Citation Nr: 21070435 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 12-27 315A DATE: November 24, 2021 ORDER Entitlement to service connection for lymphoma, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina is denied. Entitlement to service connection for a lung condition, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina is denied. Entitlement to service connection for residuals of a head injury is denied. FINDINGS OF FACT 1. The Veteran's Hodgkin's lymphoma was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; the disability is not otherwise etiologically related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune, North Carolina. 2. The preponderance of the evidence of record is against finding that the Veteran has had a lung condition at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had residuals of a head injury at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lymphoma, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina 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. 2. The criteria for entitlement to service connection for a lung condition, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in June 2014. A transcript of the hearing is associated with the electric claims file. In April 2015, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). 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; 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. 1. Entitlement to service connection for lymphoma, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina The Veteran contends that his lymphoma is due to exposure to jet fuels and exhaust from trucks. See Transcript of June 2014 Board Hearing at pg. 10. Alternatively, he contends that his lymphoma is due to exposure while stationed at Camp Lejeune. Id. at pg. 25. A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307 (a)(7). Contaminants in the water supply means the volatile organic compounds 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. 38 C.F.R. § 3.307 (a)(7). If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), certain diseases shall be service connected when manifested to a degree of 10 percent or more at any time after service, even though there is no record of such disease during service, subject to the rebuttable presumption provisions of §3.307(d). While Non-Hodgkin's lymphoma is listed, the current Hodgkin's disease is not among the diseases presumed to be associated with exposure to contaminated water at Camp Lejeune. Therefore, entitlement to service connection under the presumption provisions of §3.307(d) is not warranted. 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 Hodgkin's lymphoma, and evidence shows that he was exposed to jet fuel and exhaust and contaminated water at Camp Lejeune, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of Hodgkin's lymphoma began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with Hodgkin's lymphoma until July 2014, approximately three decades after his separation from service. While the Veteran is competent to report having experienced symptoms of swollen lymph nodes intermittently after service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of Hodgkin's lymphoma. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Private practitioner C.X. opined that the Veteran's Hodgkin's lymphoma is more likely than not related to exposure to contaminated water during the Veteran's service in Camp Lejeune. Dr. C.X. also stated that the Veteran was a refueling engineer while in service and was exposed to chemicals, jet fuels, fumes, and aircraft exhaust which more than likely also contributed to his diagnosis. Dr. C.X. did not provide a rationale. The November 2016 VA examiner opined that the Veteran's Hodgkin's lymphoma is not caused by or the result of the Veteran's exposure to contaminated water at Camp Lejeune. The VA examiner stated that the American Cancer Society identifies only a few known risk factors for developing Hodgkin's lymphoma (HL). There include Epstein-Barr virus infection, age (most common between ages 15 to 40 and after age 55), gender (slightly more men than women), geography, family history, socioeconomic status, and HIV. Cancer Research UK adds that being status post solid organ transplant due to taking chronic immunosuppressive medications, having an autoimmune condition, having had non-Hodgkin's lymphoma, being a smoker, and being obese to this list of risk factors. The VA examiner further stated that when the U.S. Environmental Protection Agency studied the four solvents found in the drinking water at Camp Lejeune, they found no data indicating a link between Hodgkin's lymphoma and exposure to Trichloroethylene, Tetrachloroethylene, Benzene, or Vinyl Chloride. The Institute of Medicine conducted an extensive review of the literature which look at solvent exposure and an increased risk of cancer. This review identified multiple studies and found inadequate/insufficient evidence to determine whether an association exists between solvent exposure and an increased risk of developing Hodgkin's lymphoma. The VA examiner cited a medical study published in February 2015 in which the results of a study looking at 2266 benzene exposed workers showed no significant correlation between benzene exposure and Hodgkin's lymphoma when they looked at the total study population. The total study population included those with greater than 15 years since first exposure, those with greater than 30 years since first exposure, or those with low, medium, or high cumulative exposures. The November 2016 VA examiner cited the 2014 Agency for Toxic Substances and Disease Registry (ATSDR) study which evaluated a cohort of Camp Lejeune civilians with an average employment on base of 2.5 years. The study failed to identify a statistically significant elevated risk of Hodgkin's lymphoma in the exposed Camp Lejeune cohort compared to the general population. There was only one case in the Camp Lejeune cohort and none in a matched, control cohort at Camp Pendleton. In another 2014 study by the same authors, a group of Camp Lejeune marines and navy personnel with an average exposure of 18 months were compared to a comparable group of Camp Pendleton military personnel. The authors failed to find a statistically significant increase in Hodgkin's lymphoma in either cohort versus the general population or when the Camp Lejeune cohort was compared to the Camp Pendleton cohort. They were also unable to identify a statistically significant difference when trichloroethylene, vinyl chloride, and benzene exposures were looked at separately at high, medium, and low exposure levels. The VA examiner stated the Veteran was at Camp Lejeune for less than 6 months, which is far less than the study populations in either of the mentioned studies. The November 2016 VA examiner stated the National Research Council (NRC) in 2009 looked extensively at the health effects of exposure to contaminated drinking water at Camp Lejeune, and failed to find evidence of an increased incident of Hodgkin's disease. The NRC reported that "[t]here continues to be inadequate/ insufficient evidence to determine whether an association exists between chronic exposure to TCE or PCE and Hodgkin's disease. The VA examiner noted that while the ATSDR identified Hodgkin's disease as a "reported health problem in people of all ages from working with TCE and/or PTE," the references cited failed to identify a single analysis that showed a statistically significant correlation between exposure and an increased risk of developing Hodgkin's disease. Lastly, the November 2016 VA examiner stated that Dr. C.X.'s letter from August 2015 did not provide evidence to support the conclusion that the Veteran's Hodgkin's disease is more likely than not related to exposure to contaminated water at Camp Lejeune. There is no indication that the physician was aware of how few days the Veteran was at Camp Lejeune, how many years the Veteran was a smoker, how long it had been since the Veteran had been at Camp Lejeune, the level of chemical contamination in the groundwater, or what those chemicals were. The November 2016 VA examiner stated the Veteran was diagnosed with Hodgkin's lymphoma at the age of 56, is male, and has lived his life in the U.S. He has been a 10-pack year smoker and has a 20-pack year smoking history. At the time of his diagnosis with Hodgkin's disease, the Veteran had been known to be HIV positive for at least 14 years, many of those with a low CD4 count leaving him severely immunocompromised. The VA examiner found that while it is possible the Veteran's Hodgkin's disease is related to his exposure to contaminated water at Camp Lejeune, there is no scientific literature available to support this theory. The possibility does not come close to outweighing the causative possibilities of the Veteran's smoking, HIV status, age at diagnosis, and gender combined. The July 2020 VA examiner opined it is less likely than not the Veteran's Hodgkin's lymphoma was incurred or due to the Veteran's exposure to jet fuel and exhaust during active service. The July 2020 VA examiner reviewed and restated the research cited by the November 2016 VA examiner. The July 2020 examiner reasoned that the Veteran has multiple risk factors for developing Hodgkin's disease including smoking, HIV status, his age at diagnosis, and gender. In addition, jet fuels, their fumes and engine exhaust have also not been shown to be a risk factor for Hodgkin's disease. The Board finds the private opinion by Dr. C.X. less probative than the VA examiners' opinions. There is no indication that C.X. physically examined the Veteran or reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran's self-reported medical history, and does not consider the other potential risk factors shown in VA treatment records. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board finds the November 2016 and July 2020 VA opinions to be the most probative opinions and are dispositive of the nexus question presented in this case. In particular, the 2016 VA opinion reflects the expert's knowledge and skill in analyzing the data. The opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. The expert was familiar with the Veteran's pertinent medical history. The expert provided a thorough and detailed opinion about an area within his expertise. The opinion is the product of reliable principles and methods, and is the result of principles and methods reliably applied to facts. The expert clearly addressed Dr. C.X.'s underlying premise that the Veteran's Hodgkin's disease was due to exposure to contaminated water at Camp Lejeune. Consequently, the Board gives more probative weight to the November 2016 and July 2020 VA opinions. The Veteran believes his Hodgkin's disease 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. The issue is medically complex, as it requires knowledge of pathology and medical principles. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. 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 November 2016 and July 2020 VA opinions. Service connection may also be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309 (a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of Hodgkin's disease is listed as a chronic disease under 38 C.F.R. § 3.303 (b), the presumptive service connection provisions are applicable. The evidence does not reflect the Veteran's Hodgkin's disease manifested during service or within one year of service. Therefore, presumptive service connection for a chronic disease is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for Hodgkin's lymphoma is not warranted. 2. Entitlement to service connection for a lung condition, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina The Veteran contends that his lung condition is due to exposure to jet fuels and exhaust from trucks. See Transcript of June 2014 Board Hearing at pg. 10. Alternatively, he contends that his lung condition is due to exposure while stationed at Camp Lejeune. Id. at pg. 25. 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 lung condition 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 December 2018 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of shortness of breath, he did not have a diagnosis of a lung condition. Further, despite consistent treatment from October 2000 to May 2020, VA treatment records do not contain a diagnosis of a lung condition. Significantly, the Veteran has not provided any information regarding any alleged functional impairment resulting from a lung condition. See 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. The record does not reflect the Veteran experiences pain in his lungs or chest and therefore, the medical evidence does not establish a distinct clinical diagnosis of a lung condition. The evidence therefore supports a finding that there is no diagnosis a lung condition. The Board has considered the guidance of Saunders 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. The Veteran, however, has not described any pain related to his lungs. Thus, the competent medical evidence which found no evidence of a lung condition is afforded significant weight by the Board in this case. While the Veteran believes he has a current diagnosis of a lung condition, he is not competent to provide a diagnosis in this case. The issue is 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. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a lung condition is not warranted. 3. Entitlement to service connection for residuals of a head injury The Veteran contends that his residuals of a head injury are due to a physical assault. See Transcript of June 2014 Board Hearing at pg. 24. Alternatively, he contends that his residuals of a head injury are due to a helicopter incident in which the helicopter "slammed to the ground." Id. at pgs. 21-22. 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 disability manifested by residuals of a head injury 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 2016 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of dizziness, he did not have a diagnosis for residuals of a head injury. Further, despite consistent treatment from October 2000 to May 2020, VA treatment records do not contain a diagnosis of residuals of a head injury. Significantly, the Veteran has not provided any information regarding any alleged functional impairment resulting from residuals of a head injury. See 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. The record does not reflect the Veteran experiences pain in his head and therefore, the medical evidence does not establish a distinct clinical diagnosis of residuals of a head injury. The evidence therefore supports a finding that there is no diagnosis of residuals of a head injury. The Board has considered the guidance of Saunders 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. The Veteran, however, has not described any pain related to his head. Thus, the competent medical evidence which found no evidence of residuals of a head injury is afforded significant weight by the Board in this case. While the Veteran believes he has a current diagnosis of residuals of a head injury, he is not competent to provide a diagnosis in this case. The issue is 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. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for residuals of a head injury is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, Associate 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.