Citation Nr: 21061258 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 16-38 248 DATE: October 1, 2021 ORDER Service connection for hepatitis C, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Service connection for cirrhosis of the liver, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Service connection for a left knee disorder, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Service connection for bilateral flat feet is granted. FINDINGS OF FACT 1. The Veteran had active service at the Camp Lejeune Marine Corps Base in North Carolina in the 1970s and 1980s. He was exposed to contaminated water while serving at this facility. 2. The Veteran's hepatitis C is not causally or etiologically related to his active service in the Marine Corps, to include any injury or event or incident therein. 3. The Veteran's cirrhosis of the liver is not causally or etiologically related to his active service in the Marine Corps, to include any injury or event or incident therein. 4. The Veteran's left knee disorder is not causally or etiologically related to his active service in the Marine Corps, to include any injury or event or incident therein. 5. The onset of the Veteran's bilateral flat feet condition was during his service in the Marine Corps. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for hepatitis C. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 17.400. 2. The criteria have not been met for service connection or secondary service connection for cirrhosis of the liver. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 17.400. 3. The criteria have not been met for service connection or secondary service connection for a left knee disorder. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 17.400. 4. Resolving all reasonable doubt in his favor, the Veteran has a bilateral flat feet disorder that was incurred in active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from August 1974 to August 1980 and from February 1981 to February 1984. He served at the Camp Lejeune Marine Corps Base in North Carolina. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In May 2021, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA's Duty to Notify and Assist VA's duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by VA notice letters sent to Veteran dated in July 2013 and April 2014. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020). These letters advised the Veteran of the information and evidence necessary to substantiate his service connection and secondary service connection claims, with specific information provided for the Camp Lejeune and hepatitis C claims. In any event, subsequent to the corrective May 2021 Board remand, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for 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) the existence of 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 disease or injury incurred or aggravated during service the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balancei.e., "nearly equal"but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021). At the outset, with regard to presumptive service connection, under recently amended law, effective March 14, 2017, a veteran or former reservist or member of the National Guard who had 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 contaminants in the water supply, even though there is no record of such disease during service, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(7)(iii). See also Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173, 4184-85 (Jan. 13, 2017). For purposes of the Camp Lejeune presumption, "contaminants in the water supply" means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7)(i). On this issue, the Veteran's SPRs confirm that he served at the Camp Lejeune Marine Corps Base for various periods of time in the 1970s and 1980s. Therefore, he is presumed to have been exposed to contaminants in the water supply during his active duty at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). However, none of the conditions on appeal hepatitis C, cirrhosis of the liver, a left knee condition, or flat feet, is on the list of diseases associated with contaminants in the water supply at Camp Lejeune for purposes of awarding presumptive service connection. 38 C.F.R. § 3.309(f). In other words, not one of the conditions on appeal is a presumptive Camp Lejeune disability. Thus, although he was exposed to contaminated water at Camp Lejeune during his service in the Marine Corps, the Veteran is not entitled to service connection for his hepatitis C, cirrhosis of the liver, a left knee condition, or flat feet, on a presumptive basis under 38 C.F.R. § 3.309(e). With regard to direct service connection, under the Camp Lejeune Act of 2012, VA has also recognized 15 "covered illnesses" or "conditions" that it will assume are attributable to a veteran's active duty service at Camp Lejeune, but for treatment purposes only. See 38 U.S.C. § 1710(e); 38 C.F.R. § 17.400(b). A "covered illness or condition" means any of the following illnesses and conditions: (i) Esophageal cancer; (ii) Lung cancer; (iii) Breast cancer; (iv) Bladder cancer; (v) Kidney cancer; (vi) Leukemia; (vii) Multiple myeloma; (viii) Myelodysplastic syndromes; (ix) Renal toxicity; (x) Hepatic steatosis; (xi) Female infertility; (xii) Miscarriage; (xiii) Scleroderma; (xiv) Neurobehavioral effects; and(xv) Non-Hodgkin's lymphoma. Id. For a Camp Lejeune veteran, VA will assume that a "covered illness or condition" listed above is attributable to the veteran's active duty service at Camp Lejeune unless it is clinically determined, under VA clinical practice guidelines, that such an illness or condition resulted from a cause other than such service. 38 C.F.R. § 17.400(c). VA has determined that manifestation of any of the above diseases in a veteran with verified Camp Lejeune service between 1957 and 1987 is sufficient to request a VA medical examination and an opinion regarding its relationship to Camp Lejeune service. However, in the present case, the Veteran's hepatitis C, cirrhosis of the liver, a left knee condition, and flat feet, are not on this list of "covered illnesses or conditions" assumed attributable to service for treatment purposes only under 38 C.F.R. § 17.400(b). As such, this provision does not assist the Veteran in the present case. A. Hepatitis C Service connection for hepatitis C is denied. The Veteran has a current diagnosis of hepatitis C. Medical evidence demonstrates that the Veteran has a diagnosis of hepatitis C and that his hepatitis C may be associated with a history of gonorrhea. See GI Clinic Note dated in March 2000. However, service treatment records (STRs) dated from August 1974 to August 1980 and from February 1981 to February 1984 are negative for any risk factors of hepatitis C or any treatment or diagnosis of hepatitis C. An August 1980 STR examination shows a history of gonorrhea, suggesting he incurred gonorrhea during his military service. Post-service, the Veteran was first diagnosed with hepatitis C in 2000, decades after separation from service. Post-service, a May 2005 medical note opined that the etiology of the Veteran's cirrhosis of the liver appears to be his hepatitis C and alcohol use. In a June 2014 rating decision, the AOJ already denied the Veteran service connection for underlying alcoholism. With regard to a nexus, a July 2021 VA hepatitis C examiner opined that it is less likely than not (less than 50% probability) that the Veteran's hepatitis C is related to his active military service. There is no objective evidence or identifiable risk factors during his periods of active duty service that supports hepatitis C manifesting as a result of service. Although the Veteran reported a car accident suffered in the 1980s, not during active duty, after which he may have had a blood transfusion, he does not recall due to being unconscious at the time. No other records support an identifiable source of infection stemming from service. The VA examiner added that hepatitis C does not evolve from an STI (such as the Veteran's verified in-service gonorrhea diagnosis). There is no nexus opinion of record indicating that the Veteran's hepatitis C is directly due to his presumptive exposure to contaminants in the water supply at Camp Lejeune. While the Veteran may believe that a medical nexus exists, he is not competent to provide an opinion in this case. The question is medically complex and requires knowledge of the specific infection involved and medical training regarding its diagnosis. Accordingly, the preponderance of the evidence is against the Veteran's service connection claim for hepatitis C. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. B. Cirrhosis of the Liver The Veteran claims his cirrhosis of the liver developed secondary to his hepatitis C. At the outset, a July 2021 VA examiner opined that the Veteran's cirrhosis of the liver is at least as likely as not caused by the hepatitis C. Cirrhosis of the liver is known to develop after chronic hepatitis C infection, according to the VA examiner. However, absent an award of service connection for the underlying hepatitis C disability, secondary service connection cannot be awarded for the Veteran's cirrhosis of the liver. See 38 C.F.R. § 3.310. As to direct service connection, STRs dated from August 1974 to August 1980 and from February 1981 to February 1984 did not contain complaints, treatment, or a diagnosis for cirrhosis of the liver. There is also no evidence of cirrhosis of the liver within one year of separation from service in 1984 or 1985. Post-service, a May 2005 medical note opined that the etiology of the Veteran's cirrhosis appears to be hepatitis C and alcohol use. In a June 2014 rating decision, the AOJ already denied the Veteran service connection for underlying alcoholism. Post-service, there is no evidence of record revealing a nexus between the Veteran's cirrhosis of the liver and his periods of service in the Marine Corps. There is no nexus opinion of record indicating that the Veteran's cirrhosis of the liver is directly due to his presumptive exposure to contaminants in the water supply at Camp Lejeune. While the Veteran may believe that a medical nexus exists, he is not competent to provide an opinion in this case. The question is medically complex and requires knowledge of the interaction of multiple systems and organs in the body and medical training regarding the diagnoses involved. Accordingly, the preponderance of the evidence is against the Veteran's service connection claim for cirrhosis of the liver. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. C. Left Knee The Veteran has a current diagnosis of a left knee strain. See July 2021 VA knee examination. He also has an earlier diagnosis of left knee arthritis from January 2009. STRs showed the Veteran had an injury to the left knee in 1981. This injury was termed a traumatic bursitis. X-rays of the left knee at that time were negative. The Veteran was seen a few times in 1981 during active duty while recovering from this injury. At his last visit of record for this problem in 1981 the Marine Corps examiner noted the Veteran had a nearly full range of motion of the knee. Also, the Marine Corps examiner said the Veteran could return to full duty. All other STRs are negative for any further treatment or complaints of a left knee disability. There is also no evidence of arthritis of the left knee within one year of separation from service in 1984 or 1985. Post-service, a physical therapy note dated in July 2009 documented the Veteran's report that that he started getting left knee pain after getting injections for hepatitis last year. He was diagnosed with degenerative changes of the left knee in January 2009 per X-rays. In addition, a February 2017 medical note which revealed that the Veteran's knees began to swell after taking a dose of propranolol for his hepatitis C and cirrhosis of the liver. However, he is not service-connected for his underlying hepatitis C or cirrhosis of the liver, so secondary service connection for a left knee condition cannot be awarded here. See 38 C.F.R. § 3.310. With regard to a nexus, a November 2013 VA examiner discussed the Veteran's in-service treatment for left knee bursitis above. However, the VA examiner opined that the Veteran's left knee condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran was able to complete approximately three more years of military service after his in-service left knee injury. As well there are no further documents during the Veteran's service stating that his left knee injury was an ongoing problem. After active service ended (in 1984) there are no post-service medical records or documents of a left knee condition until around 2009 per the VA examiner. At that time the Veteran was diagnosed with degenerative changes of the left knee. This happened years after service. Therefore, a direct connection to service or any event in service could not be made by the VA examiner. There is also no nexus opinion of record indicating that the Veteran's left knee problems are directly due to his presumptive exposure to contaminants in the water supply at Camp Lejeune. With regard to a nexus, a July 2021 VA knee examiner opined that it is less likely than not (less than 50% probability) that the Veteran's left knee strain is related to his active military service. The VA examiner stated the Veteran denied any work up or evaluation of the left knee since service. The acute bout of gonorrhea during active duty does not lead to a knee strain diagnosed many years after service. The VA examiner added that there is no evidence of a chronic left knee condition in the available records to demonstrate continuity of care since separation from service. A nexus is therefore not established. While the Veteran may believe that a medical nexus exists, he is not competent to provide an opinion in this case. The question is medically complex and requires knowledge of the interaction of multiple systems within the body and the diagnosis involved. Accordingly, the preponderance of the evidence is against the Veteran's service connection claim for a left knee disorder. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. D. Flat Feet An August STR 1980 examination noted a history of foot trouble and a history of flat feet. Earlier STRs in 1974 also mentioned pes planus. There is no clear and unmistakable evidence this condition preexisted the Veteran's service in the Marine Corps. A July 2021 VA foot examiner rendered a current diagnosis of bilateral flat feet. Accordingly, service connection for bilateral flat feet is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.