Citation Nr: 21003789 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-14 764 DATE: January 22, 2021 ORDER Entitlement to service connection for bilateral foot disabilities, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current bilateral foot disabilities began during active service or are otherwise related to service, to include as due to exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for bilateral foot disabilities, including as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1981 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In a September 2018 Board decision, the Veteran's claim was remanded for additional development. This appeal has now been returned to the Board for further appellate consideration. As a preliminary matter, the Board notes that the Veteran initially filed a claim for plantar fasciitis. This claim has been expanded to include other or any bilateral foot disabilities raised by the record and the Veteran statements. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may be granted on a presumptive basis for diseases listed in §3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. §§ 3.307, 3.309; 38 U.S.C. §§ 1101, 1112, 1113. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to Camp Lejeune contaminated water (CLCW). In order to establish presumptive service connection for a disease associated with exposure to CLCW, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309 (f). The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (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, (8) Bladder cancer. 38 C.F.R. § 3.309 (f). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for bilateral foot disabilities, to include as due to exposure to contaminated water at Camp Lejeune. The Veteran contends that his bilateral foot disabilities, including plantar fasciitis, onychomycosis, keratosis, dermatophytosis, and vesicular dermatitis, had their onset during active service or are otherwise related to active service, including as due to exposure to contaminated water at Camp Lejeune. The Veteran's service records reveal he was stationed at Camp Lejeune, North Carolina for more than 30 days during the potential exposure period. Therefore, the Veteran's exposure to CLCW is conceded. As an initial matter, the Board notes that the Veteran’s claimed foot disabilities are not included on the list of diseases subject to presumptive service connection for exposure to CLCW. See 38 C.F.R. § 3.309 (f). Therefore, the Veteran's claimed disabilities are not presumed to be related to his exposure to CLCW during his service. However, the Veteran may still show entitlement to service connection for his foot disabilities on a direct basis, including as due to exposure to CLCW. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A review of the Veteran's service treatment records reveals that the Veteran was treated for a plantar wart in October 1983. There are no other complaints of, treatment for, or a diagnosis of foot disabilities in the Veteran's service records. The Veteran has reported that his foot condition began in active service following a four-day training exercise in wet boots and gear. During his May 2018 hearing, the Veteran testified that he has had his current bilateral foot conditions since service. The Veteran was provided a VA examination for foot conditions in January 2020. The Veteran was diagnosed with plantar fasciitis, onychomycosis, keratosis, dermatophytosis, and vesicular dermatitis. The examiner found that the Veteran’s claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by an in-service, injury, event, or illness, including his in-service plantar wart. The examiner noted that there was no other documentation of treatment for either foot during active service. The examiner also found that the weight of medical literature does not support a relationship between plantar warts and any of the Veteran’s claimed conditions. The Veteran was also provided a VA examination for skin diseases in January 2020. The Veteran was diagnosed with vesicular dermatitis, dermatophytosis (tinea pedis and tinea unguium), plantar keratosis, and onychomycosis. The Veteran reported a rash on his left foot with itching and burning during service around 1982. The examiner found that the Veteran’s vesicular dermatitis, dermatophytosis (tinea pedis and tinea unguium), plantar keratosis, and onychomycosis are less likely than not incurred in or caused by an in-service event or injury. The examiner noted that the Veteran’s service records do not show treatment for any foot or skin conditions other than a plantar wart. The examiner also noted that the Veterans treatment records are silent for any foot condition for over 20 years. The Veteran was also provided a VA examination to specifically address the Veteran’s claims regarding exposure to CLCW. The examiner noted that the Veteran had approximately 392 days of exposure to CLCW. The examiner found that, in the context of available scientific literature, it is not at least as likely as not (50/50 probability) that the Veteran’s onychomycosis, keratosis, dermatophytosis, and vesicular dermatitis of foot are related to the CLCW. The examiner provided a long and detailed rationale for his opinion. The examiner specifically addressed the nature of the Veteran’s claimed disabilities, including the causes and risk factors associated with each. The examiner stated that it is possible that he may have experienced several or most of the noted risk factors in his everyday life, however, none of these activities are related to the toxins present in CLCW. The examiner reviewed and cited an exhaustive list of epidemiological and toxicological studies and found no documented relationship between the Veteran’s claimed disabilities and CLCW. The Board acknowledges the request from the Veteran’s representative to remand this case for an additional examination to address the Veteran’s statements regarding his wet boots during a training exercise. However, the record indicates that the examiners reviewed the Veteran’s entire case file, including his statements, and the January 2020 examiners both interviewed the Veteran as to the onset of his conditions. Additionally, the instructions provide for the Veteran’s first VA examination included the Veteran’s statements regarding wet boots during a training exercise. Thus, the Board finds that an additional examination is not warranted based upon the facts of this case. The Veteran has undergone extensive medical evaluations of his claims. The Board finds the three VA examination, overall, to be probative as to the etiology of the Veteran's bilateral foot disabilities. The examinations were supported by compelling rationales; review and citation of current medical literatures; detailed examinations; thorough review of the Veteran's record and relevant history; and some of the Veteran's own statements within the evaluations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). We can not ignore such evidence, or assume that one more examination would provide a basis to grant this claim. The duty to assist has been clearly met. It is important to note that no etiological opinions or suggestions are contained in the record that relate the Veteran’s bilateral foot disabilities to service, including exposure to CLCW. Here, there is no competent evidence of a nexus between service and the Veteran’s bilateral foot conditions. The only evidence of record in support of such a nexus is the Veteran’s lay opinion that these conditions are due to service. To the extent the Veteran’s statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran’s assertions as to a relationship between this condition and service are of little probative value. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. The most probative medical evidence of record is against a finding that the Veteran’s current foot disabilities began during active service or are otherwise related to service, to include as due to exposure to CWCL. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral foot disabilities, including plantar fasciitis, onychomycosis, keratosis, dermatophytosis, and vesicular dermatitis, and that the claim must be denied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.