Citation Nr: 21070027 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-43 894 DATE: November 22, 2021 ORDER Entitlement to service connection for binary lipid disease / dyslipidemia is denied. REMANDED Entitlement to service connection for a heart disability, to include coronary artery disease (CAD), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Binary lipid disease / dyslipidemia was not manifest in service and is not otherwise attributable to service. CONCLUSION OF LAW Service connection for binary lipid disease / dyslipidemia is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Marine Corps from April 1991 to April 1995. He served as a Military Police Officer and Rifle Range Instructor. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a Board video conference hearing in October 2018 before the undersigned Veterans Law Judge (VLJ); a transcript is available in the record. The Board remanded the claims in June 2019. The matters again are before the Board. Service Connection 1. Entitlement to service connection for binary lipid disease Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board acknowledges the Veteran's service at Camp Lejeune and recognizes that effective from March 14, 2017, 38 C.F.R. § 3.307(a)(7) affords presumptive service connection for certain diseases due to exposure to contaminated water at Camp Lejeune between August 1, 1953, and December 31, 1987. However, the Veteran's claimed or diagnosed disabilities fall under the presumptive provisions of 38 C.F.R. § 3.307(a)(7). As such, no further consideration of the above presumptive provisions is warranted. Entitlement to service connection still may be warranted if the facts demonstrate that the disabilities were related to exposure to contaminated water at Camp Lejeune or other circumstances of service. The Veteran contends that he has binary lipid disease due to drinking contaminated water at Camp Lejeune during his active service or otherwise due to his active service. The Veteran's service treatment records include no complaints, treatment, or diagnoses for the claimed disability or related symptoms, including during his February 1995 examination shortly before separation from service. In support of his claim, the Veteran submitted evidence regarding contaminated water at Camp Lejeune, including the closing of 15 water wells in Jun 1990 and the failing of water testing in February 1998. The Veteran also submitted articles discussing the levels and extent of the water contamination at Camp Lejeune. During his October 2018 Board hearing, the Veteran testified about the contaminated water at Camp Lejeune and the issues that his wife had while living there, including a miscarriage. Currently, the Veteran's kidneys and liver were shutting down. He had no family history of such problems. A June 2020 Camp Lejeune Contaminated Water Medical Opinion concluded that the Veteran's binary lipid disease was less likely as not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The opinion noted that dyslipidemia was a disorder of lipoprotein metabolism that resulted in high total cholesterol, high low-density lipoprotein cholesterol (LDL-C), high triglycerides, and low high-density lipoprotein cholesterol (HDL-C). The prevalence of dyslipidemia was highest in people with premature coronary heart disease (CHD) that was defined as occurring before 55 to 60 years of age in men. The prevalence of dyslipidemia was as high as 75 to 85 percent compared to 40 to 48 percent in age-matched controls without CHD. Dyslipidemia was often familial, as one study showed 54 percent of people with premature CHD had a familial disorder. In the majority of people, this inheritance was polygenic and dyslipidemia was strongly influenced by obesity and a diet high in saturated fat and cholesterol. In the majority of people, the inheritance was polygenic and dyslipidemia was strongly influenced by obesity and a diet high in saturated fat and cholesterol. The polygenic type dyslipidemia was the major source of atherosclerotic cardiovascular disease. In addition, the medical professional noted that the Agency for Toxic Substances and Disease Registry (ATSDR) website identified 14 medical conditions as reported health problems in people of all ages from drinking water contaminated with Trichloroethylene (TCE), Perchloroethylene (PCE), benzene, and vinyl chloride. The medical professional, however, noted that dyslipidemia was not among the 14 health problems associated with water contaminated with TCE, PCE, and the other chemicals. In July 2020, the Veteran underwent a VA Hepatitis, Cirrhosis and other Liver Conditions Disability Benefits Questionnaire (DBQ). The examiner indicated that the Veteran had not been diagnosed with a liver condition. The Veteran reported a binary lipid disorder from 1999. He was told to watch his diet and give up alcohol. The examiner concluded that the Veteran's claimed condition of binary disease was not a diagnosis because the claimed diagnosis was related to dyslipidemia and not the liver. Following examination, the examiner concluded that it was less likely than not that the Veteran's claimed binary disease was incurred in or caused by service. The rationale was that the Veteran did not have hepatitis, cirrhosis, or other liver diseases. As such, a nexus had not been established. Dyslipidemia is "abnormality in, or abnormal amounts of, lipids and lipoproteins in the blood." Dorland's Illustrated Medical Dictionary 586 (31st ed. 2012). Hyperlipidemia is a "general term for elevated concentrations of any or all of the lipids in the plasma." Id. at 903. The Veteran's diagnosis of dyslipidemia only represents laboratory findings, and not an actual disability for which VA compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory test results, and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule). The above notwithstanding, the Board has considered the case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. In this case, however, there is no indication that there was a functional impairment of earning capacity as a result of the Veteran's claimed dyslipidemia. The July 2020 VA examination report noted that the sole issues the Veteran has as a result of the dyslipidemia is that he must watch his diet and give up alcohol. Such issues would not affect the Veteran's ability to work or otherwise functionally impair his earning capacity. The sole evidence supporting the Veteran's claim is his assertions. In that regard, he certainly can attest to factual matters of which he has first-hand knowledge and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise, the complexity of diagnosing any of the claimed disabilities, and the complexity of linking any such diagnosis to contaminated water at Camp Lejeune, the Board concludes that in this case his statements regarding any such link between the in-service experiences and the claimed binary lipid disease to be of no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a heart disability, to include CAD, is remanded. The Veteran contends that his current heart problems are due to drinking contaminated water at Camp Lejeune during his active service. The lay and medical evidence indicates that the Veteran has experienced heart problems from approximately 2000. In January 2008, for example, the Veteran had a coronary bypass graft and stent placed. A May 2009 private treatment records indicated that the Veteran had CAD and tobacco abuse, as well as a strong family history of CAD. In March 2015, the Veteran reported that he smoked 3 cigarettes per day. A June 2020 Camp Lejeune Contaminated Water Medical Opinion concluded that the Veteran's coronary heart disease was less likely as not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The opinion was provided by an occupational medicine physician. The opinion noted that CAD (also known as coronary heart disease (CHD)), involved the reduction of blood flow to the heart muscle due to atherosclerosis in the arteries of the heart. It was the most common cause of cardiovascular diseases and remained responsible for one-third or more of all deaths in individuals over age 35. Nearly one-half of all middle-aged men in the United States will develop some manifestations of CHD in their lifetime. Types included stable angina, unstable angina, myocardial infarction, and sudden cardiac death. A common symptom was chest pain. Risk factors included high blood pressure, smoking, diabetes, high cholesterol, obesity, poor diet, lack of exercise, depression, and excessive alcohol. Smoking also was a risk factor for atherosclerotic cardiovascular disease (CVD), CHD, and cerebrovascular disease. The incidence of myocardial infarction increased 3 times in men who smoke at least 20 cigarettes per day, when compared with subjects who never smoke. People who continued to smoke in the presence of established CHD have an increased risk of repeat myocardial infarction and sudden cardiac death. That said, people who quit smoking after a myocardial infarction, the risk for recurrent coronary events declined to equal that of nonsmokers by 3 years after cessation. The risk of CVD related to cigarette smoking was present for even very low doses. Smokers who consumed less than 5 cigarettes per day had an increased risk of CHD event such as myocardial infarction. Smoking even 1 cigarette per day was associated with an approximately 50 percent increased risk of CHD. The more cigarettes a person smoked, the higher risk of developing CHD. The cumulative duration of smoking was also associated with risk for CHD events, with longer duration and higher number of cigarettes yielding a greater risk. In addition, the medical professional noted that the Agency for Toxic Substances and Disease Registry (ATSDR) website identified 14 medical conditions as reported health problems in people of all ages from drinking water contaminated with Trichloroethylene (TCE), Perchloroethylene (PCE), benzene, and vinyl chloride. The medical professional, however, noted that CHD was not among the 14 health problems associated with water contaminated with TCE, PCE, and the other chemicals. In addition, benzene was a natural constituent of cigarette smoke, gasoline, and crude oil, as well as in outdoor air at low levels. While a large number of industrial solvents, including benzene and TCE, could cause cardiac arrhythmia, the doses required usually were very high and only occurred in poorly designed or ventilated workspaces where industrial solvents were used. Trichloroethane could depress cardiac muscle contractility at high doses. The Veteran underwent a VA examination in July 2020. The examiner, a family nurse practitioner (FNP), noted diagnoses of acute, subacute, or old myocardial infarction; CAD; unstable angina; coronary artery bypass graft; residual scar status post coronary artery bypass graft; and ventricular fibrillation status post cardioversion. The Veteran reported problems beginning in 1999 and did not know until after having a heart attack. He reported 12 myocardial infarctions, with 10 to 15 stents placed, angioplasty, nuclear ablation, and triple bypass surgery. The etiology of the Veteran's heart disabilities all stemmed from his CAD. Following examination, the examiner concluded that it was at least as likely as not that the Veteran's CAD was incurred in or caused by service. The rationale noted that an investigation had shown that "several sites on Camp Lejeune tested positive for sporadic contamination of chlorinated solvents, TCE, and vinyl chloride which was documented during the process in 1992. The remedial investigation also found the detection of semivolatile and inorganic compounds and sporadic detection of VOCs in the soil. The presence of lead was also discovered in shallow aquifer samples and also in the deeper water. The medical literature shows that there is a link between lead exposure, hypertension, and cardiovascular disease such as ischemic coronary artery disease. Therefore, the FNP found that it is at least as likely as not that the Veteran's claimed condition of coronary artery disease was caused by his military service. Given the contradictory opinions above that failed to consider the other opinion, the Board concludes that a remand is necessary for an opinion reconciling the two contradictory opinions. 2. Entitlement to TDIU is remanded. The Veteran contends that he has not been able to work as a truck driver since 2009. In his January 2015 claim, the Veteran indicated that he had started a trucking business in 1999 and in 2000 had his first heart attack with multiple subsequent attacks and surgeries leading up to his disability. Each heart attack had been progressively worse. The Veteran had completed 2 years of college and had obtained multiple certifications, including getting his commercial driver's license. The Veteran has reported prior work experience as a medical assistant, mechanic, and welder. In a July 2018 statement, the Veteran reported "constant nagging Headache which thanks to the medicine is not always as severe, but still way too often and having an effect of my quality of living. I have also noticed major memory loss and frequent tremors which have occurred since Headaches started and am taking high doses of Cyproheptadine to curb." A May 2018 VA shoulder examination indicated that the Veteran's shoulder disability affected his ability to work in that he had a decreased ability to perform tasks overhead, as well as decreased endurance and strength in the upper extremities. A May 2018 VA headache examination report stated that the Veteran's headaches affected the Veteran's ability to concentrate and perform tasks at work. An October 2018 private Vocational Assessment is of record. The report indicates a review of certain cited records, but they were adjudicative decisions and statements by the Veteran. There was no mention of a review of medical records or contact with the Veteran. The Veteran reported that with his current medication he experienced 2 or more migraines per month that lasted from 1 hour to all day. With the migraines, the Veteran experienced profuse sweating, was sensitive to light and noise, and experienced severe head pain. In addition, limitation of the left upper extremity compromised "work at the Sedentary, Light, Medium, Heavy, and Very Heavy exertion levels. The ramifications of his migraines result in an inability to sustain the required Concentration, Pace, and Persistence for extended periods, i.e., two hours at a time, eight hours a day, five days a week, or equivalent thereof, associated with competitive employment. Furthermore, the occurrence of these migraine attacks with a frequency of at least two times per month and lasting up to all day at a time would exceed the tolerance level of allowed breaks and/or absences from work. At entry level these include the three normal breaks throughout the day at two-hour intervals, and absences of eight days per year, accrued incrementally per month, providing he successfully completed the probationary period with only one excused absence. Based on the evidence established it is my professional opinion that [the Veteran] is unable to sustain any full-time competitive employment at any level of skill or exertion." A December 2018 VA headache examination report the Veteran reported daily headaches with migraines 2 times per week. He had sensitivity to light and sound and also would sweat. The Veteran had prostrating migraines once every month. The examiner indicated that the Veteran was disabled due to his heart disability, but that when he had a headache he was not able to engage in physical activities, which occurred about twice per week and lasted for a few hours. A December 2019 VA knee examination report indicated that the Veteran's service-connected knee disability affected his ability to work in that he had difficulty with running, as well as repetitive standing and long distance walking. A December 2019 VA shoulder examination report noted that the Veteran's ability to work was affected due to difficulty with repetitive pushing, pulling, and reaching overhead and behind his back. The TDIU issue is inextricably intertwined with the heart claim, as a grant of service connection for the heart disability would affect the TDIU claim. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding whether the Veteran's heart disabilities, including CAD, were at least as likely as not incurred in service or are otherwise caused by service, to include in-service exposure to contaminated water at Camp Lejeune in 1991-95. Attention is called to the large file of technical documents regarding the nature of the water contamination during this period (not during the period up to 1987 for which there is a presumption of exposure to certain contaminants). In reaching the foregoing conclusion, the medical professional must discuss and reconcile, as necessary, the contradictory June 2020 Camp Lejeune opinion and the July 2020 medical examination report and opinion. 2. Thereafter, adjudicate the Veteran's claims (including the TDIU claim). If a complete grant of the benefits sought is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.