Citation Nr: 21062778 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-60 174 DATE: October 12, 2021 ORDER Entitlement to service connection for a gastrointestinal disability is denied. FINDING OF FACT A current gastrointestinal disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifested to a compensable degree within a year of service separation, and is not due to an in-service disease, injury, or other incident of service, to include exposure to contaminated water at Camp LeJeune. CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 from June 1971 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This issue was previously remanded in October 2019 for additional development. That development has been accomplished and this appeal has been returned to the Board. Entitlement to service connection for a gastrointestinal disability The Veteran seeks service connection for a gastrointestinal disability. She asserts such a disability had its onset in service, or is otherwise related to service, and service connection is therefore warranted. More specifically, she asserts a current gastrointestinal disability is due to exposure to contaminated water during service at Camp LeJeune. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Furthermore, service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if the qualifying disease manifests to a compensable degree at any time after service in a veteran, former reservist, or a member of the National Guard, who has no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune in North Carolina, during the period from August 1, 1953, to December 31, 1987. 38 C.F.R. § 3.307(a)(7). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: 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. § 3.309(f). For disabilities not presumed by regulation to be due to exposure to contaminated water at Camp Lejeune, a claimant may still establish service connection by showing that any such disability is directly and causally linked to exposure to contaminated water at Camp Lejeune, or any other incident or injury in service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Unfortunately, the service treatment records are unavailable. In cases where the service records are unavailable, a heightened duty exists to assist in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Service personnel records have been obtained, however, and confirm the Veteran's presence at Camp LeJeune for over 30 days of active duty service, from October 1971 to December 1971. Review of the post-service medical records indicates the Veteran sought private treatment for pain of the right lower abdominal quadrant beginning in 2005. Possible diagnoses at that time included irritable bowel disorder or a cecal mass. A March 2006 colonoscopy indicated a colon polyp, which was removed. Subsequent diagnoses include diverticulitis, irritable bowel syndrome, hiatal hernia, gastritis, gastroesophageal reflux disease, and H pylori infection. In December 2015, VA received a written statement from D.P., who reported the Veteran had a history of "gallstones surgery and other stomach disorders" which were likely related to exposure to contaminated water at Camp LeJeune. D.P. did not identify herself as a health care provider or otherwise indicate any medical expertise or training as a basis for such an opinion. The letter does not contain any rationale explaining how or why she reached this conclusion. As the competency of this writer to offer medical opinion evidence has not been established and no medical rationale for this opinion has been given, the Board finds this statement carries no probative weight. A VA medical opinion was afforded the Veteran in January 2020. The claims file was reviewed by the examiner, a VA physician. After reviewing the evidence of record, the examiner determined it was less likely than not any current gastrointestinal disability was related to service, to include exposure to contaminated water at Camp LeJeune. The examiner stated that the pathophysiology and risk factors for gastroesophageal reflux disease, constipation, and diverticulosis were considered, as well as the toxicological data on Trichloroethylene (TCE), Tetrachloroethylene, Perchloroethylene (PCE), Benzene, and Vinyl Chloride. The examiner also considered the Veteran's risk factors, including age, history of hiatal hernia, medication use, and obesity, along with her approximately 2 months of exposure time to the modeled water contamination levels at Camp Lejeune. The examiner further noted that "no definitive scientific link" has been established between exposure to contaminated water at Camp LeJeune and current gastrointestinal disabilities in exposed veterans. Based on this review, the examiner found it less likely than not any current gastrointestinal disability caused by or incurred by her exposures to contaminated water at Camp Lejeune. In March 2020, the Veteran was afforded an in-person VA examination conducted by a VA physician. The claims file was reviewed in conjunction with the examination. Upon review of the file and examination of the Veteran, the physician diagnosed irritable bowel syndrome, with onset several years after service. A history of diverticulitis, gastroesophageal reflux disease, and H pylori infection was also noted. The Veteran reported onset of her gastrointestinal symptoms in approximately 1983. Regarding the etiology of any current gastrointestinal disability, this examiner concluded it was less likely than not related to any in-service disease or injury, as no such disorder was reported by the Veteran in service, and such symptoms began many years after service. Additionally, the examiner opined that a nexus between exposure to contaminated water at Camp LeJeune in service and a current gastrointestinal disability was less likely than not. The examiner noted that such gastrointestinal disabilities as diverticulitis were very common conditions, with an increased prevalence with age. Finally, a third VA medical opinion was obtained from a VA physician in July 2020. The claims file was reviewed by the examiner, but the Veteran was not personally examined. After considering the entirety of the record, the examiner concluded it was less likely than not the Veteran's current gastrointestinal disabilities were due to or the result of exposure to contaminated water at Camp LeJeune. The examiner noted that, while the Veteran was present at Camp LeJeune, her presence there was relatively brief, and preceded her gastrointestinal symptoms by many years. Additionally, she had other, more common, risk factors for gastrointestinal disabilities. These included age, obesity, prior pregnancies, sedentary lifestyle, and other medications used. The Veteran's post-service history of a H pylori infection also increased her likelihood of subsequently developing gastrointestinal symptoms, according to the examiner. The examiner could also find no evidence in the scientific literature suggesting a nexus between contaminants in the water at Camp LeJeune and the currently-diagnosed gastrointestinal disabilities. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a gastrointestinal disability on any basis. While the Veteran's service treatment records are unfortunately unavailable, she has given a history of onset of her current gastrointestinal symptoms many years after service. As such, the record does not demonstrate that any current gastrointestinal had its onset in service, has been chronic or continuous since service separation, or manifested to a compensable degree within a year of service separation. Additionally, no competent expert has suggested a nexus between a current gastrointestinal disability and a disease, injury, or other incident of service. Regarding the Veteran's assertions of a nexus with her exposure to contaminated water at Camp LeJeune, the Board notes first that none of the Veteran's diagnosed gastrointestinal disabilities are among the disabilities for which presumptive service connection is warranted. Regarding other evidence of a nexus based on such exposure, three different VA examiners determined such a nexus was less likely than not. The Veteran has not presented any competent evidence to the contrary. In the absence of any such evidence, service connection for a gastrointestinal disability based on exposure to contaminated water at Camp LeJeune must be denied. The Veteran has herself asserted her current gastrointestinal disabilities are due to service, or exposure to contaminated water in service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, gastrointestinal disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a gastrointestinal disability on any basis. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.