Citation Nr: 21001035 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-24 136 DATE: January 6, 2021 ORDER The claim of entitlement to service connection for rheumatoid arthritis is denied. The claim of entitlement to service connection for diabetes is denied. The claim of entitlement to service connection for a kidney disability, claimed as renal toxicity, is denied. REMANDED The claim of entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran’s rheumatoid arthritis 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 kidney disability, claimed as renal toxicity, 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 service connection for rheumatoid arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 17.400. 2. The criteria for service connection for diabetes are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 17.400. 3. The criteria for service connection for a kidney disability, claimed as renal toxicity, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 17.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from April 1963 to April 1967. The instant matter is on appeal from an April 2015 rating decision. In the Veteran’s May 2015 Substantive Appeal, he initially requested a videoconference hearing before a Veterans Law Judge. In August 2020, in a correspondence with the Regional Office, the Veteran withdrew his request for a hearing. Accordingly, adjudication may proceed on the merits. At the outset, after reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as reflected in the issues section above. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record). Therefore, in consideration of the holdings in Brokowski and Clemons, the Board has recharacterized the Veteran’s claim of entitlement to service connection for spinal stenosis as a claim of entitlement to service connection for a back disability. 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). Based on analyses of potential exposures at Camp Lejeune and scientific studies involving these chemicals, the National Academy of Sciences National Research Council (NRC) provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants TCE, PCE or a solvent mixture. See 2009 NRC report - “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.” Effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1953 to December 1987. See 82 Federal Register 4173 (January 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 eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease. 38 C.F.R. §§ 3.307 (a)(7), 3.309(f); id. The NRC Report additionally classified additional disabilities into the category of limited or suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These disabilities, listed under 38 C.F.R. § 17.400, are entitled to hospital care and medical services. Even if a claimant is not entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. Cf. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). 1. The claim of entitlement to service connection for rheumatoid arthritis The Veteran contends that he is entitled to service connection for rheumatoid arthritis. 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 rheumatoid arthritis, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service or is otherwise related to an in-service injury, event, or disease, to include exposure to contaminated water at Camp Lejeune. The Veteran’s February 1963 enlistment examination does not reflect any preexisting disabilities related to those presently on appeal. His service treatment records do not reflect a diagnosis of rheumatoid arthritis. The March 1967 separation examination is silent with respect to rheumatoid arthritis. VA treatment records show the Veteran was not diagnosed with rheumatoid arthritis until 1999, decades after his separation from service. VA treatment records reflect ongoing treatment of the disability since its diagnosis. The symptoms noted in these records include joint pain and occasional muscle stiffness. The Veteran is competent to report having experiencing symptoms of rheumatoid arthritis. In this case, the Veteran has not provided statements that would indicate an onset of related symptomatology during service. Instead, he argues that his rheumatoid arthritis is related to his conceded exposure to contaminated water at Camp Lejeune. Rheumatoid arthritis has not been found to be presumptively related to this exposure, nor did NRC find that it fell into the category of limited or suggestive evidence of an association with exposure to contaminated water. The Veteran is not competent to provide an opinion as to the etiology of his rheumatoid arthritis. The issue is medically complex, as it requires specialized medical education and training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). 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. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As he is not competent to relate his rheumatoid arthritis to contaminated water exposure at Camp Lejeune, his statements to that effect cannot be afforded probative weight overall. As there is no indication that the Veteran has a present disability stemming from active duty service, an examination is not required for the purposes of adjudication. While the McLendon factors set a low bar to trigger an examination pursuant to VA’s duty to assist, an examination is not required every time a claim is filed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is only required when necessary to decide a claim. Despite the permissive language of VA’s duty to assist, the Court has stated that “[i]f Congress had wanted the Secretary to automatically provide an examination on all possible theories, then section 5103A would not read the way it does.” Robinson v. Peake, 21 Vet. App. 545, 553 (2008). See also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a claimant’s mere “conclusory generalized statement” that an in-service illness caused his current disability did not trigger VA’s requirement to obtain an examination, and it rejected the theory “that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues”). In this case, the Veteran has not provided evidence, such a supporting medical article or statement that a clinician informed him about a possible chemical exposure nexus, to meet the low nexus standard for triggering VA’s duty to assist in furnishing a medical opinion or examination. Contemporaneous VA treatment records do not in any way suggest or indicate a chemical exposure etiology for his rheumatoid arthritis. The Board also notes the significant time lapse between the conceded chemical exposures and apparent onset of this disability. Based on this evidence of record, the Board finds that the Veteran’s chemical exposure nexus assertions are most accurately characterized as conclusory generalized lay statements as contemplated in Waters, supra. They are not sufficient to meet the low nexus threshold in triggering VA’s duty to furnish an examination or opinion for these claims. Id. Accordingly, a VA medical opinion or examination regarding a chemical exposure nexus is not required for this claim, and the RO did not err in its duty to assist by failing to provide an examination. Based on the foregoing, the claim of entitlement to service connection for rheumatoid arthritis, to include as due to exposure to contaminated water at Camp Lejeune, is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. The claim of entitlement to service connection for diabetes The Veteran contends that he is entitled to service connection for diabetes. 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, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service or is otherwise related to an in-service injury, event, or disease, to include exposure to contaminated water at Camp Lejeune. The Veteran’s February 1963 enlistment examination does not reflect preexisting disabilities related to those presently on appeal. His service treatment records do not reflect a diagnosis of diabetes or abnormal blood glucose findings. The March 1967 separation examination is silent with respect to diabetes. VA treatment records show the Veteran was not diagnosed with diabetes until 2002, decades after his separation from service. VA treatment records reflect ongoing treatment of the disability since its diagnosis. The Veteran is competent to report having experiencing symptoms of diabetes. In this case, the Veteran has not provided statements that would indicate an onset of related symptomatology during service. Instead, he argues that his diabetes is related to his conceded exposure to contaminated water at Camp Lejeune. Like rheumatoid arthritis, diabetes has not been found to be presumptively related to this exposure, nor did NRC find that it fell into the category of limited or suggestive evidence of an association with exposure to contaminated water. The Veteran is not competent to provide an opinion as to the etiology of his diabetes. The issue is medically complex, as it requires specialized medical education and training. Jandreau, 492 F.3d at 1377, 1377. 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. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As he is not competent to relate his diabetes to contaminated water exposure at Camp Lejeune, his statements to that effect cannot be afforded probative weight overall. As there is no indication that the Veteran has a present disability stemming from active duty service, an examination is not required for the purposes of adjudication. While the McLendon factors set a low bar to trigger an examination pursuant to VA’s duty to assist, an examination is not required every time a claim is filed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed in detail in the previous section, a VA examination is only required when necessary to decide a claim. In this case, the Veteran has not provided evidence, such a supporting medical article or statement that a clinician informed him about a possible chemical exposure nexus, to meet the low nexus standard for triggering VA’s duty to assist in furnishing a medical opinion or examination. Contemporaneous VA treatment records do not in any way suggest or indicate a chemical exposure etiology for his diabetes. The Board also notes the significant time lapse between the conceded chemical exposures and apparent onset of this disability. Based on this evidence of record, the Board finds that the Veteran’s chemical exposure nexus assertions are most accurately characterized as conclusory generalized lay statements, which are insufficient to meet the low nexus threshold in triggering VA’s duty to furnish an examination or opinion for these claims. Accordingly, the RO did not err in its duty to assist by failing to provide an examination. Based on the foregoing, the claim of entitlement to service connection for diabetes, to include as due to exposure to contaminated water at Camp Lejeune, is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not for application. 3. The claim of entitlement to service connection for a kidney disability, claimed as renal toxicity The Veteran contends that he is entitled to service connection for a kidney disability, claimed as renal toxicity. 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 the Veteran does not have a present diagnosis of a kidney disability that began during service or is otherwise related to an in-service injury, event, or disease, to include exposure to contaminated water at Camp Lejeune. The Veteran’s February 1963 enlistment examination does not reflect preexisting disabilities related to those presently on appeal. His service treatment records do not reflect a diagnosis or complaints of a kidney disorder. The March 1967 separation examination is silent with respect to kidney complications. VA treatment records do not reflect a kidney disability during the period of time on appeal. In April 2015, a specialized medical opinion was obtained from a designed subject matter expert as kidney cancer is one of the presumptive conditions of contaminated water exposure, and renal toxicity has been assigned to the category of limited or suggestive association. The specialist was unable to identify a diagnosis of chronic kidney disease related to exposure to contaminated water in any clinically meaningful way. Creatinine and blood urea nitrogen were consistently within the normal range. On discharge, the Veteran’s urinalysis was noted as normal without protein or blood. Microscopic examination, similarly, was unremarkable. An exposure assessment was provided based upon the Veteran’s presence at Camp Lejeune. The specialist concluded that, although he had some exposure to organic solvents, this exposure was over five orders of magnitude below those associated with kidney damage. The record showed no evidence of kidney disease on separation, and his creatinine and BUN were unremarkable over the last five years. In addition, the Veteran has two well-recognized causes of kidney damage, i.e. diabetes and hypertension, with evidence of poor control in one of those disabilities. Thus, if he should develop kidney damage, these represent far more likely causes of future kidney damage than an exposure almost 50 years in the past. The specialist concluded that it was less likely as not that the Veteran’s claimed kidney disorder is related to his exposure to contaminated water exposure at Camp Lejeune. The Veteran is competent to report having experiencing observable symptomatology associated with a disability; however, in this case, the Veteran has not provided statements that would indicate an onset of related symptomatology during service. Instead, he argues that his kidney disorder, claimed as renal toxicity, is related to his conceded exposure to contaminated water at Camp Lejeune. Kidney cancer has been found to be presumptively related to contaminated water exposure, and renal toxicity is eligible for health care under 38 C.F.R. § 17.400. However, the Veteran is not competent to provide an opinion as to the etiology of his disability. The issue is medically complex, as it requires specialized medical education and training. Jandreau, 492 F.3d at 1377, 1377. 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. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As he is not competent to relate his disability to contaminated water exposure at Camp Lejeune, his statements to that effect cannot be afforded probative weight overall. Instead, the Board affords significant probative weight to the findings of the specialist in the April 2015 medical opinion. The authoring physician is a subject matter expert in Camp Lejeune exposure. He thoroughly reviewed the Veteran’s claims file, including his service and post-service records. The specialist determined that the Veteran did not have a present diagnosis of a kidney disability or renal toxicity, noting that his bloodwork through the period on appeal had been normal. Further, even if the Veteran did develop kidney damage, it was more likely related to his diabetes and hypertension, both of which are not presently service connected. The specialist provided thorough rationales for all of the opinions in the report, as well as provided a significant list of medical references in support of his findings. By virtue of his training and specialization, the subject matter expert is competent to provide a medical opinion on the disability, and his opinion is thoroughly substantiated by the record, thus supporting significant credibility overall. As a result, the April 2015 medical opinion is highly probative on the issue. Based on the foregoing, the claim of entitlement to service connection for a kidney disability, claimed as renal toxicity, to include as due to exposure to contaminated water at Camp Lejeune, is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not for application. REASONS FOR REMAND 1. The claim of entitlement to service connection for a back disability is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain a VA examination addressing the Veteran’s back disability claim. The Veteran’s service treatment records reflect a diagnosis of mild lordosis in April 1963, which was not noted on his enlistment examination two months prior, but instead found when he reported to boot camp. VA treatment records describe an extensive history of back pain, including a diagnosis of spinal stenosis around 1974. Thus, there is at least an indication that the Veteran’s present back disability may be related to the in-service finding of lordosis and subsequent post-service diagnosis. An examination is necessary on remand. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 2. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of his claimed back disability. The examination may be conducted via telehealth, or similar means, if practicable. A copy of the claims file should be made available to the examiner, and the examiner should consider the Veteran’s subjective reports of symptomatology associated with the disability. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) Based upon the medical and lay evidence of record, is there clear and unmistakable evidence (such that reasonable minds could not differ) that a back disability preexisted active duty service? (b.) If you determine that any back disability clearly and unmistakably preexisted service, was the back disability clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during service? (c.) If it is found that there is clear and unmistakable evidence that the Veteran’s back disability existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, please clearly indicate the basis/evidence supporting your conclusions. (d.) If, however, you do not find that there is clear and unmistakable evidence that the Veteran’s back injury preexisted military service OR that any pre-existing condition was not aggravated in service, you must take as conclusive fact that the Veteran’s back injury did not exist prior to any period of qualifying service. Note: The term “clear and unmistakable” means that the evidence is undebatable. To contrast, the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it (e.) After presuming such, please then opine as to whether it is at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s back disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.