Citation Nr: 21073582 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-01 407 DATE: December 9, 2021 ORDER Entitlement to service connection for bilateral carpal tunnel syndrome, including as secondary to exposure to contaminated water at Camp Lejeune, has been withdrawn and is dismissed. Entitlement to service connection for a bilateral shoulder disability, including as secondary to exposure to contaminated water at Camp Lejeune, has been withdrawn and is dismissed. Entitlement to service connection for acromegaly, including as secondary to exposure to contaminated water at Camp Lejeune, is granted. REMANDED Entitlement to service connection for chronic kidney disease, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for mild cognitive functional impairment with white matter ischemia disease and poor sleep, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for migraine headaches, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for fatty liver infiltration, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a brain or pituitary tumor, and residuals thereof, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for bilateral eye disease, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for hypertension, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection to joint disease, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a lumbar spine disability, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for cardiomyopathy, including as secondary to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for a frontal lobe injury, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. On the record at the July 2021 hearing and prior to the promulgation of a decision in the appeal, the Veteran, with advice of counsel, indicated that he wanted to withdraw the appeal as to the claims of service connection for bilateral carpal tunnel syndrome and a bilateral shoulder disability. 2. The evidence is at least in equipoise as to whether the Veteran's acromegaly is related to exposure to contaminated water at Camp Lejeune during his period of active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for bilateral carpal tunnel syndrome. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for a bilateral shoulder disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for acromegaly have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April to August 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in May 2016. He testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2021. Copies of the transcripts have been reviewed and associated with the claims file. Service Connection 1. Entitlement to service connection for bilateral carpal tunnel syndrome, including as secondary to exposure to contaminated water at Camp Lejeune; 2. Entitlement to service connection for a bilateral shoulder disability, including as secondary to exposure to contaminated water at Camp Lejeune. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d). At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing. 38 C.F.R. § 19.55. At the July 2021 Board hearing, the Veteran indicated that he wished to withdraw his appeal as to the issues of entitlement to service connection for bilateral carpal tunnel syndrome and a bilateral shoulder disability. The Board notes that a verbal withdrawal of an appeal at a hearing is effective "only where it is (1) 'explicit;' (2) 'unambiguous;' and (3) 'done with a full understanding of the consequences of such action on the part of the [veteran].'" See Acree v. O'Rourke, 891 F.3d 1009, 1012-1013 (Fed. Cir. 2018) (quoting DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)) (explaining that the Board must consider all three prongs of the DeLisio standard when determining whether a verbal withdrawal of a claim is effective). In the present case, the Veteran, with the guidance of his private counsel, decided to withdraw the appeals of service connection for bilateral carpal tunnel syndrome and a bilateral shoulder disability. On the record, the undersigned explained the process and implications of withdrawing the appeals. Thus, the withdrawal was confirmed by the Board prior to the promulgation of a decision on the appeals. As such, there remains no allegations of error of fact or law for appellate consideration as to the issues. Accordingly, the Board has no jurisdiction to review the appeals of entitlement to service connection for bilateral carpal tunnel syndrome and a bilateral shoulder disability. 2. Entitlement to service connection for acromegaly, including as secondary to exposure to contaminated water at Camp Lejeune. Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §1110; 38 C.F.R. § 3.303(a). Service connection requires 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). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). Moreover, certain diseases associated with exposure to contaminated water will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The veteran must have served at least 30 days at Camp Lejeune to obtain the presumption of exposure to contaminants in the water supply. See 38 C.F.R. § 3.307 (a)(7)(iii). Furthermore, service connection can also be established directly by showing that the disease was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). 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). In the present case, the Veteran served at Camp Lejeune from July 18 to August 27, 1985. Thus, he is presumed to have been exposed to the contaminants in the water supply. See 38 C.F.R. § 3.307(a)(7)(iii). Following service, in July 2004, a Magnetic Resonance Image (MRI) revealed a pituitary tumor. He subsequently underwent surgery for removal of the tumor. A November 2004 MRI of the brain revealed post-surgical changes in the pituitary gland without evidence of a residual tumor. He was subsequently diagnosed with acromegaly in November 2004. The Veteran submitted a medical opinion by E.Y., M.D., in April 2016. Dr. E.Y. concluded that the Veteran was disabled due to complications of acromegaly stemming from being heavily contaminated in the 1980s while serving at Camp Lejeune. The effects of the exposure to his toxicity started to appear in the late 1990s with progression in the 2000s and the development of a brain tumor, which was 90 percent removed in 2004. This caused high elevations of growth hormones, which in turn caused his acromegaly. His acromegaly continues to worsen. After a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's acromegaly was incurred due to his exposure to the contaminated water at Camp Lejeune. In this regard, Dr. E.Y. concluded that the Veteran's acromegaly stemmed from the heavily contaminated water at Camp Lejeune. The effects of his exposure manifested in the late 1990s and the subsequently development of a brain tumor, which led to his acromegaly. In view of the foregoing, and in consideration of the credible medical evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's acromegaly was incurred in service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND 1. Entitlement to service connection for chronic kidney disease, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 2. Entitlement to service connection for mild cognitive functional impairment with white matter ischemia disease and poor sleep, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 3. Entitlement to service connection for migraine headaches, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 4. Entitlement to service connection for fatty liver infiltration, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 5. Entitlement to service connection for a brain or pituitary tumor, and residuals thereof, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 6. Entitlement to service connection for bilateral eye disease, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 7. Entitlement to service connection for hypertension, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 8. Entitlement to service connection to joint disease, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 9. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 10. Entitlement to service connection for a lumbar spine disability, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 11. Entitlement to service connection for cardiomyopathy, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded; 12. Entitlement to service connection for a frontal lobe injury, including as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Throughout the rating period on appeal, the Veteran was assessed with migraines, chronic kidney disease, mild cognitive functional impairment with white matter ischemic disease, hypertension, obstructive sleep apnea, cardiomyopathy, joint pains, fatty liver infiltration, and degenerative changes and scoliosis of the spine. He asserts that these disabilities are secondary to his exposure to contaminated water at Camp Lejeune and/or secondary to his pituitary tumor and/or acromegaly. As discussed, the Veteran underwent surgery for removal of a pituitary tumor in 2004. However, it is unclear if he currently has any residuals of this tumor. An April 2017 treatment record indicated that his pituitary tumor compressed on the optic nerves. However, it is unclear if he has a current eye disability. Moreover, the Veteran's treatment records reveal that he has manifestations of joint pain related to his now service-connected acromegaly. However, it is also unclear if he has a current diagnosis, pain that results in functional impairment of earning capacity, and/or a separate and distinct disability secondary to his now service-connected acromegaly. In addition, an acromegaly consultation submitted in September 2007 indicated that he had many sequelae of acromegaly, including OSA, herniated discs/joint issues, hypertension, cardiomyopathy, and chronic kidney disease. Again, it is unclear if these are separate and distinct disabilities secondary to his now service-connected acromegaly. Furthermore, the Veteran submitted a medical opinion in February 2014, at which time the physician concluded that renal toxicity, liver effects, and neurobehavior effects were most likely caused by or a result of volatile organic compounds in the drinking water. The physician reasoned that he started developing unusual neurobehavioral symptoms, tumor, kidney, and liver disease and later learned of the volatile organic compounds in the drinking water. After a review of the evidence, the Board finds that this opinion is insufficient to determine the present claims. In this regard, the diagnosed disabilities, if any, that the physician is relating to the contaminated water exposure is unclear given that he indicated "renal toxicity, liver effects, and neurobehavior effects" were caused by the drinking water at Camp Lejeune. VA medical opinions were issued in May 2015, at which time the examiner concluded that the Veteran's chronic kidney disease, mild cognitive functional impairment, headaches, and fatty infiltration of the liver were not related to his exposure to contaminated water given that they were not listed in the elevated risk of diseases. After a review of the evidence, the Board finds that these opinions are insufficient to determine the present claims. In this regard, the examiner failed to provide an opinion regarding whether the claimed disabilities were directly related to the contaminated water regardless of whether they were on the presumptive or elevated risk list. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After a review of the evidence, the Board finds that additional medical opinions are warranted to determine if the Veteran has any current residuals from his brain or pituitary tumor, the relationship of his claimed disabilities to his brain or pituitary tumor and now service-connected acromegaly, and whether any of the claimed disabilities are directly related to his conceded exposure to the contaminated water at Camp Lejeune. Lastly, the Board notes that the VistA images associated with the Veteran's VA treatment records and any updated private treatment records should be requested and associated with the claims file on remand. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from January 2018 to the present. 2. Obtain and associate with the claims file the VistA images associated with the Veteran's VA treatment records, including the March 2017 eye consultation and images. 3. Ask the Veteran to identify any updated pertinent private treatment records for his pending claims and furnish the appropriate authorization for the release of the medical records. If he fails to furnish the necessary release for private treatment records, he should be advised to obtain the records and submit them to VA. 4. After completion of #1, #2, and #3, schedule the Veteran for VA examination(s) to determine the nature and etiology of chronic kidney disease, cognitive functional impairment, headaches, fatty liver infiltration, brain or pituitary tumor, eye disease, hypertension, joint disease, obstructive sleep apnea (OSA), back disability, cardiomyopathy, and frontal lobe injury. A copy of the claims file, including this remand, must be reviewed and such review should be noted in the examination report. The examiner should respond to the following: A. Does the Veteran have a current brain or pituitary tumor, or residuals thereof? If so, please list the residuals related to the Veteran's brain or pituitary tumor. Please note that a current disability is determined from the date of the claim, or February 2014, to the present. B. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's chronic kidney disease, cognitive functional impairment, headaches, fatty liver infiltration, brain or pituitary tumor, eye disease, hypertension, joint disease, OSA, back disability, cardiomyopathy, and/or frontal lobe injury were incurred in and/or otherwise etiologically related to his period of active service, including his conceded exposure to contaminated water at Camp Lejeune? C. If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran's chronic kidney disease, cognitive functional impairment, headaches, fatty liver infiltration, brain or pituitary tumor, eye disease, hypertension, joint disease, OSA, back disability, cardiomyopathy, and/or frontal lobe injury were caused by his brain or pituitary tumor and/or now service-connected acromegaly? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran's chronic kidney disease, cognitive functional impairment, headaches, fatty liver infiltration, brain or pituitary tumor, eye disease, hypertension, joint disease, OSA, back disability, cardiomyopathy, and/or frontal lobe injury have been aggravated (any incremental increase in disability) by his brain or pituitary tumor and/or now service-connected acromegaly? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of chronic kidney disease, cognitive functional impairment, headaches, fatty liver infiltration, brain or pituitary tumor, eye disease, hypertension, joint disease, OSA, back disability, cardiomyopathy, and/or frontal lobe injury prior to aggravation? D. If there is no diagnosed disability for joint pain, is it at least as likely as not (probability of at least 50 percent) that any pain reaches the level of a functional impairment of earning capacity? Describe the impairment caused. If so, is it at least as likely as not (50 percent probability or more) that his pain was incurred in and/or etiologically related to his period of active service, including the conceded exposure to contaminated water at Camp Lejeune, caused by his now service-connected acromegaly, and/or aggravated by his now service-connected acromegaly? The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.