Citation Nr: 21067562 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 11-26 384A DATE: November 4, 2021 ORDER Entitlement to service connection for a gallbladder disability, to include as due to herbicide agent exposure and/or contaminated water at Camp Lejeune is denied. REMANDED Entitlement to service connection for lesion of the liver, to include as due to herbicide agent exposure and/or contaminated water at Camp Lejeune is remanded. FINDING OF FACT The Veteran's gallbladder disability did not have its onset during active service or within one year of service discharge and is not otherwise due to active service, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for a gallbladder disability, to include as a result of exposure to herbicide agents and/or contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 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 October 1962 to August 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further evidentiary development in June 2019 and February 2021. The case has returned to the Board for appellate review. Entitlement to service connection for a gallbladder disability, to include as due to herbicide agent exposure and/or contaminated water at Camp Lejeune Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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 a "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 a 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). 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, 1137; 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. The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e) if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6)(ii). Service connection may also be granted on a presumptive basis for certain specified diseases, including liver cancer, as due to presumed exposure to the contaminants in the water supply at Camp Lejeune provided the disease manifests to a compensable degree at any time after service in a Veteran who had no less than 30 days (consecutive or nonconsecutive) of active service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. The Veteran's service personnel records document that he had the requisite active service in the Republic of Vietnam and at Camp Lejeune during the relevant time periods; therefore, he is presumed to have been exposed to herbicide agents and the contaminated water supply at Camp Lejeune. Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines "contaminants in the water supply" as the volatile organic compound 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. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309 (f), (i.e., adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The rulemaking applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 4173-4185 (January 13, 2017). However, in issuing this new regulation, VA specifically concluded that there is insufficient medical and scientific evidence to establish a presumption of service connection for any disability beyond the eight diseases listed in the regulation. 82 Fed. Reg. 4180. Additionally, in the explanatory material published in the Federal Register, VA noted that the Camp Lejeune Act provides medical care, but not compensation benefits, to veterans who served on active duty at Camp Lejeune for the 14 identified conditions "notwithstanding that there is insufficient medical evidence to conclude that such illnesses or conditions are attributable to such service." VA's more recent review of scientific evidence was undertaken to determine the appropriateness of establishing presumptions of service connection for claimants who served at Camp Lejeune. As noted in the proposed rulemaking, this review included the analysis of several hazard evaluations on the chemicals of interest conducted by multiple bodies of scientific experts and was not an evaluation of the specific risks of exposure to contaminated water at Camp Lejeune. VA's review resulted in the recognition that liver cancer and Parkinson's disease, two diseases that were not included in the Camp Lejeune Act, are conditions for which there is strong evidence of a causal relationship and evidence that the condition may be caused by exposure to the contaminants. The Board notes that the Veteran's claimed disabilities are not included in the list of presumptive diseases under 38 C.F.R. § 3.309. Consequently, the Board finds that the Veteran cannot prevail on his claims for service connection for a gallbladder disability and lesion on the liver based upon these presumptive theories of entitlement. Notwithstanding the presumption, service connection for a disability claimed as due to contaminated water at Camp Lejeune, North Carolina and/or in-service herbicide exposure, may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). 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 subject to lay observation. 38 U.S.C. § 1154 (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). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the record, the Veteran's service treatment records (STRs) show no complaints of, treatment for, or a diagnosis related to a gallbladder. A January 2011 letter from the Veteran's private physician indicated his gallbladder problems were related to in-service herbicide exposure in Vietnam. However, the physician did not provide a nexus opinion or a rationale to support this indication. A VA medical opinion was obtained in December 2019 and the Veteran was afforded an in-person VA examination in December 2020. The examiners provided a negative nexus opinion with a rationale limited to a statement that the Veteran's gallbladder disability was not a presumptive disability. In its February 2021 decision, the Board found these examinations to be inadequate for rating purposes, so the Board did not rely on these examinations when making this present decision. Pursuant to the February 2021 Board remand, the Veteran was afforded a VA examination in May 2021. The examiner provided a negative nexus opinion with rationale. The Veteran's gallbladder was most likely removed due to gallstones. The most common cause of gallstones is high cholesterol/obesity. The Veteran has high cholesterol and has been morbidly obese for years; he also has other common risk factors, including advanced age, poor diet, alcohol use, tobacco use. These factors contributed to the development of his gallbladder problems and these risk factors outweigh the environmental risk from exposure to contaminated water at Camp Lejeune or herbicide exposure. Indeed, the examiner opined that the Veteran's gallbladder disability is most likely due to obesity. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a gallbladder disability is warranted. Direct service connection necessitates a link between the Veteran's service and his gallbladder disability. However, based on the foregoing, no such link is present. The Veteran's STRs do not show any complaints of, treatment for, or diagnosis of a gallbladder disability. Furthermore, even though the Veteran was exposed to Camp Lejeune contaminated water and even if he was exposed to herbicide agents during service, there is no probative evidence linking his gallbladder disability with his military service, to include exposure to contaminated water at Camp Lejeune or herbicide agents. Additionally, there is no indication in the medical evidence of record that the Veteran had any complaints of or treatment for gallbladder disabilities, prior to 2007, approximately 41 years after separation from service. The Board finds the file to be complete. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Additionally, the Board has considered the January 2011 private medical opinion indicating that the Veteran's gallbladder condition is related to in-service herbicide exposure in Vietnam and finds it to be inadequate regarding the etiology of the Veteran's gallbladder disability. The private physician did not specifically provide an etiological opinion or rationale for this disability and instead listed all of the Veteran's ailments at that time. As such, the January 2011 private medical opinion has little probative value. The Board acknowledges that the Veteran is competent to report his history of gallbladder problems. However, he has not demonstrated that he has the requisite specialized knowledge and training to provide a medically complex opinion. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran's lay assertions are not competent to provide an etiological opinion for his gallbladder disability, and thus offers little probative value. The Veteran has not presented any competent and credible evidence that his gallbladder disability is etiologically related to his active-duty service, to include herbicide exposure or exposure to contaminated water at Camp Lejeune. Accordingly, the Veteran's service connection claim is not warranted. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for a gallbladder disability. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for lesion of the liver, to include as due to herbicide agent exposure and/or contaminated water at Camp Lejeune The Veteran seeks entitlement to service connection for a lesion of the liver. The Veteran contends that this disability is related to his military service. Specifically, the Veteran contends that this disability is related to in-service herbicide exposure and/or contaminated water at Camp Lejeune. Pursuant to the February 2021 Board remand, the Veteran was afforded a VA examination in May 2021. The examiner provided a negative nexus opinion with the rationale that the cause of the Veteran's benign liver lesion is believed to be a congenital condition and was not caused by service. The examiner also noted that the Veteran had multiple medical encounters while in service and never complained of gastrointestinal symptoms, which indicate this disability is not related to his military service. The Board notes that for VA compensation purposes, congenital or developmental defects are not considered diseases or injuries. See 38 C.F.R. §§ 3.303(c), 4.9. Thus, in general, service connection may not be granted for congenital or developmental defects. See 38 C.F.R. § 3.303(c). However, under certain circumstances, service connection may be warranted for congenital or developmental diseases, as opposed to defects. See VAOPGCPREC 82-90; see also 38 C.F.R. § 3.306. Additionally, service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury. See VAOPGCPREC 82-90. At present, a VA medical opinion discussing whether the Veteran's liver lesion is a congenital disease or defect, and if the Veteran's liver lesion existed prior to service and was aggravated by his period of active service is necessary to comprehensively evaluate the claim for service connection. The matter is REMANDED for the following action: 1. The RO should obtain copies of all outstanding records from the VA Medical Center and its associated clinics where the Veteran receives treatment. If any pertinent private treatment has been rendered, the Veteran's assistance in obtaining these records should be requested as needed. All attempts to obtain records should be documented in the claims file. 2. Obtain a VA medical opinion from an appropriate examiner. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: (a.) Identify any current liver disability or residual of a liver disability, to include any liver disability diagnosed at any time during the course of this appeal. This should include a discussion of whether the Veteran's liver disability a congenital defect or a congenital disease. The term 'defect' is broadly defined as a structural or inherent abnormality or condition that is more or less stationary in nature. The term 'disease' is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. (b.) If it is determined this condition is a congenital defect, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has an additional disability due to an in-service disease or injury superimposed upon such defect. (c.) If instead it is determined that this condition is a congenital disease, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran's liver lesion existed prior to his entry onto active duty? (d.) If the answer to (c) is yes, does the evidence of record clearly and unmistakably show that the preexisting disease was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (e.) If the answer to either (c) or (d) is no, is it at least as likely as not that the Veteran's condition had its onset in service? (f.) If the Veteran's liver disability is neither a congenital defect nor congenital disease, the examiner should opine as to whether it at least as likely as not (a 50 percent probability or greater) that the condition is etiologically related to service or is either caused or aggravated (permanently worsened beyond the natural progress of the disorder). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. A complete rationale should accompany any opinion provided and should be based on examination findings, historical records, and medical principles. (Continued on the next page) 3. After the requested development has been completed, the RO should review any report or opinion to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.