Citation Nr: 21068011 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-22 459A DATE: November 8, 2021 ORDER Service connection for a stomach condition, to include GERD and IBS is denied. Service connection for fatigue, claimed as due to Camp LeJeune contaminated water, to include muscle pain, joint pain, sore throat, and difficulty swallowing, is denied. Service connection for a low back disability, to include pain, numbness, and weakness in the bilateral lower extremities is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a stomach condition, to include GERD and IBS began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis for fatigue at any time during or approximate to the pendency of the claim. 3. The Veteran's low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a stomach condition, to include GERD and IBS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for fatigue, claimed as due to Camp LeJeune contaminated water, to include muscle pain, joint pain, sore throat, and difficulty swallowing, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. The criteria for service connection for a low back disability, to include pain, numbness, and weakness in the bilateral lower extremities 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 FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from July 1981 to December 1981 and from April 1986 to January 1990. The Board previously considered this appeal in February 2019, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 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) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For veterans who are presumed to have been exposed to contaminants in the water supply while serving at Camp Lejeune for no less than 30 days from August 1, 1953, to December 31, 1987, VA has established a presumption of service connection for certain diseases. 38 C.F.R. § 3.307 (a)(7), 3.309(f). While IBS, GERD, fatigue, and degenerative joint disease are not enumerated disabilities encompassed by 38 C.F.R. § 3.309 (f), where a presumption does not exist, VA is to consider whether service connection is warranted on a non-presumptive basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). 1. Service connection for a stomach condition, to include GERD and IBS. The Veteran contends that he has a stomach condition related to service. Alternatively, he contends that his stomach condition was caused by exposure to contaminated water while stationed at Camp Lejeune. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of gastroesophageal reflux disease (GERD), and evidence shows complaints for acute symptoms of nausea, diarrhea, and abdominal cramping occurred during service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of GERD began during service or is otherwise related to an in-service injury, event, or disease. The Veteran does not have a current diagnosis for a stomach or intestinal condition, to include irritable bowel syndrome (IBS). VA treatment records show the Veteran was not diagnosed with GERD until October 2010, decades after his separation from service. The Veteran does not report having experienced symptoms of nausea, vomiting, diarrhea, or abdominal cramping intermittently or consistently since service. Furthermore, he is not competent to provide a diagnosis in this case or determine that these symptoms during service were manifestations of GERD. The issue is medically complex, as it requires a specialized medical education and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the April 2021 VA examiner opined that the Veteran's GERD is not at least as likely as not related to an in-service injury, event, or disease, including treatment for nausea, diarrhea, and abdominal cramping. The rationale was there was no evidence of continuous GERD-related symptoms since service and the Veteran's treatment during service for the aforementioned symptoms amounted to acute gastroenteritis. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his stomach condition is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue because it is medically complex and requires knowledge of pathology and interpretation of complicated diagnostic medical testing, which are outside the scope of his prior experience as a medical service specialist during service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2021 VA examiner's opinion. 2. Service connection for fatigue, claimed as due to Camp LeJeune contaminated water, to include muscle pain, joint pain, sore throat, and difficulty swallowing. The Veteran asserts that he has fatigue related to service, to include as due to Camp LeJeune contaminated water exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The July 2019 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of muscle pain, joint pain, sore throat, and difficulty swallowing during service, he did not have a current diagnosis of fatigue. Further, despite treatment throughout the appeal period, VA and private treatment records do not contain a diagnosis of fatigue. While the Veteran believes he has a current diagnosis of fatigue, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires a specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 3. Service connection for a low back disability, to include pain, numbness, and weakness in the bilateral lower extremities. The Veteran contends that his low back disability, to include pain, numbness, and weakness in the bilateral lower extremities is related to service. Specifically, the Veteran stated that from 1986 to 1989 he injured his back "while moving patients (pre and post-operative mothers) from one bed to another," as well as "lifting and moving supplies and oxygen canisters." See Correspondence, received October 4, 2012. He also endorsed numbness and weakness in his legs. Id. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of mild degenerative joint disease (arthritis) of the lumbar spine as evidenced by the July 2019 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the Board concludes that the Veteran does not have a current diagnosis of radiculopathy of the bilateral lower extremities and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Nevertheless, the lumbar spine arthritis was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with mild arthritis until March 2019, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of low back pain since service, his statements have been inconsistent and he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of mild degenerative joint disease as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service treatment records reflect he denied a history of back pain and the back was assessed as normal on the November 1989 examination completed at discharge. In 2013, the Veteran reported he had recently thrown his back out and made not mention of prior injuries. As such, the report of continuous symptoms is not credible and service connection on a presumptive basis is not warranted. Service connection for a low back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's low back disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The July 2019 VA examiner opined that the Veteran's low back disability is not at least as likely as not related to an in-service injury, event, or disease, including a possible lower back strain in September 1981. The rationale was there was no evidence of chronicity or continued care since the documented treatment during service and the Veteran was not diagnosed with mild degenerative joint disease of the lumber spine until 38 years later. There was also no evidence of radiculopathy. This is consistent with a prior VA Examination of record that indicated the incidental findings of minima degenerative changes on x-ray were most likely due to natural aging. While the Veteran believes his low back disability is related to an in-service injury, event, or disease, including treatment for a possible lower back strain, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.