Citation Nr: 21003459 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-05 604 DATE: January 21, 2021 ORDER Entitlement to service connection for lumps and/or growths on the tonsils and esophagus, to include as due to Camp Lejeune contaminated water (CLCW), is denied. FINDING OF FACT The evidence of record is against finding that the Veteran’s lumps and/or growths on the tonsils and esophagus occurred in, or is the result of, his period of active duty service, to include as due to CLCW. CONCLUSION OF LAW The criteria for entitlement to service connection for lumps and/or growths on the tonsils and esophagus, to include as due to CLCW, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(7), 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1976 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. A Board hearing was conducted at the RO in Cleveland, Ohio. A transcript of this hearing is contained within the electronic claims file. See October 3, 2018, Hearing Transcript (Tr.). This claim previously was remanded at the Veteran’s request so that the RO could review medical evidence added to the claims file since the December 2015 Statement of the Case (SOC). See September 16, 2019, Correspondence. In April 2020, VA issued a Supplemental SOC (SSOC), reviewing the additional evidence and continuing its denial of this claim. Thus, with VA having complied with all prior remand directives, the Board may proceed to adjudication. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). At all times during this appeal, the Veteran has maintained that his lumps and/or growths on his tonsils and esophagus are due to his exposure to contaminants at Camp Lejeune. See January 19, 2016, VA Form 9; September 16, 2015, Notice of Disagreement (NOD); August 1, 2014 VA Form 21-4138. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). A presumption of service connection arises for certain diseases if the disease manifests itself to a degree of 10 percent or more following exposure to contaminants present in the water supply at Camp Lejeune. Service at Camp Lejeune means no less than 30 days of service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. The applicable diseases are 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. §§ 3.307(a)(7), 3.309(f). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Service treatment records (STRs) do not contain complaints of, treatment for, or diagnosis of any condition of the tonsils or esophagus. The May 1979 separation examination noted a normal clinical evaluation, and the Veteran indicated he was in good health on the corresponding report of medical history. Post-service VA medical center (VAMC) records first show a tonsillar lesion in May 2003. A June 2003 entry notes that the following: Examination of his oral cavity, he has a somewhat geographic tonsil on the right side with a small accessory portion of tonsil near the superior pole that is somewhat hidden behind a permanent anterior tonsillar pillar. On the left side, however, he has a medium size approximately 1 cm papilloma that appears to be rather benign from the superior pole of his left tonsil. Otherwise, he has normal elevation of his palate. No other abnormalities. On flexible nasal laryngoscopy, it is noted that he has quite a bit of lingual tonsils filling his vallecula on the base of his tongue. In addition, I am able to see the papilloma on the left side of the posterior tonsil. Rest of the examination is relatively normal with a normal supraglottis, glottis, normal glottic movement and no abnormality is suggestive of mucosal lesion. By January 2004, the Veteran was diagnosed with left tonsillar papilloma. By July 2008, the Veteran had a diagnosis of peptic ulcer and gastroesophageal reflux disease (GERD). An August 2014 otolaryngology note revealed the following assessment: This is a 56-year-old gentleman with tonsillary hypertrophy and resulting dysphagia. He is also chronically immunosuppressed. He also has symptoms consistent with eustachian tube dysfunction. For his eustachian tube dysfunction, I have prescribed him flunisolide nasal spray and discussed the proper timing and administration of this medication. For his tonsillar hypertrophy and dysphagia, he would be a candidate for a tonsillectomy and we discussed the risks and benefits of this surgery and he would like to proceed. We have recommended that he would be cleared by his rheumatologist as far as timing for the surgery and medication use. He is scheduled to see them in late September, so we have tentatively scheduled his surgery for October. He has placed a new consult for Rheumatology to evaluate the patient. He will follow up with us in 6 weeks time, at which time we will obtain consent, as this will be within the 30 day window of his surgery. In October 2014, the Veteran underwent a bilateral tonsillectomy. A November 2014 note indicates that the Veteran returned for bilateral infratonsillar abscesses and bilateral tonsil lithiasis, as well as polarizable material within the tonsil crypts. There was a moderate amount of inferior pole tonsillar issue on the left side, but the right tonsillar fossa was clean. His records now reflect that he struggles with chronic tonsillitis. By February 2015, it was noted that the Veteran had a small hiatal hernia. Examination from April 2016 revealed sides, somewhat larger on the left than the right at the inferior pole, as well as a small remnant of tonsil tissue on the anterior pillar on the right side. This did not appear to be pathologic. It did not appear to be retaining any fluid. It did not appear that surgical removal was warranted. Tongue base was normal to both flexible laryngoscopy as well as anterior pharyngeal examination. In an October 2016 speech pathology consultation, the Veteran endorsed difficulty swallowing solids and liquids, which he describes as a sticking sensation once–twice a week and ongoing for many years. His provider noted that the Veteran’s esophagus distends well and has normal motility. There is no mass stricture or ulceration. There is a small sliding hiatal hernia without reflux or esophagitis. A 13 millimeter (mm) in diameter barium tablet easily passed from the oropharynx into the esophagus and stomach. Cursory imaging of the esophagus conducted in the upright position revealed slowed movement of thin liquid through the mid-to-distal esophagus with retrograde flow to the mid-esophagus. Oropharynx swallow is within normal limits. Esophageal-phase findings reveal evidence of dysmotility with retrograde flow from the distal esophagus, which warrants further assessment. In December 2016, the Veteran had his esophagus biopsied. The gastroesophageal junction biopsy revealed squamocolumnar junctional mucosa with mild acute and chronic inflammation and focal macrophages infiltrate in the lamina propria; the biopsy was negative for intestinal metaplasia or dysplasia. The esophagus distal biopsy revealed squamous mucosa with focal intraepithelial lymphocytic infiltrate with no evidence of eosinophilic esophagitis. The last biopsy—the proximal/mid esophagus—also showed squamous mucosa with focal intraepithelial lymphocytic infiltrate with no evidence of eosinophilic esophagitis. A February 2019 VA examination report for stomach and duodenal conditions (not including GERD or esophageal conditions) noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The examiner noted that the Veteran had a diagnosis of a duodenal (small intestine) ulcer. At his hearing, the Veteran testified that he has difficulties swallowing due to these lumps and growths. See Tr. at 2. The Board recognizes that the Veteran currently suffers from chronic tonsillitis with occasional benign growths and GERD. Although the latter was not claimed, it is a condition of the esophagus. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Turning to the second element of service connection, the Board also recognizes that the Veteran’s military personnel records (MPRs) verify that he served at Camp Lejeune. Thus, the Board concedes that the Veteran was exposed to CLCW, satisfying the second element of service connection. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Tonsillitis or GERD, however, are not conditions that are presumed related to CLCW per VA regulations. Therefore, the application of presumptive service connection is not applicable. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Simply because the presumption does not apply does not mean that the Veteran is foreclosed from arguing that CLCW directly caused his conditions. Thus, the Board will proceed on a direct-service-connection analysis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Tuning to the third element of service connection, the Board finds that the evidence of record is insufficient. There is no medical opinion of record, either VA or private, discussing a possible relation between the Veteran’s conditions and his exposure to CLCW. While VA sometimes is required by law to provide the Veteran with an examination and/or opinion, for the reason set forth below such development is not warranted here. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). Running through the McLendon factors in this case, the Board finds that VA’s duty to provide an examination is not triggered for failure to satisfy the third element. There is no evidence in the claims file that indicates that the Veteran’s disabilities or symptoms could be related to CLCW. While the Veteran many times has advanced his belief that the two are related, those mere assertions, as generalized, conclusory statements are not enough to satisfy McLendon’s third element. See Waters v. Shinseki, 601 F.3d 1274, 1278–79 (Fed. Cir. 2010) (“Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case. If Congress had intended that requirement, presumably it would have explicitly so provided.”). The Veteran further contends that, without a proper examination, VA cannot say whether these lumps/growths are cancerous. See NOD. First, the Board notes that the Veteran has undergone substantial biopsies of his tonsils, and no indication of cancer was found. Second, even if these lumps or growths were cancerous, the record still contains no evidence, other than the Veteran’s own beliefs, which the Board previously explained were inadequate, to at least indicate that they are related to CLCW. Thus, the Board still finds that no separate examination and opinion are warranted. Thus, the Board finds that VA’s duty to provide an examination and opinion have not been triggered. As the Veteran himself has failed to provide the Board with a competent and credible medical opinion positively relating his conditions to CLCW, the third element of service connection cannot be established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Veteran’s claim for entitlement to service connection for lumps and/or growths on the tonsils and esophagus, to include as due to CLCW, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.