Citation Nr: 21001484 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-13 461 DATE: January 8, 2021 ORDER Entitlement to service connection for hypothyroidism is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s hypothyroidism did not have onset in service or within one year of service discharge, nor is it related to any aspect of service, to include exposure to Agent Orange and contaminated water at Camp Lejeune. 2. The Veteran’s hypertension did not have onset in service or within one year of service discharge, nor is it related to any aspect of service, to include exposure to Agent Orange and contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypothyroidism, to include as due to exposure to Agent Orange and contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for entitlement to service connection for hypertension, to include as due to exposure to Agent Orange and contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to January 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an October 2019 videoconference hearing. A transcript of the hearing has been associated with the Veteran’s claims file. This matter was previously before the Board in December 2019, when it was remanded for additional evidentiary development. In compliance with the remand directives, an addendum opinion was acquired. The directives have been substantially complied with, and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a 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). Certain chronic diseases, such as hypertension and hypothyroidism, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service, that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. A Veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. Because the Veteran in this case served in Vietnam, exposure to herbicide agents has been conceded. If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 5(1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. Veterans who served no less than 30 days at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 are presumed to have been exposed during such service to contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307 (a)(7)(iii). For Veterans meeting these service requirements, the following diseases shall be service-connected if manifested to a compensable degree at any time after service even though there is no record of such disease during service: kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). Because the Veteran in this case served at Camp Lejeune for more than 30 days, exposure to contaminated water has been conceded. 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hypothyroidism The Veteran seeks service connection for hypothyroidism and contends that his disability is due to his exposure to contaminated water while stationed at Camp Lejeune. The Veteran also asserts that his hypothyroidism is secondary to Agent Orange exposure. As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has hypothyroidism. Hypothyroidism is listed under the Veteran’s diagnoses in both VA and private treatment records. Concerning presumptive service connection due to Agent Orange exposure, the Veteran is presumed to have been exposed to during his service in Vietnam. However, hypothyroidism is not among the disorders entitled to presumptive service connection. 39 C.F.R. § 3.309 (e), Note 3. As such, the Agent Orange presumption is insufficient to fill the nexus gap in the Veteran’s service connection claim for hypothyroidism. Concerning presumptive service connection due to contaminated waters at Camp Lejeune, the Veteran is presumed to have been exposed during his service at Camp Lejeune to contaminants in the water supply. However, hypothyroidism is not among the eight diseases entitled to presumptive service connection based on such exposure. 38 C.F.R. § 3.309 (f). As such, the Camp Lejeune contaminant presumption is insufficient to fill the nexus gap in the Veteran’s service connection claim for hypothyroidism. Furthermore, while hypothyroidism is subject to presumptive service connection as a chronic disease, the record is clear that the Veteran’s hypothyroidism was initially identified over 40 years after active duty service. As there is no showing of hypothyroidism in service or to a compensable degree in the year after service, presumptive service connection for hypothyroidism as a chronic disease is not warranted. 38 U.S.C. § 1112 (a); 38 C.F.R. § §§ 3.307, 3.309(a). Notwithstanding the foregoing, even when presumptive service connection is not appropriate, a Veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee, supra. The Veteran’s service treatment records (STRs) contain no complaints, treatment, findings or diagnosis consistent with hypothyroidism. At separation in January 1969, the report of medical examination noted a normal clinical evaluation of the head, face, neck and endocrine system. The Veteran has submitted an April 2014 private disability benefits questionnaire (DBQ). The private physician noted a diagnosis of hypothyroidism, requiring continuous medication. The Veteran’s eyes and neck were noted as normal. The private physician noted a June 2012 thyroid ultrasound showing no nodules. No etiology opinion was provided. A VA medical opinion was acquired in March 2020. Following a review of the Veteran’s claims file and medical records, the VA examiner opined that the Veteran’s hypothyroidism is less likely than no incurred in or caused by service, to include exposure to Agent Orange and contaminated waters in Camp Lejeune. In support of this opinion, the VA examiner reasoned that the Veteran’s STRs are silent for a hypothyroidism condition and there is no evidence to support that the condition became manifest within the appropriate timeframe of discharge from active service; with the Veteran being diagnosed in 2012, over 40 years post service. Furthermore, the VA examiner noted that hypothyroidism is neither an Agent Orange nor Camp Lejeune qualifying condition. The Veteran has submitted a November 2020 private medical opinion. The Veteran’s private physician opined that the Veteran’s ingestion of contaminated drinking water at least as likely as not caused his hypothyroidism. In support of this opinion, the private physician stated that he researched the effects of VOCs as described in drinking water at Camp Lejeune. However, the Board does not find this opinion probative because the preponderance of the evidence weighs against finding that an injury, event, or disease occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). First, the Veteran’s STRs are silent for any complaints or diagnoses of hypothyroidism or associated symptomatology. Second, the private physician did not have access to the Veteran’s claims file and only reviewed the Veteran’s DD 214. Third, the private physician did not provide any additional information as to his research on the effect of VOCs. Finally, as discussed above, hypothyroidism is not among the eight diseases entitled to presumptive service connection based on contaminated water exposure at Camp Lejeune. 38 C.F.R. § 3.309 (f). Following a review of the evidence, the Board finds that entitlement to service connection for hypothyroidism is not warranted. The Board finds the VA examiner’s opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the STRs and current medical records, and the opinion is consistent with other evidence of record. Moreover, the examiner provided adequate rationale for the opinion. Accordingly, the VA examiner’s opinion is entitled to great probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Significantly, there is no competent medical opinion of record linking the current hypothyroidism to service. The Board has considered the statements from the Veteran. He is certainly competent to report as to the observable symptoms he experiences and their history, but the ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Layno v. Brown, 6 Vet. App. 1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the specific, reasoned opinions of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided rationale for the conclusions reached. For the reasons set forth above, the Board finds that the most probative evidence weighs against a finding that the Veteran’s hypothyroidism is related to his military service, including exposure to Agent Orange or contaminated water at Camp Lejeune. Thus, service connection for hypothyroidism is denied. As such, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107 (b); Gilbert, supra. 2. Entitlement to service connection for hypertension The Veteran seeks service connection for hypertension and contends that his disability is due to his exposure to contaminated water while stationed at Camp Lejeune. The Veteran also asserts that his hypertension is secondary to exposure to Agent Orange and contaminated water at Camp Lejeune. The question for the Board is whether the Veteran has a chronic disease that manifested in service or to a compensable degree within one year of separation from service, whether continuity of symptomatology has existed since service, or whether he has a disease associated with exposure to Agent Orange or contaminants in the water supply at Camp Lejeune. The term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater. The term 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. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has hypertension. Hypertension is listed under the Veteran’s diagnoses in both VA and private treatment records. Concerning presumptive service connection due to Agent Orange exposure, the Veteran is presumed to have been exposed to during his service in Vietnam. However, hypertension is not among the disorders entitled to presumptive service connection. 39 C.F.R. § 3.309 (e), Note 3. As such, the Agent Orange presumption is insufficient to fill the nexus gap in the Veteran’s service connection claim for hypertension. Concerning presumptive service connection due to contaminated waters at Camp Lejeune, the Veteran is presumed to have been exposed during his service at Camp Lejeune to contaminants in the water supply. However, hypertension is not among the eight diseases entitled to presumptive service connection based on such exposure. 38 C.F.R. § 3.309 (f). As such, the Camp Lejeune contaminant presumption is insufficient to fill the nexus gap in the Veteran’s service connection claim for hypertension. Furthermore, while hypertension is subject to presumptive service connection as a chronic disease, the record is clear that the Veteran’s hypertension was initially identified over 20 years after active duty service. As there is no showing of hypertension in service or to a compensable degree in the year after service, presumptive service connection for hypertension as a chronic disease is not warranted. 38 U.S.C. § 1112 (a); 38 C.F.R. § §§ 3.307, 3.309(a). Notwithstanding the foregoing, even when presumptive service connection is not appropriate, a Veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee, supra. The Veteran’s service treatment records (STRs) contain no complaints, treatment, findings or diagnosis consistent with hypertension. Recorded blood pressure readings in the Veteran’s STRs include 132/88 and 120/84. See December 1968 and January 1969 STRs. The Veteran’s January 1969 separation examination shows a normal heart and vascular system upon clinical evaluation and the Veteran denied experiencing high blood pressure. A VA medical opinion was acquired in March 2020. Following a review of the Veteran’s claims file and medical records, the VA examiner opined that the Veteran’s hypertension is less likely than no incurred in or caused by service, to include exposure to Agent Orange and contaminated waters in Camp Lejeune. In support of this opinion, the VA examiner reasoned that the Veteran’s STRs are silent for hypertension and there is no evidence to support that the condition became manifest within the appropriate timeframe of discharge from active service, being diagnosed in the 1990s, over 20 years post service. Furthermore, the VA examiner noted that hypertension is neither an Agent Orange nor Camp Lejeune qualifying condition. The Board finds the VA examiner’s opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the service treatment records and current medical records, and the opinion is consistent with other evidence of record. Moreover, the examiner provided adequate rationale for the opinion. Accordingly, the VA examiner’s opinion is entitled to great probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Significantly, there is no competent medical opinion of record linking the current hypertension to service. The Board has considered the statements from the Veteran. He is certainly competent to report as to the observable symptoms he experiences and their history, but the ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Layno v. Brown, 6 Vet. App. 1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the specific, reasoned opinions of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided rationale for the conclusions reached. For the reasons set forth above, the Board finds that the most probative evidence weighs against a finding that the Veteran’s hypertension is related to his military service, including exposure to Agent Orange or contaminated water at Camp Lejeune. Thus, service connection for hypertension is denied. As such, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107 (b); Gilbert, supra. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.