach pains and the interpretation of diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the September 2011 VA examiner opined that the Veteran’s GERD is not at least as likely as not related to an in-service injury, event, or disease, including exposure to contaminated drinking water containing toxins like TCE and PCE. The rationale was that the available medical literature and current medical understanding does not indicate that GERD is associated with or caused by exposure to TCE and/or PCE twenty (20) to thirty (30) years prior to onset of GERD. Moreover, the examiner acknowledged complaints of stomach pain during the Veteran’s active service, but noted the stomach pains were not attributable to GERD and the symptoms resolved and did not return during service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his GERD is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the etiology and pathology of GERD and the ability to interpret diagnostic and laboratory testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the September 2011 VA examiner. There are no competent opinions of record linking the Veteran’s GERD to his active service, including the exposure to contaminated water at Camp Lejeune. The greater weight of the evidence is against finding that the Veteran’s GERD was incurred during his active service or is otherwise related to his active service, including exposure to contaminated water at Camp Lejeune. The Veteran has not alleged, nor does the evidence support finding, that his GERD is related to any disease or injury incurred during a period of ACDUTRA or to any injury incurred during a period of INACDUTRA. Entitlement to service connection for GERD is denied. Duties to Notify and Assist In the April 2018 Board Decision and Remand, the Board directed the RO to conduct further development to include requesting that the Veteran provide an authorization to obtain private treatment records he identified at his May 2015 Board hearing and obtaining any outstanding VA treatment records. The RO sent a January 2019 Notification Letter requesting that the Veteran complete an authorization for the release of medical records and enclosing the appropriate forms. The Veteran responded by indicating that he actually began treatment with the Dr. P, who he had identified at his hearing, in December 2004 which corresponds to the private treatment records already associated with the claims file. See February 2019 Report of General Information. The Veteran did not return an authorization for release of medical records relating to treatment with Dr. P or any other private physician. With respect to the Board’s request to obtain any outstanding VA treatment records, the RO determined that the Veteran first registered for VA treatment at Salisbury VAMC in September 2008 and his first appointment was in December 2009, which corresponds to the VA records contained in the claims file. The Veteran was notified of these facts in a July 2020 Notification Letter and was given the opportunity to provide additional information to identify any other allegedly outstanding VA treatment records. He did not do so. Based on the foregoing, the Board concludes that VA has complied with the duties to notify and assist with respect to the outstanding issues identified in the April 2018 Board Decision and Remand. The Veteran has not raised any other specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to further discuss VA’s compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.