Citation Nr: 21074370 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-45 409 DATE: December 15, 2021 ORDER Entitlement to service connection for diabetes mellitus, including as due to exposure to Camp Lejeune contaminated water, is denied. Entitlement to service connection for hypertension, including as due to exposure to Camp Lejeune contaminated water, is denied. Entitlement to service connection for a liver condition, including as due to exposure to Camp Lejeune contaminated water, is denied. Entitlement to service connection for a vertigo/equilibrium disorder, including as due to exposure to Camp Lejeune contaminated water, is denied. FINDINGS OF FACT 1. Diabetes mellitus, type II, did not have its onset during the Veteran's active service and is not otherwise etiologically related to such service, to include exposure to contaminated water while serving at Camp Lejeune; and was not present to a compensable degree within a year of the Veteran's separation from such service. 2. Hypertension did not have its onset during the Veteran's active service and is not otherwise etiologically related to such service, to include exposure to contaminated water while serving at Camp Lejeune; and was not present to a compensable degree within a year of the Veteran's separation from such service. 3. A liver condition did not have its onset during the Veteran's active service and is not otherwise etiologically related to such service, to include exposure to contaminated water while serving at Camp Lejeune; and was not present to a compensable degree within a year of the Veteran's separation from such service. 4. The Veteran has not been competently diagnosed with vertigo or an equivalent equilibrium condition. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 3. The criteria for service connection of a liver condition have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 4. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from September 1980 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2018 and June 2021, at which times the present issues were remanded for further development. The case has now been returned to the Board for further appellate action. Service Connection Diabetes Mellitus, Type II The Veteran contends that he has a disability of diabetes mellitus, type II (hereafter, "diabetes"), which is either directly related to his service as a result of exposure to contaminated water at Camp Lejeune or as a result of receiving the medication, Mefloquine, while on active duty. Addressing first the contentions in relation to the Veteran's service at Camp Lejeune, the Board notes that the Veteran's service at Camp Lejeune for greater than 30 days has been confirmed by his military personnel records and conceded by the VA. See August 2016, Statement of the Case. However, diabetes is not listed among the diseases presumed to be associated with the contaminated water at Camp Lejeune. As such, presumptive service connection is not applicable in this case. 38 C.F.R. § 3.309(f). Turning to the evidence of record, the Veteran does not aver that he has experienced his disability of diabetes since his active-duty service, and service treatment records are silent for any treatment or complaints of diabetes or any symptoms thereof. Rather, the Veteran contends that he was first diagnosed with diabetes in the 1990's. See October 2019, VA Examination Report. Considering the Veteran's own assertions along with the medical evidence of record, the Board finds that there is no suggestion that the Veteran has experienced ongoing symptoms of diabetes since the completion of his active-duty service, or that his claimed disability manifested to a compensable degree within one year of his service separation in September 1984. Therefore, considering this evidence, neither chronicity in service nor continuity of symptomatology since service has been shown. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Unavailability of presumptive service connection does not preclude a veteran from establishing proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (stating that the inapplicability of presumptive service connection "does not foreclose proof of direct service connection."). As to direct service connection consideration, the first element is established based upon the Veteran's reported initial diagnosis of diabetes in the 1990's. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a); see also October 2014, VA Treatment Record (reflecting the Veteran reporting living with diabetes for approximately 18 years at the time of treatment). As to the second element of service connection, in addition to asserting an injury of exposure to contaminated water, the Veteran has presented argument that his disability results from receiving the preventative medication for malaria, Mefloquine. See August 2015, NOD. As use of Mefloquine during the Veteran's active service has been conceded by the RO, the Board recognizes this claimed injury as also sufficiently establishing the second element of service connection. In support of the Veteran's claim, C.R.M., an advanced practice nurse (APNP) from the San Diego VA Medical Center (VAMC) provided a letter dated July 2018. The letter expresses that the Veteran is, "currently treated for Diabetes Mellitus, hypertension, hyperlipidemia, dizziness, loss of balance, and tinnitus." See July 19, 2018, Letter in Support of Claim. The letter goes on to state that it is C.R.M.'s professional opinion, "that the above listed health conditions are more likely than not related to his [the Veteran's] time in service and more specifically to his prolonged exposure to contaminated water at Camp Lejeune and Mefloquine Larium." No further discussion or analysis of the identified disabilities is included, but merely, a conclusory statement of opinion. For this reason, the Board finds that this opinion has no probative value to the issue at hand. There is no rationale provided, no supporting analysis of the etiology of the disabilities listed, or any explanation for the conclusory finding. An additional letter in support of the Veteran's claims was submitted by C.R.M. in August 2019. Although this letter contains more information, the opinion rendered therein offers little to no probative value for the same reasons set forth above. The letter provides a statement that C.R.M. has, "been involved in his [the Veteran's] care for over two years now and am familiar with his current disease status which includes hypertension, diabetes mellitus, chronic intermittent vertigo, and liver conditions." See August 29, 2019, Letter in Support of Claim. Again, the opinion provided merely states a conclusory finding of a causal relationship between exposure to contaminated water and diabetes. Accompanying the letter is a record of the Veteran's arguments and research in support of his claim, containing quotes and full paragraphs from various resources, including duplicated text from the National Library of Medicine which addresses endocrine-disrupting chemicals as related to diabetes. The reproduced portion of the text provided discusses that PCE and TCE (contaminants found within the water of Camp Lejeune), are listed as endocrine disrupting chemicals (EDCs). The text goes on to explain that some EDCs have been found to be associated with various diseases, including diabetes. This additional information, again, provides little to no probative value in the Veteran's case. First, the information is general and does not speak to the Veteran's specific onset of disability, accompanying high-risk health factors, etiology or progression of the disability of diabetes itself, or provide any rationale for the purported association between EDCs and diabetes. Second, the text does not support a conclusion that PCE and TCE have been associated with diabetes, but only that "some EDCs" have been. While the Board appreciates the additional information in consideration of the claim, for these reasons, it provides little probative value in assessing the Veteran's specific exposure and current disability of diabetes. In October 2019, the Veteran submitted to a VA examination. The examiner confirmed a diagnosis of diabetes, but provided a negative nexus opinion as to both claimed injuries of exposure to contaminated water and the use of the medication Mefloquine. In support of the examiner's conclusion, it was explained that diabetes has numerous risk factors; however, exposure to environmental contaminants is not one which is recognized by any reliable peer-reviewed study. The rationale goes on to express that there is no reliable medical literature which connects a diagnosis of diabetes to the exposure of contaminants such as those found within the water of Camp Lejeune during the challenged time period. As to the claim of injury of Mefloquine toxicity causing diabetes, the examiner explained that diabetes is not among the medically recognized complications or side-effects resulting from such use. The examiner provided the final conclusion that it is less likely than not that the Veteran's diabetes was incurred in or caused by his active service, to include as a result of exposure to contaminated water from Campy Lejeune or the use of the medication Mefloquine. An additional opinion was obtained in June 2020, further discussing the etiology of the Veteran's diabetes, and discussing the opinions provided by C.R.M., as outlined above. The examiner explained that diabetes is a metabolic disorder with genetics and dietary causes being among the most prevalent known risk factors. In addressing the conclusory opinion proffered by C.R.M., the examiner detailed that there was no scientific or factual support offered for those opinions, other than a finding that the Veteran served at Camp Lejeune for a period of approximately 2 months. In supporting the conclusion that the Veteran's diabetes was not caused by Mefloquine toxicity or water contaminants, the examiner cited to 54 medical sources in support of the overall opinion that there is no reliable medically confirmed association between them. In an additional opinion from August 2020, a VA examiner further addresses that there is no objective medical evidence which supports Mefloquine toxicity as a cause of diabetes. The Board finds that the October 2019 and June 2020 VA medical opinions are adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the October 2019 and June 2020 VA medical opinions are the most probative evidence of record. The Board has considered the lay evidence of record, including the Veteran's well-written arguments and vehement assertions of a nexus between his active service and diagnosed diabetes. The Board has also considered the written statement of the Veteran's spouse, submitted in support of his claim. However, the lay evidence of record is not competent in assessing the more complex medical question of the etiology of the disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the most probative evidence of record is demonstrated through the well-reasoned and supported VA examination reports of record, which contain clear rationale for the medical opinions contained therein. Overall, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection of diabetes is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Hypertension The Veteran maintains that his disability of hypertension is directly related to his active duty service due to exposure to contaminated water at Camp Lejeune, or alternatively, was caused by the medication Mefloquine as administered during the Veteran's active service. The Board notes that hypertension is not listed among the diseases presumed to be associated with the contaminated water at Camp Lejeune. As such, presumptive service connection is not applicable in this case. 38 C.F.R. § 3.309(f). Turning to the evidence of record, the Veteran's STRs do not reflect any diagnoses, complaints of, or treatment for hypertension and provide no indication that the Veteran experienced any symptoms that could be associated with the later 2004 diagnosis of the disability, as reported by the Veteran. See October 2019, VA Examination Report. This lengthy period without complaint or treatment weighs heavily against a finding that the claimed disability was incurred in-service or that the Veteran experienced continuous symptoms of such since service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Board finds that the most competent evidence of record demonstrates that neither chronicity in service nor continuity of symptomatology since service has been shown. 38 C.F.R. §§ 3.303(b), 3.309; Walker, 708 F.3d at 1331. Accordingly, service connection for hypertension on a presumptive basis is denied. As to direct service connection, in October 2019, the Veteran was provided an in-person VA examination for hypertension. The examiner confirmed the diagnosis and provided a full report on the progress of the condition as partially detailed by the Veteran's reported history of symptoms beginning approximately 15 years prior to the examination. A negative nexus opinion was also provided, detailing that neither environmental exposures nor Mefloquine toxicity is medically known as a cause of hypertension. The examiner unambiguously found, based upon supporting medical rationale, that the disability is less likely than not related to the Veteran's active service, to include from exposure to water contaminants at Camp Lejeune or through the administration of the medication, Mefloquine. A May 2020 VA examination report includes a negative nexus opinion concerning a correlation between the Veteran's exposure to contaminated water at Camp Lejeune and his later diagnosis of hypertension. The examiner explained that hypertension is a disability with numerous risk factors, including obesity. It was noted that the Veteran's VA treatment records indicate a positive diagnosis for obesity, a risk factor which is medically associated with an earlier onset and worsening control of hypertension. The examiner cited to studies by the National Academy of Science and the Agency for Toxic Substances and Disease Registration (ATSDR), which specifically addressed Camp Lejeune veterans and found no statistically elevated risks, increased hazards, or links between Camp Lejeune contaminated water exposure and hypertension. The opinion also addressed the correspondence from C.R.M., detailed above (supra pgs. 4-5) and discredited the opinion as lacking any scientific basis or rationale. Overall, the examiner opined that given the medical evidence, it is less likely than not that the Veteran's disability of hypertension is related to his military service and exposure to contaminants from Camp Lejeune. The Board finds that the October 2019 and June 2020 VA medical opinions are adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the October 2019 and June 2020 VA medical opinions are the most probative evidence of record. The Board has considered the positive evidence of record in support of the claim, including the letters from C.R.M. providing statements that there is a connection between the Veteran's active service and diagnosed hypertension. As detailed above, these statements offer no probative value to the issue at hand as they fail to provide a rationale and are merely conclusory. The Board has also considered the Veteran's assertion, as well as his wife's assertion, that Dr. A. verbally provided an opinion that the Veteran's irregularly shaped heart muscle may be due to toxic poisoning. The Board finds no probative value in this recitation of the physician's opinion as again, there is no medical basis or explanation provided. Furthermore, such opinion does not address the direct etiology of hypertension, although it could be surmised that the implication is that an irregularly shaped heart muscle led to the onset of hypertension, there is no medical finding of record drawing such conclusion. The Board finds that the most probative evidence of record is provided within the VA examination reports which include consideration of the relevant evidence or record, including the Veteran's personal assertions, and provide a supporting rationale for the conclusions reached. Overall, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection of hypertension is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Disability of the Liver The Veteran argues that he has a liver disability that is directly related to his active service due to exposure to contaminated water at Camp Lejeune, or alternatively, was caused by the medication Mefloquine as administered during his period of active duty. The Veteran has been diagnosed with fatty liver disease, which is not listed among the diseases presumed to be associated with the contaminated water at Camp Lejeune. The Veteran's STRs are silent for any complaints, diagnoses, or symptoms of a liver disability. Furthermore, while cirrhosis of the liver is considered a disability which may be subject to presumed service connection based upon chronicity, the Veteran's diagnosed liver condition is distinct from that disability. As such, presumptive service connection is not applicable in this case. 38 C.F.R. § 3.309(a), (f). During the October 2019 VA examination, the Veteran reported having been in a car accident in the 1990's and subsequently suffering from abdominal pain. The Veteran further reported that upon treatment for said pain, he underwent testing which showed abnormal liver enzyme counts requiring a biopsy, which resulted in a diagnosis of liver disease. In expressing that it is less likely than not that the Veteran's liver disability is related to his active service, to include as due to contaminants at Camp Lejeune or the use of the medication Mefloquine, the examiner explained that reliable medical studies and literature do not support such association. More specifically, as to the ingestion of the medication Mefloquine, the examiner discussed that none of the medical side-effects resulting from the medication treatment include long-term liver conditions of any kind. The VA examiner also explained that fatty liver disease has a clear diagnosis and etiology which is not related to either exposure to contaminants from Camp Lejeune waters or from the use of the medication Mefloquine. In a detailed analysis provided in a May 2020 VA examination report, the examiner explains that the Veteran's liver disability results from the build-up of too much fat in the liver, a condition which affects nearly 10-20 percent of Americans. The examiner goes on to explain that diabetes is a known risk factor for the disability, as is obesity, and dyslipidemia, all of which have been documented within the Veteran's medical treatment records. The examiner opined that the etiology of the Veteran's liver disability is readily identifiable based upon his medically documented risk factors and is associated with his diabetes, dyslipidemia, and obesity, not exposure to contaminants or toxicity. It was detailed that the onset of the disability, which presents with swelling, scarring, and liver disfunction, if due to toxicity, occurs at the time of exposure, and not with delayed onset. Because of the Veteran's disability presenting in the 1990's, approximately a decade after his Camp Lejeune service in 1981, the examiner explained that the lapse of time medically obviates a causal connection between the two. The examiner also discussed that the medical literature which suggests a connection is based upon prolonged, heavy, significant exposure, which is not the type of exposure that the Veteran would have had during his 2 month and 9-day service at Camp Lejeune. The Board finds that the October 2019 and June 2020 VA medical opinions are adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the October 2019 and June 2020 VA medical opinions are the most probative evidence of record. The Board has considered the evidence of record in support of the claim, however, finds it to lack probative value as there is no medical rationale or supporting competent explanation for asserting an association between the Veteran's diagnosed liver disability and his claimed injuries. As noted, the Board finds that the most probative evidence of record are the VA examination reports, which provide detailed analyses of the lay assertions, the opinions from nurse C.R.M. in support of the claim, and a discussion of the medical studies and science concerning the disability's etiology and known causes. Based upon the foregoing, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a liver disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Vertigo The Veteran asserts that he has a disability of vertigo which is related to his active service, to include as due to exposure to contaminants at Camp Lejeune or resulting from the use of the medication Mefloquine. The Board notes that vertigo is not listed among the diseases presumed to be associated with the contaminated water at Camp Lejeune. As such, presumptive service connection is not applicable in this case. 38 C.F.R. § 3.309(f). The Board is mindful that "neurobehavioral effects" is noted among the 15 diseases with "suggestive" evidence of an association to the contaminant exposure at Camp Lejeune. However, this is not enough to establish presumptive service connection for vertigo, and requires further evidence of a nexus between the conceded contaminant exposure and the disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service). Prior to consideration of any route for service connection, it must be established that there is a current disability to be claimed. In this case, the Board finds that the probative evidence of record does not establish the presence of the disability of vertigo. Turning to the evidence of record, the Veteran claimed a vertigo/ equilibrium disorder as being related to his active service. His STRs are silent for any such diagnosis, symptoms, or treatment. The first medical record suggesting such a diagnosis is from nurse C.R.M. in her letter dated July 19, 2018 in which she cites treating the Veteran for, "...Diabetes Mellitus, hypertension, hyperlipidemia, dizziness, loss of balance, and tinnitus." See July 19, 2018, Letter in Support of Claim. The Veteran's medical records up to that date do not reflect a diagnosis of vertigo, but rather, are either silent in this regard or merely note it as self-reported in the Veteran's medical history. Indeed, a private treatment note from April 2014 lists the Veteran's then-current diagnoses, which does not include any mention of symptoms or diagnosis of vertigo. Coinciding with that record is an April 2014 VA treatment note which reflects that the Veteran reported a medical history of vertigo while establishing new primary care treatment through the VA. Other than being contained within his self-reported medical history, the only medical treatment notation of a diagnosis within the Veteran's records is found in an April 2019 medical note with a "provisional diagnosis" of vertigo. However, in a letter dated August 29, 2019, nurse C.R.M. referencing that she had been involved in the care and treatment of the Veteran for over two years and was familiar with his disease status, to include "...chronic intermittent vertigo..." See August 29, 2019, Letter in Support of Claim. The Board notes that C.R.M.'s assertion of there being an established diagnosis or treatment for vertigo is discredited by her own medical reporting and treatment notes of record. Furthermore, the Board finds that the opinions she provides within her July 2018 and August 2019 letters, concerning any diagnosis or treatment, is without merit as she fails to cite to any supporting medical record or documentation providing a rationale or scientific basis for her conclusions. As such, the Board finds that her opinions and notations are not only void of probative value, but are inherently unreliable. The reliable evidence of record, including the ongoing treatment notes, private medical records, and VA examination reports, make no such conclusive finding of a diagnosis for vertigo. In fact, during the Veteran's October 2019 VA examination, he denied experiencing the symptom of vertigo, which is described as a feeling of experiencing the "room spinning." The examiner explained that vertigo, itself, is not a diagnosis- per se- but rather, a symptom of a peripheral vestibular disorder which causes the sensation of a spinning room. The Veteran denied experiencing this symptom. Based upon an in-person examination and review of the Veteran's records, the examiner concluded that there were insufficient medical findings to support a diagnosis of vertigo. The symptoms described by the Veteran did not amount to such a finding, and the medical history does not contain reports of such symptoms or treatment thereof. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (1997). Given the lack of any evidence of a currently diagnosed condition, the Board finds that service connection for vertigo is not warranted. (Continued on the next page) The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable as to the instant claim. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.