Citation Nr: 21004565 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-10 352 DATE: January 27, 2021 ORDER Entitlement to service connection for neurobehavioral effects is denied. FINDING OF FACT The preponderance of the evidence is against finding that neurobehavioral effects began during active service, or are otherwise related to an in-service injury or disease, including the Veteran’s exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for neurobehavioral effects are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 17.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1956 to November 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was previously before the Board in July 2019. At that time, the Board remanded the claim for entitlement for service connection for neurobehavioral effects in order to afford the Veteran a VA examination as to the nature and etiology of his condition. As the record reflects that the Veteran has been afforded a VA examination and a VA medical opinion was obtained, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). The Veteran’s Contention The Veteran contends that his neurobehavioral effects are due to his exposure to the water at Camp Lejeune while he was in service. Entitlement to service connection for neurobehavioral effects Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on the merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (last updated January 28, 2013). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride (VC), and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011) (citing the National Academy of Sciences (NAS) National Research Council (NRC) report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.”). Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1953 and 1987. Id. at p. 6. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases found to be associated with contaminants present in the water supply at Camp Lejeune. See 82 Fed. Reg. 4173 (Jan. 13, 2017). As amended, 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for veterans who served at Camp Lejeune for no less than 30 days from August 1, 1953, to December 31, 1987, 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 (emphasis added). A 2009 National Research Council (NRC) report on contaminated water at Camp Lejeune found that there was limited/suggestive evidence of an association between exposure to mixed solvents and “neurobehavioral effects,” to include symptoms of fatigue, lack of coordination, sensory disturbances, confusion, depression, tension, trouble concentrating, and headache; alterations in neurobehavioral tests that indicate deficits in attention, reaction time, visuomotor coordination, motor function, digit symbol, and contrast sensitivity; and certain neuropsychological disorders such as learning or behavioral disorders. “Neurobehavioral effects” is also listed among those conditions eligible for hospital care and medical services for Camp Lejeune veterans. 38 C.F.R. § 17.400(b). While service connection is not presumed for the conditions listed in C.F.R. § 17.400(b), the absence of a disease from the presumptive list in 3.309(f) does not preclude a veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Veteran is able to establish the existence of current disabilities as the VA treatment records reflect that he has been diagnosed with depressive disorder and has complained of headaches, dizziness, irritability, short term memory loss, loss of balance leading to frequent falls and hand tremors. The Veteran has also been presumed to have been exposed to contaminated water at Camp Lejeune based on his service there from 1957 to 1959. As noted, the claim for entitlement to service connection for neurobehavioral effects, including as a result of exposure to Camp Lejeune water, was remanded for a VA examination to address the nature and etiology of the Veteran’s conditions. Following the Board remand, a Camp Lejeune contaminated water medical opinion was obtained in May 2020 and the Veteran was afforded a VA examination for mental disorders in October 2020. The VA medical opinion concluded that the Veteran’s neurobehavioral effects were less likely than not caused by or related to the Camp Lejeune exposure. The VA examiner determined that the Veteran’s memory loss, slow response to questions, dizziness, headache and weakness were secondary to the stroke he experienced in May 2011 and that his shaking, tremors and irritability were found in the context of alcohol withdrawal the Veteran experience in 2007. The physician who provided the VA medical opinion noted that evidence of neurobehavioral effects caused by exposure to contaminants usually occurred with current exposure and were associated with high levels of contamination over a period of 9 years or more. The physician noted that the Veteran was exposed to levels less than those identified in relevant studies and that his exposure was for significantly less than 9 years. Based on the medical research and the evidence of the Veteran’s symptoms in the context of his stroke and alcohol withdrawal, as well as the Veteran’s age at diagnosis, short duration of exposure and latency of the symptoms, the physician concluded that the Veteran’s neurobehavioral effects were less likely than not caused by or related to his Camp Lejeune exposure. The October 2020 VA examination noted that the Veteran was diagnosed with unspecified depressive disorder. The VA examiner concluded that the Veteran’s condition was less likely than not incurred in or caused by service based on the lack of any treatment or diagnosis during service and the associations between the Veteran’s symptoms and his stroke in 2011, as well as his alcohol withdrawal. The Board finds the opinions offered in the VA medical opinion and VA examination are entitled to probative weight. The examiners reviewed the relevant records, discussed the relevant medical literature, and offered specific rationales in support of the conclusions that the Veteran’s conditions were not related to service, including his exposure to contaminated water at Camp Lejeune. The Board notes that there are no contradictory medical opinions in the record suggesting a link between the Veteran’s conditions and service. Although the Veteran is competent to relate his observable symptoms, there is no evidence in the record that he is qualified to offer an etiological opinion for his neurobehavioral effects. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the claim for entitlement to service connection for neurobehavioral effects is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.