Citation Nr: 21067399 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-39 910A DATE: November 4, 2021 ORDER Service connection for chronic headaches is denied. Service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a compensable disability rating for pseudofolliculitis barbae prior to April 30, 2015, is remanded. Entitlement to a disability rating greater than 30 percent for pseudofolliculitis barbae from April 30, 2015, is remanded. Entitlement to a disability rating greater than 30 percent for disfiguring scars of face and neck is remanded. Entitlement to a separate disability rating greater than 10 percent for painful scars of face and neck is remanded. Entitlement to a finding of total disability based on individual unemployability (TDIU) due to service-connected disabilities prior to June 7, 2016, is remanded. FINDINGS OF FACT 1. The Veteran served at Camp Lejeune for at least 30 days between August 1, 1953, and December 31, 1987; hence, he is presumed to have been exposed to contaminated water in active service. 2. The Veteran's mixed headaches during active service were acute and resolved, and currently diagnosed headaches are attributable to the intercurrent cause of obstructive sleep apnea, as well as to medication adjustments for hypertension; and not attributable to service or related (causation or aggravation) to a service-connected disease or injury. 3. The Veteran's diabetes mellitus was not manifest during active service or within the first year after separation; and is not attributable to service or related (causation or aggravation) to a service-connected disease or injury. CONCLUSIONS OF LAW 1. Chronic headaches were not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 2. Diabetes mellitus was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from July 1986 to October 1993. He was assigned to Camp Lejeune from August 1986 to June 1989. He timely appealed these matters from an April 2013 rating decision. In April 2019, the Board of Veterans' Appeals (Board) remanded the matters for additional development; for claims decided below, substantial compliance with the Board's prior remand order is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). All available records identified by the Veteran as relating to each of his claims decided below have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran's appeal. 38 U.S.C. § 5103A(a)(2). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as organic diseases of the nervous system and diabetes mellitus, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. Service connection also may be granted on a presumptive basis for certain diseases associated with exposure to contaminated water at Camp Lejeune, North Carolina, if a Veteran, former reservist, or member of the National Guard shows: (1) that he or she served at Camp Lejeune for no less than 30 consecutive or nonconsecutive days between August 1, 1953 and 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 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 evidence of record demonstrates that the Veteran served at Camp Lejeune during the relevant period and, thus, the Veteran is presumed to have been exposed to water supply contaminants trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride. Service connection already was awarded for "kidney cancer" based on presumed exposure to contaminated water at Camp Lejeune. In fact, the Veteran's medical situation is complex. For purposes of clarification and analysis, a distinction is made between the Veteran's service-connected kidney cancer and his nonservice-connected renal failure, which is pertinent to decide the below claims. In this appeal, the Veteran's claimed disabilitiesnamely, headaches and diabetes mellitusare not among those associated with exposure to contaminants in the water supply at Camp Lejeune, which are limited to (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, and (8) bladder cancer. Notwithstanding, the Veteran is not precluded from establishing service connection with proof of direct causation. The Board will consider all relevant theories of service connection. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The Veteran was presumed sound at service entry. Clinical evaluation at entry in August 1985 was normal, and no disability was recorded. Nor is there medical evidence of any disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Chronic Headaches The Veteran contends that chronic headaches had their onset in active service. His service treatment records reflect treatment for complaints of frontal headaches and nasal congestion in March 1987. The Veteran reported at the time that the headaches started the previous day, with gradual onset. Following examination, the assessment was rule-out viral syndrome with tension headache (mild). In November 1988, the Veteran complained of loss of consciousness in the field and pain in the right jaw. He and another Marine were loading a truck with roadblock wood, and the Veteran was knocked out. He was awakened by a corpsman and escorted for treatment. The Veteran complained of headache in the left temporal region, with no other complaints. Examination revealed the Veteran as alert and oriented times three; there were no open wounds and no deformity all over. The assessment was normal examination findings, loss of consciousness secondary to head trauma. The Veteran again complained of headache and sore throat in April 1992; assessment was strep throat, and medication was prescribed. On each "Report of Medical History" completed by the Veteran in August 1985 at enlistment; in August 1988; in June 1992; and in June 1993 at separation, he checked "no" in response to whether he ever had or now had frequent or severe headaches. Clinical evaluation at the Veteran's separation examination in June 1993 showed normal head, face, neck, and scalp, and normal neurologic system. Chronic headaches were not noted at separation. VA records, dated in February 2004, show that the Veteran reported having headaches in the past. VA examination in July 2012 included a diagnosis of headaches secondary to untreated obstructive sleep apnea. His medical history reflects that the Veteran was seen for headaches at least three times during active service. He admitted to nasal congestion seasonally. The Veteran reported having intermittent headaches since active service, some while undergoing medication adjustment for hypertension. His headaches occurred every one-to-two weeks and lasted for four hours. There were no symptoms of nausea, vomiting, aura, or light sensitivity. Sometimes there was dizziness with pain; and pain was a Level 8 on a scale of 10, sharp in origin, and mostly on top of head. The Veteran took medication for headaches. He was found to have severe obstructive sleep apnea during the last month with significant oxygen desaturations; he presently was not on CPAP. Headache symptoms in July 2012 included pain on both sides of head, as well as dizziness. The typical head pain lasted less than one day. The Veteran had prostrating attacks of non-migraine headache pain more frequently than once per month. The headache condition did not impact his ability to work. Following examination in July 2012, the examiner opined that the current diagnosis of headaches was less likely than not incurred in or caused by active service. In support of the opinion, the examiner reasoned that the Veteran's in-service treatment for headaches was associated with viral illness, strep infection, and head trauma; and there was one indication of possible tension-type headache. The Veteran's description of headaches presently was not typical of tension-type headaches; and current headaches most likely were associated with severe obstructive sleep apnea, which was not under treatment and may have worsened after the Veteran's cerebral vascular accident in October 2011. Accordingly, it was less likely that current headaches have a nexus to those mixed headaches treated in active service. In February 2016, the Veteran described headaches as frequently prostrating in nature, which he believed were caused by exposure to contaminated water at Camp Lejeune. In December 2016, he reported that he continued to have headaches from tinnitus; the assessment then was tinnitus with headache. The examiner did not state there was an etiological link; he simply repeated the Veteran's allegations and identified comorbid symptoms. LeShore v. Brown, 8 Vet. App. 406 (1995). In October 2019, a VA medical expert reviewed the Veteran's claims file and opined that the Veteran has a diagnosis of headaches, which was less likely as not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The expert explained that tension-type headache is the most common type of chronic recurring head pain, which is usually associated with stress; or chronic, which is associated with contracted muscles of the neck and scalp. Etiology is felt to be multifactorial; and the Veteran had many risk factors for tension headaches. A search for medical literature relating tension-type headaches to TCE, benzene, and vinyl chloride revealed no relevant articles. Here, the Veteran has reported symptoms of intermittent headaches since active service, which were now chronic. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He has been consistent with the reported history regarding headaches. The accounts of headache pain during and since active service are credible and are afforded significant probative value. As noted above, the October 2019 medical expert was unable to link the Veteran's current headaches to exposure to contaminated water at Camp Lejeune in active service, noting the etiology of tension-type headaches as multifactorial. No examiner has attributed the Veteran's current headaches to active service or to a service-connected disability. The Veteran currently has a diagnosis of headaches. As indicated above, headaches are an organic disease of the nervous system and, as such, are a listed chronic disease. When a Veteran experiences symptoms of chronic disease in service, any subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In this case, current headaches clearly have been attributable to intercurrent causes. Specifically, post-service headaches have been attributed to medication adjustments for hypertension and to obstructive sleep apnea. None of these disabilities is service-connected. Hence, service connection for chronic headaches is not warranted. The Board is aware that the question of service connection for hypertension remains open, and the evidence of record relates some headaches to that condition. However, such headaches were not a chronic disability; they were isolated symptoms. Diabetes Mellitus Service treatment records do not reflect any findings or complaints of diabetes mellitus. There is no evidence of treatment in active service for diabetes mellitus. Diabetes mellitus was not demonstrated in active service or within the first post-service year. Therefore, the in-service element has not been met. Rather, post-service records show the onset of disability many years after service, in approximately 2010. A July 2012 VA examination report included a medical history of developed steroid diabetes mellitus. Pertinent physical findings included an altered immune system due to anti-rejection medications, and Prednisone-related diabetes mellitus requiring insulin. VA records show an assessment of diabetes mellitus with neurological manifestations in June 2015. In February 2016, the Veteran expressed his belief that his diabetes mellitus was caused by immunosuppressive medication (Prednisone) required after the kidney transplant. Laboratory findings suggested diabetes mellitus in May 2017. In August 2019, the Veteran was invited to attend a group education clinic for help with controlling diabetes mellitus. Significantly, service connection has not been established for renal failure. The Veteran reported that symptoms of renal failure were first recognized in 1995. An examiner subsequently reported that symptoms of renal failure were manifested via proteinuria, hematuria, and hypertension. The Veteran had required dialysis three times per week, and he underwent a kidney transplant in 2008. His renal disease improved after the transplant. Of note, at no time has the Veteran's renal disease been associated with kidney cancer; the Veteran's kidney cancer first was found several years later in 2015. In fact, cancer was found solely in each native kidney; no cancer was found in the one transplanted kidney. In August 2017, a medical expert opined that development of kidney cancer in the Veteran's native kidneys more likely than not was related to contaminated water at Camp Lejeune. In October 2019, a VA medical expert reviewed the Veteran's claims file and opined that the Veteran has a diagnosis of diabetes mellitus, which was less likely as not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The expert explained that the etiology of diabetes mellitus involved complex interactions between genetic and environmental factors. Secondary diabetes mellitus may occur in people taking steroids. Studies of association between diabetes mellitus and exposure to vinyl chloride and TCE showed no significant positive correlation. A search of medical literature relating diabetes mellitus to benzene revealed no relevant articles. The one transplanted kidney continued to function well; it was not exposed to contaminated water. In essence, the most probative evidence reflects that steroids were required to maintain the transplanted kidney in 2008, several years prior to the Veteran being diagnosed with kidney cancer; and that use of steroids resulted in the Veteran's current diabetes mellitus. Likewise, the evidence is against finding that diabetes mellitus is related to service-connected disease or injury. No examiner has attributed the Veteran's diabetes mellitus to service-connected kidney cancer, or to exposure to contaminated water at Camp Lejeune. The Board finds the October 2019 opinion probative; it is broad enough to reflect neither causation nor aggravation. The Veteran has not submitted evidence or information linking active service to the currently diagnosed diabetes mellitus. While he may fervently believe in such a connection, as a layperson the Veteran lacks the competence to render a nexus opinion on such a complex medical question. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In fact, no medical professional has indicated even a possible link between current diabetes mellitus and active service. The Board is within its province to decide as to whether the evidence supports a finding of service incurrence. See Barr, 21 Vet. App. at 307. Here, the first credible showing of pertinent disability is many years after service with no competent evidence that diabetes mellitus is in any way related to active service or to a service-connected disability. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for diabetes mellitus. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Hypertension A VA examiner in July 2012 diagnosed hypertension, and listed the date of diagnosis as 2001. The Veteran reported a long history of hypertension, which finally was treated with medication in 2001. He had rapid decline in kidney function and placed on dialysis; he underwent a kidney transplant in August 2008. He took continuous medication daily for hypertension. Other pertinent physical findings included left hand weakness, possibly related to cerebral vascular accident. The Veteran's hypertension did not impact his ability to work. Social Security records, received in April 2017, show a primary diagnosis of chronic renal failure and a secondary diagnosis of essential hypertension. A September 2017 VA examination report reveals that the Veteran subsequently was diagnosed with kidney cancer in both his native kidneys in 2015. The examiner opined that the Veteran's history of hypertension was a strong risk factor for kidney cancer. In October 2019, a VA medical expert reviewed the Veteran's claims file and opined that the Veteran has a diagnosis of hypertension, which was less likely as not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. While the October 2019 examiner offered a nexus opinion regarding direct service connection, no opinion was provided regarding secondary service connection. Here, a reasonable basis for a possible nexus is raised for secondary service connection, and examination or medical review is required; determinations of proximate cause and degree of aggravation, if possible, are especially important. McLendon v. Nicholson, 20 Vet. App. 79, 83-84 (2006). Pseudofolliculitis Barbae The Veteran contends that higher ratings are warranted for pseudofolliculitis barbae. The Board previously remanded this matter for an examination to ascertain the current severity of pseudofolliculitis barbae; however, the Veteran was unable to attend a December 2020 examination. In February 2021, he requested that the examination be rescheduled; the Veteran is willing to attend. A full examination has not been performed since April 2016, and updated findings are required. VA revised criteria for evaluation of skin disabilities, effective August 13, 2018. 83 Fed. Reg. 32,592-32,601 (July 13, 2018). The VA Secretary specifically stated an intent to apply the revised criteria to all pending claims, wherever more favorable. The revised criteria provide a distinct clarification between "systemic therapy" and "topical therapy," and include a general rating formula for skin disabilities. Diagnostic Code 7806, pertaining to dermatitis or eczema, is to be evaluated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118. Scars of Face and Neck The Veteran contends that higher ratings are warranted for scars of face and neck associated with pseudofolliculitis barbae. He underwent a VA (contract) examination in November 2019. The examiner noted that the head and neck scarring was still present; there were too many to count. The scarring was documented as one large scar that was tender to palpation. Entitlement to higher ratings for scars of face and neck is inextricably intertwined with the open evaluation claim for pseudofolliculitis barbae addressed in this remand. TDIU Prior to June 7, 2016 The Veteran has raised the issue of TDIU as part and parcel of claims for higher ratings; and VA examiners have noted functional impairment resulting from service-connected disabilities. Entitlement to TDIU prior to June 7, 2016, is inextricably intertwined with the open evaluation claim addressed in this remand. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records for the period from July 2020 to the present. 2. Schedule a VA examination or medical review, as appropriate, to determine the nature and etiology of the Veteran's hypertension. The claims file must be available and reviewed in this regard. Specifically, the examiner should opine as to whether currently diagnosed hypertension is at least as likely as not (50 percent probability or greater) caused or aggravated by service, to include as secondary to service-connected kidney cancer or service-connected major depressive disorder, or any other service-connected disability. A full and complete rationale for all opinions expressed is required. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA skin examination to assess the current status of his pseudofolliculitis barbae. The examiner should specify all parts of the body affected, and provide estimates of the percentage of the entire body and exposed areas affected, as well as describe the treatment required. To the extent possible, the manifestations of PFB and facial scars should be distinguished. 4. Then, readjudicate the claims on appeal, to include entitlement to higher ratings for scars of face and neck; and entitlement to a TDIU prior to June 7, 2016. If any benefits sought remain denied, issue a supplemental statement of the case and, after appropriate time for response, return the appeal to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.