Citation Nr: 21068077 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 12-25 961 DATE: November 9, 2021 ORDER Entitlement to service connection for enlarged lymph nodes is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. During his active military service, the Veteran was stationed at Camp Lejeune when the water was contaminated; thus, it is conceded that the Veteran was exposed to contaminated water during his active military service. 2. The probative evidence fails to provide a causal connection between the Veteran's enlarged lymph nodes and military service, to include exposure to contaminated water at Camp Lejeune, and there is no competent evidence of enlarged lymph nodes during service or within the year following discharge from service. 3. The most probative evidence indicates that the Veteran's service-connected vertigo did not preclude him from substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for enlarged lymph nodes have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for a TDIU, on an extraschedular basis, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1979. The appeal was remanded by the Board in August 2014, June 2020 and again in July 2021. In August 2021, prior to recertification of the appeal to the Board, the Veteran's prior representative, Michael G. Miskowiec, Attorney, withdrew representation through a written statement sent to the Agency of Original Jurisdiction (AOJ). The letter reflects that the Veteran was notified of the withdrawal. 38 C.F.R. § 14.631(c). The Veteran has not appointed new representation since this withdrawal. As such, the Board will proceed with adjudication of the appeal with the Veteran unrepresented. 1. Entitlement to service connection for enlarged lymph nodes Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In certain cases when a veteran has been exposed to water supply contaminants during service, service connection may be presumed for diseases associated with such exposure. Contaminants include the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, which were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period extending from August 1, 1953 to December 31, 1987. When exposure to the water supply contaminants at Camp Lejeune is established in accordance with the regulation, certain diseases associated with that exposure will be service connected if they manifest to a degree of 10 percent or more at any time after service. Prostate cancer is not a disease VA has associated with the water supply contaminants at Camp Lejeune. 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to enumerate eight diseases presumed by VA to be associated with and caused by the contaminants present in the water supply at Camp Lejeune as follows: kidney cancer; liver cancer; Non-Hodgkin's lymphoma; adult leukemia; multiple myeloma; Parkinson's disease; aplastic anemia and other myelodysplastic syndromes; and bladder cancer. See 38 C.F.R. § 3.309 (f). Thus, a veteran who presents a diagnosis of one of these eight conditions and establishes qualifying service at Camp Lejeune is presumed to be entitled to service connection for that condition. These 2017 amendments apply both to claims received by VA on or after January 13, 2017, as well as to claims pending before VA on that date. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he developed enlarged lymph nodes as a result of his exposure to contaminated water at Camp Lejeune, wherein he was stationed from November 1978 to August 1979. In support of his claim, in 2012 the Veteran submitted an article that reported that peripheral lymphocytes of workers exposed to trichloroethylene were inconclusive. Inhalation studies reported increased incidences of lymphomas and lung tumors. The service treatment records reflect no complaints, treatment or findings consistent with enlarged lymph nodes. After service, VA treatment records in October 2008, noted lymphadenopathy and thyromegaly. In September 2009 a clinician reported left cervical enlarged lymph node. The condition was noted to have resolved in October 2009. Thus, the record reflects enlarged lymph nodes were initially noted more than 25 years following his exposure to contaminated water at Camp Lejeune and separation from service. This is some evidence against a finding of any continuity of symptomatology and against his claim for service connection. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). The central issue in this case is whether the Veteran's enlarged lymph nodes, initially noted many years after service, is etiologically related to that exposure. Accordingly, competent evidence linking the current disability to service is needed to substantiate the claim. On VA examination in May 2012, the examiner noted the Veteran's Camp LeJeune service. The Veteran reported that he served in an area where the water supply was contaminated with VOC. Reportedly, he noticed a swollen gland at the left side of the neck in 2009, with intermittent swelling and pain. The Veteran denied swelling glands, other than his neck. He also denied weight loss or shortness of breath. Evaluation of the gland revealed no abnormalities and there was no gland enlargement. Additionally, the Veteran did not have hematological/lymphatic condition. There was no palpable gland on examination. He did not have leukemia and blood studies were normal, with no evidence of malignancy. The VA examiner noted symptomatic gland enlargement and opined that the condition was less likely than not proximately due to or the result of the Veteran's service. In support of the opinion the examiner noted that there was no available study that linked Camp Lejeune water contamination to long term sequela such as symptomatic gland enlargement. A VA examiner in June 2015, noted the Veteran's exposure to chemicals in the water while stationed at Camp Lejeune from 1978 to 1979. Following a review of the claims file, the examiner opined that the Veteran's cervical lymphadenopathy was not caused by or a result of his military service. The examiner explained that the Veteran apparently developed swollen cervical lymph glands in 2009, 30 years after exposure to chemicals in the ground water at Camp Lejeune. Lymph glands acted as filters for foreign particles, bacteria, viruses and cancer cells. Lymph nodes did not deal with toxicity, such as chemicals, which was primarily dealt with by the liver and kidneys. The examiner concluded that the most probable cause of the Veteran's lymphadenopathy was his dental caries. The Board finds the opinions of the May 2012 and June 2015 VA examiners to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran's enlarged lymph nodes were incurred as a result of service, to include his conceded exposure to contaminants while stationed at Camp LeJeune. The Board finds the reports to be adequate: The examiners' findings were based on a review of the evidence, including the service treatment records and post-service treatment records, which did not substantiate a finding that his enlarged lymph nodes were incurred in service or was otherwise related to any aspect of the Veteran's service. The examiners considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support his contentions. Moreover, the opinions are internally consistent and consistent with other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, regarding the articles submitted by the Veteran, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given Veteran's claim. Mattern v. West, 12 Vet. App. 222, 228 (1999). In the present case, the articles submitted by the Veteran fall into this general category. The Board notes that the articles only provide very general information regarding contaminants at Camp LeJeune and do not speak to this Veteran's particular circumstances. Therefore, the Board assigns the articles no probative value. Instead, the Board finds the VA examiners' opinions more probative in determining whether the Veteran's claimed disorder is due to service. To the extent that the record reflects diagnoses of enlarged lymph nodes, the condition was not shown in service or for many years thereafter, and there is no competent evidence that any such disorder is etiologically related to any aspect of the Veteran's service, including his presumed exposure to contaminants while stationed at Camp LeJeune. The Veteran has not submitted a medical opinion refuting that of the VA examiner. His assertions thus represent the only evidence linking his disability to service and these assertions may not be considered competent evidence of a nexus. The Veteran does not possess a recognized degree of medical knowledge to attribute his enlarged lymph nodes to in-service water contamination or any other in-service event. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiners. Here, the most probative evidence establishes that the Veteran's enlarged lymph nodes are not related to service. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the Veteran's claim, and it must be denied. 2. Entitlement to a TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. In reaching that determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. Here, service connection is currently in effect for vertigo, evaluated as 30% disabled. The question before the Board is whether the Veteran was unemployable by reason of his service-connected disability, taking into account his educational and occupational background. The Board finds that the greater weight of the probative evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected vertigo. The Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, upon which he reported that he could not follow a substantially gainful occupation due to cardiovascular complications. He stated that he became too disabled to work and last worked full-time in October 2009. The Veteran's educational background is unclear. Other evidence of record, including Social Security Administration (SSA) records, show that the Veteran completed his GED and had additional trade/vocational training in 1990. A June 2011 SSA decision found the Veteran to be disabled from July 2008 due to severe impairments including atrial fibrillation and adjustment disorder with anxiety, which prevented him from performing any substantial gainful activity on a regular sustained basis. The Board finds that the SSA findings, overall, provide highly probative evidence against this claim, indicating, overall, that the nonservice-connected problems are the root cause of the Veteran not working. On VA ear disease examination in March 2010, the Veteran reported that he was employed as an air conditioning heating and electrical technician for more than 20 years. The Veteran reported 26 weeks of lost work in the previous 12 months due to near syncope and atrial fibrillation symptoms. The examiner opined that the Veteran's vertigo had no significant effects on the Veteran's employability. On VA examination in June 2015, a VA examiner opined that the Veteran was capable of sedentary and physical employment. In January 2018, a VA examiner determined that the Veteran's vertigo did not impact his ability to work. As such, the Board finds that the Veteran's service-connected vertigo does not preclude him from securing and following a substantially gainful occupation consistent with his education and occupational background. Therefore, the Board finds that while the Veteran's service-connected disability was productive of some occupational limitations, the objective medical evidence, to include VA examination reports, did not support a finding that the Veteran's service-connected disability precluded his employment. The VA examiners addressed the question of employability directly and their opinions are consistent. Moreover, the VA examination opinion reports, as outlined above, fail to show that the Veteran's service-connected vertigo precluded the Veteran from gainful employment, and collectively provided evidence against this finding. Significantly, throughout the appeal the Veteran attributed his unemployability to the nonservice-connected atrial fibrillation and related cardiovascular complications, as opposed to the service-connected vertigo. Accordingly, the Board concludes that referral of this issue for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16 (b), is not appropriate, and that a TDIU is not warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.