Citation Nr: 21004967 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-62 725 DATE: January 28, 2021 ORDER Service connection for diabetes mellitus, type 2, to include as due to contaminated water at Camp Lejeune is denied. Service connection for a bilateral eye disorder, to include diabetic retinopathy and refractive error, to include as secondary to diabetes mellitus is denied. Service connection for residuals of a traumatic brain injury (TBI), to include migraine headaches is denied. REMANDED The claim for service connection for a back disability is remanded. The claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus was not incurred in or aggravated by active duty service and may not be presumed to have been incurred during active duty service, and it is not related to the Veteran’s exposure to contaminated water at Camp LeJeune, North Carolina. 2. A bilateral eye disorder was not incurred in service, related to the Veteran’s active duty service, or caused or aggravated by a service-connected disability. 3. There is insufficient competent evidence that a current bilateral eye disorder was superimposed over a post-service refractive error. 4. The Veteran sustained a mild concussion in service, but the TBI resolved and he has no current TBI residuals, to include migraine headaches. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral eye disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for a TBI, to include migraine headaches have not been met. 38 U.S.C. §§ 1110, 5107 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1963 to December 1967 This appeal comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a VA Regional Office (RO). In January 2020, the Veteran canceled his virtual hearing before a Veterans Law Judge, and the record does not reflect that he has made a further request to reschedule the canceled hearing. See VA Form 27-0820, Report of General Information, dated in January 2021. Service Connection The Veteran seeks, in part, service connection for diabetes mellitus, type 2, bilateral eye disorder, to include as secondary diabetes mellitus, and residuals of a traumatic brain injury, to include migraine headaches. After a brief discussion of the laws and regulations discussing service connection, the Board will adjudicate the claims for diabetes mellitus, type 2, bilateral eye disorder and residuals of a traumatic brain injury, to include migraine headaches. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service “the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for certain chronic diseases listed at 38 C.F.R. § 3.309 (a), such as diabetes mellitus, if manifested to a compensable degree within one year from the date of separation from service. See 38 C.F.R. §§ 3.307 (a), 3.309(a). Additionally, a veteran with no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the 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). If a veteran was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of 38 C.F.R. § 3.307 (a)(7), the enumerated diseases listed at 38 C.F.R. § 3.309 (f) shall be service-connected even though there is no record of such disease during service. See 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). 1. Service Connection for Diabetes Mellitus, type 2, is denied. Military records confirm that the Veteran was stationed at Camp LeJeune for at least 30 days between October 1965 to December 1967, so his exposure to contaminated water at Camp LeJeune is presumed. 38 C.F.R. § 3.307 (a)(7)(iii). However, for the reasons set out below the Board finds that the claim is not substantiated. As for the theory of entitlement advanced by the Veteran (that is, due to contaminated water at Camp LeJeune), diabetes is not among the diseases listed at 38 C.F.R. § 3.309 (f), so service connection under the presumptive provisions of 38 C.F.R. § 3.309 (f) is not possible. This, however, does not “preclude or authorize the VA to preclude the veteran from proving actual direct causation…” See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (holding that “the presumptive provisions are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. The list... while an exclusive catalogue of maladies triggering presumptive service connection, is not the only means of showing service connection. Veterans retain the opportunity to show direct service connection by establishing direct actual causation.”). Here, the Veteran has presented no supportive evidence (much less proof) of a link between his in-service exposure to contaminated water and his subsequent development of diabetes. To the extent that the Veteran’s statements are offered as a lay opinion on causation, that is, an association between his diabetes (diagnosed many years after service) and his exposure to contaminated water during service, a lay opinion is probative only when limited to inferences which are rationally based on a claimant’s perception and does not require specialized knowledge. However, injury to and disease pathology of the endocrine system is not capable of lay observation. Specialized knowledge is thus required to make a link between, in this case, contaminant and disease; and no factual foundation has been established to show that the Veteran is qualified through knowledge, education, training, or experience to establish such an association. The Board therefore finds that the Veteran’s opinion as to an association between his exposure to contaminated water during service and his remote onset diabetes is beyond the Veteran’s lay capacity and is of no probative weight given the medical and scientific complexity of this issue. Based on the foregoing, the Board finds that no VA medical opinion is warranted. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). In Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010), the Federal Circuit held that, while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service is not of sufficient weight to trigger VA’s duty to seek a medical opinion on the issue, as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. See Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge); Waters, 601 F.3d at 1278 (concluding that a veteran’s lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA’s duty to seek a medical opinion on the issue). Based on the evidence of record, the weight of the evidence demonstrates no relationship between the Veteran’s current diabetes mellitus and active duty service. For these reasons, the Board finds that the preponderance of the lay and medical evidence of record is against the Veteran’s claim of service connection for diabetes mellitus, to include as due to exposure to contaminated water at Camp Lejeune, on a direct, presumptive, or any other basis, and the claim must be denied. 2. Service connection for a bilateral eye disorder, to include diabetic retinopathy and refractive error is denied. The Veteran seeks service connection for a bilateral eye disorder, contending that he has diabetic retinopathy as a result of his diabetes mellitus. See VA Form 9, received by VA in November 2017. The Veteran has been diagnosed as having diabetic retinopathy of both eyes with macular edema. See September 2016 report, prepared by Greensboro Eye. As the Board has denied service connection for diabetes mellitus here, secondary service connection cannot be granted on this basis as a matter of law. See 38 C.F.R. § 3.310 (a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran also has refractive error of the eyes. However, service connection is not generally established for refractive error of the eye as it is not a disease or injury within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303 (c), 4.9. Refractive error of the eyes includes myopia, presbyopia, and astigmatism. Further, absent aggravation or superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991). Thus, in the absence of some event or trauma, a refractive error is a constitutional or development abnormality for which compensation benefits may not be authorized. 38 C.F.R. §§ 3.303 (c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90. Here, the only event or trauma reported by the Veteran was having been struck on the head while playing football in May 1964. The Veteran was allegedly unconscious for a short period of time. An x-ray of the skull was within normal limits. The Veteran complained, in part, of blurred vision at that time. The final diagnosis was a mild cerebral concussion. At discharge in December 1967, visual acuity was measured as 20/20 for both distance and near vision. Therefore, as there is no competent evidence of a superimposed disease or injury, entitlement to service connection for a bilateral eye refractive error is denied. The Board finds that the criteria for VA to provide an examination and opinion are not met. The Veteran is competent to report having eye problems, such as blurry vision. He has, however, not identified or provided competent evidence of a current organic eye disorder was caused by service, to include the May 1964 concussion. VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters at 601 F.3d 1274, 1278 (2010). There is simply no competent medical evidence of record to suggest that the Veteran experiences a current bilateral eye disability that was caused by or incurred during his active service, or that any eye disorder has been caused or aggravated by any service-connected disability. Aside from asserting that his bilateral diabetic retinopathy is secondary to diabetes mellitus, the Veteran has not explained why he believes service connection for an eye disorder is warranted, and there is no evidence in any of his private and VA medical records indicating that the Veteran has any eye disorder which could possibly be related to service or a service-connected disability. The weight of the evidence is therefore against finding that the Veteran has any vision or eye disability which was incurred in service or is related to service, and there is no medical evidence indicating that any vision disability was caused or aggravated by a service-connected disability. As the preponderance of the probative and competent evidence weighs against the claim the claim is denied. 3. Service connection for residuals of TBI, to include migraine headaches is denied. The Veteran contends that he is entitled to service connection for residuals of a TBI to include headaches. Specifically, he maintains that he was struck on the head while playing football in May 1964, and that he has residuals, to include headaches as a result of the in-service head trauma. The Veteran’s service treatment records (STRs) reflect that in May 1964, he was n struck on the head while playing football in May 1964. The Veteran was allegedly unconscious for a short period of time. Subsequently, he hit his head against a locker and passed out again. The Veteran was noted to be confused upon seeking treatment. He complained of pain on the left side of the head, blurred vision, and dizziness. It was noted that he had a throbbing headache, left frontal head pain and blurred vision. A physical examination was negative. Skull films were negative for evidence of a fracture. He was diagnosed as having a mild concussion. The remainder of the STRs are devoid of any further complaints or clinical findings referable to residuals of the May 1964 concussion, to include headaches or head pain. At discharge in December, the Veteran’s head and neurological system were evaluated as “normal.” There must be competent evidence that the Veteran currently has a TBI or residuals of a TBI. Unfortunately, the record does not include such evidence. There is no question the Veteran suffered a mild concussion in service, but the probative evidence suggests the injury resolved itself prior to discharge with no residuals. As noted in the preceding paragraph, the STRs are devoid of any further complaints or clinical findings to include headaches or head pain after the May 1964 concussion. At discharge in December 1967, the Veteran’s head and neurological system were evaluated as “normal.” Post-service VA and private medical evidence does not show that the Veteran has reported experiencing any reported headaches and other subjective symptoms that might be considered to be residuals of a TBI. Numerous medical records were reviewed, but the Veteran routinely denies headaches throughout the treatment records. The post-service evidence simply does not reveal any findings of any continuing or chronic residual impairment that has been related to the Veteran’s in-service injury. The Board appreciates the Veteran’s sincere belief that he has residuals of his in-service concussion. He is certainly competent to report his symptoms, but he is not competent to attribute these current symptoms to an in-service concussion/TBI. He is not shown to have any medical expertise to so opine. VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Id. The Veteran does not have a current diagnosis of TBI residuals, to include migraine headaches for which VA compensation may be awarded. Accordingly, service connection for TBI residuals, to include migraine headaches is denied REASONS FOR REMAND 1. The claim for service connection for a back disorder is remanded. The Veteran seeks service connection for a back disability The Veteran asserts that his back disability is due to a May 1964 football injury. The Veteran has been diagnosed as having degeneration of lumbar intervertebral disc. See VA treatment record, dated in September 2015. The Veteran’s STRs reflect that his spine was evaluated as “normal” at a July 1963 enlistment examination. On an accompanying Report of Medical History, the Veteran reported that he was in “good” health. In May 1964, he was struck on the head while playing football in May 1964.The Veteran was allegedly unconscious for a short period of time. Subsequently, he hit his head against a locker and passed out again. The Veteran presented confused upon seeking treatment. A physical examination was negative. He was diagnosed asa having a mild concussion. In mid-September 1964, the examining clinician noted that the Veteran had previously received treatment for a lumbar sprain. It was reported that the Veteran had been placed on light duty and prescribed medication for his spine. In late September 1964, the Veteran was seen for complaints of low back pain that he had had for “many yrs.” He related that the reason that back pain was not indicated at enlistment was because he wanted to enter the military. The examining clinician reported that there was no evidence of any disc fractures. An examination of the spine revealed that the Veteran had good range of motion. He was referred to an orthopedic consult. When seen in the orthopedic clinic, the examining clinician reported that the Veteran had a long history of intermittent low back pain that had existed prior to service and had increased. The clinician related that the Veteran complained of medial longer leg pains that were quite severe. The Veteran claimed to have had polio as a young adult. The Veteran was given a provisional diagnosis of low back pain of questionable etiology. At service separation in December 1967, the Veteran’s spine was evaluated as “normal.” In view of the Veteran’s July 1963 service enlistment examination report reflecting that his spine was “normal,” his in-service treatment for lumbar sprain; orthopedic consult containing the examining clinician’s opinion that the Veteran had had low back pain that had existed prior to service with a provisional diagnosis of low back pain of questionable etiology; and, normal spine at service discharge in December 1967, the Board finds that he should be scheduled for a VA examination. 2. The claim for service connection for an acquired psychiatric disorder, to include PTSD is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he has PTSD from having been exposed to hostile fire from having participated in the Dominican Republic Civil War evacuation and relief efforts. See VA Form 21-4138, Statement in Support of Claim and VA Form 9, received in April 2016 and November 2017, respectively. The Veteran’s military personnel records reflect that the Veteran served in the Dominican Republic from April 26, 1965 to June 8, 1965. A claim for service connection for PTSD falls within the scope of a claim for service connection for an acquired psychiatric disorder based on another diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). This raises VA’s duty to assist, because VA normally takes steps to provide confirmation of the Veteran’s claimed stressors in a claim for service connection for PTSD. Additionally, the description of surviving an alleged uprising is suggestive of fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity may be a stressor that provides grounds for service connection even without confirmation if a qualified expert confirms that the claimed stressor may support a diagnosis of PTSD. 38 C.F.R. § 3.304. As such, this matter must be remanded in order to take steps to confirm the Veteran’s claimed stressors, and the Veteran must be provided a VA examination in order to determine whether or not his claimed stressors qualify as fear of hostile military or terrorist activity sufficient to support a diagnosis of PTSD. The matters are REMANDED for the following action: 1. Provide the Veteran with an examination to determine the etiology of his low back disability, currently diagnosed as degeneration of lumbar intervertebral disc. The examiner should address the following questions: a) Did the Veteran’s low back clearly and unmistakably exist prior to service (as evidenced by a September 1964 orthopedic consult report reflecting that that the Veteran had a long history of intermittent low back pain that had existed prior to service)? Why or why not? b) If so, was the low back condition clearly and unmistakably not aggravated by the Veteran’s military service, meaning that the low back condition did not permanently increase beyond the natural progression of the disability? Why or why not? c) Is it at least as likely as not (50 percent or greater) that the Veteran’s current low back disorder either began during or was otherwise caused by his military service? Why or why not? In so doing, the examiner should specifically address the Veteran’s assertions that he had polio prior to service and that his back condition is the result of the May 1964 in-service football accident. The examiner should also address the following evidence: (i) July 1963 service enlistment examination report reflecting that the Veteran’s spine were evaluated as normal; (ii) In May 1964, the was in struck on the head while playing football in May 1964. A physical examination was negative. He was diagnosed as having a mild concussion; (iii) In mid-September 1964, the examining clinician noted that the Veteran had previously received treatment for lumbar sprain. It was reported that the Veteran had been placed on light duty and prescribed medication for his spine; (iv) In late September 1964, the Veteran was seen for complaints of low back pain that he had had for “many yrs.” He related that the reason that back pain was not indicated at enlistment was because he wanted to enter the military. The examining clinician reported that there was no evidence of any disc fractures. An examination of the spine revealed that the Veteran had good range of motion. He was referred to an orthopedic consult; (v) September 1964 orthopedic clinic note containing the examining clinician’s notation that the Veteran had a long history of intermittent low back pain that had existed prior to service and had increased. The Veteran claimed to have had polio as a young adult. The Veteran was given a provisional diagnosis of low back pain of questionable etiology; (vi) December 1967 service separation examination report the Veteran’s spine was evaluated as “normal.” 2. Arrange to provide the Veteran with a VA psychiatric examination with a psychiatrist or psychologist in order to answer the following questions: a. Does medical evidence establish a link between a current diagnosis of PTSD and an in-service stressor? Why or why not? b. Do any of the Veteran’s claimed in-service stressors constitute fear of hostile military or terrorist activity sufficient to support a diagnosis of PTSD including being exposed to hostile fire while participating in the Dominican Republic Civil War evacuation and relief efforts. See VA Form 21-4138, Statement in Support of Claim and VA Form 9, received in April 2016 and November 2017, respectively. Why or why not? c. If the examiner concludes that the Veteran does not have PTSD as a result of his military service, then the examiner should indicate whether it is at least as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric disability, other than PTSD, that either began during or was otherwise caused by his military service. Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.