Citation Nr: 21072653 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-15 438 DATE: December 3, 2021 ORDER Entitlement to service connection for a neurological disorder (also claimed as vertigo), to include as due to contaminated water at Camp Lejeune, is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's neurological disorder (also claimed as vertigo) did not have its onset in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a neurological disorder (also claimed as vertigo) have not been met. 38 U.S.C. §§, 5107 (2012); 38 C.F.R. §§ 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to October 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In February 2020, the Board reopened the claim for service connection for a neurological disorder and remanded the claim for further development. In June 2021, the Board again remanded this matter for an addendum VA medical opinion. Entitlement to service connection for a neurological disorder (also claimed as vertigo), to include as due to contaminated water at Camp Lejeune, is denied. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A Veteran is competent in certain situations to provide a diagnosis of a simple condition, but that is not the case with respect to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection may also be granted for specific diseases associated with exposure to contaminants in the water supply at Camp Lejeune listed in 38 C.F.R. § 3.309. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307. In such instances, service connection may be established despite the absence of evidence of such disease during the period of service. This presumption of service connection will only attach if the listed diseases manifest to a degree of 10 percent or more any time after service. The diseases listed are kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminated water-supply system at Camp Lejeune. These fourteen diseases are: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. The VA has conceded that Veterans, or Reservists, who had no less than 30 days of service at Camp Lejeune during the period beginning 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. 38 C.F.R. § 3.307 (a)(7)(iii). At the outset, the Board notes that the Veteran has claimed entitlement to service connection for a neurological condition. Specifically, he has referred to the claimed condition as vertigo. He contends that he incurred this condition from his exposure to the contaminated water at the Camp Lejeune Marine Corps Base in North Carolina, where he served between February 1971 to April 1971. The Board acknowledges that the Veteran did serve at Camp Lejeune, as it is consistent with the evidence of record. Therefore, he is presumed to have been exposed to contaminated water. 38 C.F.R. § 3.307 (a)(7)(iii). However, the claimed condition is not listed as a disease associated with exposure to the contaminated water at Camp Lejeune. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Thus, presumptive service connection is not warranted for the claimed condition. However, direct service connection can still be established under 38 C.F.R. § 3.303 (d) by showing that the disease or disability was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to contaminated water, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. Thus, the Board will consider whether service connection for the issue on appeal can be established on a direct basis. There is no dispute that the Veteran has been diagnosed with vertigo. See VA Examination Report dated July 2021. Service treatment records do not reflect any treatment or symptomatology related to the claimed condition. Indeed, no related diagnoses were rendered during service. Furthermore, there are no probative medical opinions in favor of the claim. In July 2021, a VA subject matter expert opined that the Veteran's vertigo was less likely than not related to his exposure to contaminated water while on active duty at Camp Lejeune. The examiner noted that the Veteran did not experience any episodes of vertigo until 30 years following such exposure. He further explained that the Veteran's period of exposure (61 days) was brief in duration and would be unlikely to result in an ongoing medical condition that presented over 30 years later. The examiner supported his opinion with medical literature that confirmed there was no causal link between this type of exposure and the claimed condition. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a neurological disorder, to include vertigo. In this regard, the Board places great probative weight on the July 2021 subject matter expert's opinion that the claimed condition is not related to the Veteran's active service. The examiner thoroughly reviewed the claims file and accurately summarized the related medical history, indicating that he was fully aware of the Veteran's condition. He offered an extensive discussion analyzing the pertinent evidence of record and explaining the basis for the opinion, namely the absence of an association between the claimed condition and the water contamination experienced by the Veteran during service. Furthermore, the examiner noted the Veteran's short duration of exposure and significant period of time between exposure and onset of the disabilities. The subject matter expert also supported his opinion with medical literature. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board appreciates that the Veteran believes that his claimed vertigo is related to his military service, and that he is competent to report his personal observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board affords this lay opinion no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issue in this case, determining whether this condition is due to an in-service disease or injury falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As the Veteran's lay opinion is not competent in this case, it is not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran's assertion that his neurological disorder, to include vertigo, was caused by his military service. As such, the preponderance of the evidence is against entitlement to service connection for a neurological disorder, to include vertigo. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.