Citation Nr: 21000305 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-42 145 DATE: January 5, 2021 ORDER Entitlement to service connection for a gastrointestinal/bowel disorder is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran was stationed at Camp Lejeune during the period of time for which exposure to contaminated drinking water has been presumed. 2. The Veteran has not been diagnosed with a chronic gastrointestinal and/or bowel disorder at any point during the appeal period. CONCLUSION OF LAW The criteria for service connection for a chronic gastrointestinal/bowel disorder, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.307 (f), 3.309 (f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from February 1981 to February 1984. The Board previously remanded this case for additional development in September 2018. The matter has now returned to the Board for appellate review. Entitlement to service connection for a gastrointestinal/bowel disorder The Veteran seeks service connection for a gastrointestinal and/or bowel disorder that he contends resulted from his exposure to contaminants in the drinking water at Camp LeJeune during his active military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) 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. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). VA laws and regulations provide that, if a veteran or reservist was exposed to contaminated water at Camp Lejeune, North Carolina during service or training, certain listed diseases are presumptively service connected. Under the new codified 38 C.F.R. § 3.307 (a)(7), certain diseases have been associated with exposure to contaminants in the water supply at Camp Lejeune: (i) For the purposes of this section, contaminants in the water supply means the volatile organic compounds 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; (ii) the diseases listed in § 3.309 (f) shall have become manifest to a degree of 10 percent or more at any time after service; (iii) 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 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; (iv) exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101 (24)(B) and (C). If an individual described in paragraph § (a)(7)(iii) of this section develops a disease listed in §3.309 (f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval or air service. Additionally, under 38 C.F.R. § 3.309 (f), if a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of §3.307 (a)(7), the following diseases shall 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. Turning to the record, the Veteran’s service treatment records (STRs) are silent as to any diagnosis or treatment for a chronic gastrointestinal/bowel disorder during active service. Pursuant to the Board’s September 2018 remand, the Veteran was afforded a VA examination by way of record review to determine the nature and etiology of his claimed chronic gastrointestinal/bowel disorder in July 2020. Apparently contact could not be made to do a telehealth review with the Veteran. The examiner found that the Veteran did not have a diagnosed intestinal condition. Further, the examiner noted that a review of the Veteran’s VA treatment records from November 2010 to May 2020 noted that the Veteran denied appetite changes, nausea/vomiting, dysphagia, abdominal pain, and bowel changes, or bloody stool. Additionally, there were no signs or symptoms attributable to any non-surgical non-infectious intestinal conditions. Also, laboratory testing did not reveal significant abnormalities. Thus it was concluded there was no pertinent chronic pathology. The Veteran was so informed in a supplemental statement of the case and did not respond or provide evidence of chronic impairment. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is competent to report his symptoms abdominal pain. However, an underlying disability related to his abdominal pain has never been identified during the current appeal period. The Board additionally notes that a chronic bowel disorder is not listed among the diseases subject to presumptive service connection associated with toxic water exposure at Camp Lejeune for compensation. There is no other competent medical evidence of record, VA or private, of a chronic bowel disability during the applicable appeal period. In essence, the evidence of a current diagnosis of a chronic bowel disability is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability related to a chronic bowel disability requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of a chronic bowel disability. 38 C.F.R. § 3.159 (a)(1), (2). The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. However, there is no indication that any pain from the Veteran’s claimed bowel disability, has had any functional impairment of earning capacity for the Veteran. In light of the absence of any competent evidence of any chronic gastrointestinal/bowel disability, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND The Veteran contends that he injured his right shoulder while on active military service and he seeks entitlement to service connection. In May 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed right shoulder disability. At the time of the examination, the examiner found that the Veteran had a current diagnosis of osteoarthritis of the right shoulder. Next, pursuant to the Board’s January 2020 remand, another VA examination was conducted in August 2020. However, at the time of the examination, the examiner found that the Veteran did not have a current diagnosis for his right shoulder disability. Nevertheless, the examiner went on to opine that the Veteran’s claimed right shoulder disability was less likely than not related to his active military service because the physical examination revealed normal findings. However, this opinion is inadequate as it fails to reconcile the finding of no diagnosis of a right shoulder disability with the May 2013 finding that the Veteran had osteoarthritis of the right shoulder. Service connection may be awarded for a disability if the claimant had the disability at the time the claim was filed or during the pendency of that claim, even if no disability is present at the time of the claim’s adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the Board finds that an additional remand is necessary to obtain a new opinion in which the examiner reconciles the discrepancies noted above. The matters are REMANDED for the following action: Return the VA claims file to the August 2020 VA examiner to obtain an addendum opinion addressing the nature and etiology of any right shoulder disorder. If this examiner is not available, transfer the file to another appropriate clinician. A new VA examination should be ordered if deemed necessary by the examiner. Based on a review of all the evidence of record and the Veteran’s elicited history, the examiner is asked to: a) Provide a diagnosis for any right shoulder disorder that has existed during the pendency of the claim (since January 2011). Identify all current right shoulder disorders. b) If no current right shoulder disorder can be identified, the examiner should specifically comment on the propriety of the Veteran’s prior treatment relating to a right shoulder disorder, to include prescriptions for any right shoulder disorder and the previous notation of arthritis. c) For each diagnosed right shoulder disorder, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to an in-service injury, event or disease. In providing this opinion, the examiner should specifically address the Veteran’s contention that he injured his right shoulder during a football game while in active service. A complete rationale should be provided for any opinion rendered. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.