Citation Nr: 21074467 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-36 265 DATE: December 15, 2021 ORDER Entitlement to service connection for a left breast disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for a bilateral hip disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for a bilateral leg disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for a bilateral shoulder disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. REMANDED Entitlement to a rating in excess of 10 percent for a left inguinal hernia with residual pain due to ilioinguinal nerve damage is remanded. FINDINGS OF FACT 1. The most probative evidence establishes that the Veteran's left breast disability was not incurred in or otherwise causally related to his active service. 2. The Veteran's bilateral hip disability was not noted in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease. 3. The most probative evidence establishes that the Veteran's bilateral leg disability was not incurred in or otherwise causally related to his active service. 4. The most probative evidence establishes that the Veteran does not have a bilateral shoulder disability which was incurred in or was otherwise causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left breast disability, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a bilateral hip disability, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a bilateral leg disability, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a bilateral shoulder disability, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to July 1980, and from April 1982 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2013 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent disability rating for the Veteran's service-connected left inguinal hernia with residual pain and denied service connection for left breast, bilateral hip, leg, and shoulder disabilities, respectively. In February 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran was previously represented by Amy Fochler, Esq. See August 2018 VA Form 21-22a. In January 2019, however, the Veteran revoked power of attorney in favor of Ms. Fochler. At his February 2019 Board hearing, the Veteran indicated that he had not been satisfied with Ms. Fochler's representation because she had failed to communicate with him. He indicated that he had been unable to find another representative and therefore elected to proceed pro se. This matter was previously before the Board in March 2020. At that time, the Board remanded the claims for further evidentiary development, to include VA examinations. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, "[t]o establish a right to compensation for a present disability, a Veteran must show: "(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"the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Veterans who served no less than 30 days at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 are presumed to have been exposed during such service to 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)(iii). For veterans meeting these service requirements, the following diseases shall be service-connected if manifested to a compensable degree at any time after service even though there is no record of such disease during service: kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). The Veteran's military personnel records indicate that he was stationed at Camp Lejeune from May 1982 for a period of at least 30 days. Therefore, he is presumed to have been exposed during that service to contaminants in the water supply. 38 C.F.R. § 3.307(a)(7). However, the Veteran's claimed disabilities are not among the eight diseases entitled to presumptive service connection based on exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). Nonetheless, service connection may be established with evidence of actual causation. 38 C.F.R. § 3.309(e); cf. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left breast disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. 2. Entitlement to service connection for a bilateral hip disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. 3. Entitlement to service connection for a bilateral leg disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. 4. Entitlement to service connection for a bilateral shoulder disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. The Veteran contends that his left breast, bilateral hip, leg, and shoulder disabilities were caused by exposure to contaminated water at Camp Lejeune. The Veteran also asserts that he did a "bunch of heavy lifting," to include artillery, during active duty. See February 26, 2019 Transcript of Hearing, pages 4, 8-9. The Veteran's service treatment records (STRs) are negative for complaints, observations, or treatment for left breast, bilateral hip, leg, or shoulder disabilities. At his January 1985 separation examination, clinical evaluation of the Veteran's chest, upper and lower extremities, and musculoskeletal system was normal. See January 1985 Report of Medical Examination. Post-service treatment records noted diagnoses of bilateral gynecomastia and osteoarthritis of the bilateral hips, as well as a history of leg weakness and pain and shoulder pain from presumed arthritis. See 2013-15 VA treatment records. At the February 2019 Board hearing, noted above, the Veteran testified that he believed that his disabilities were caused by exposure to contaminated water at Camp Lejeune. He also testified that he did a "bunch of heavy lifting," to include artillery, during active duty. See February 26, 2019 Transcript of Hearing, pages 4, 8-9. VA medical opinions were obtained in June 2020. The Veteran's claims file was reviewed. Regarding the Veteran's left breast disability, the examiner opined in pertinent part, [The Veteran] does not have any risk factors for the development of gynecomastia. I do not find any post military occupations or exposures in the presented documentation. The ATSDR is silent on gynecomastia and the contaminants found in Camp Lejeune contaminated water. A literature search of the National Library of Medicine found one article containing gynecomastia and TCE, PCE, benzene or vinyl chloride. The medical literature would not support causality for gynecomastia and exposure to the contaminants found at Camp Lejeune. Therefore, the diagnosis of gynecomastia is less likely as not related to or caused by exposure to contaminated water at Camp Lejeune. With regard to the Veteran's bilateral hip disability, the examiner opined in pertinent part, [The Veteran] does not have any risk factors for the development of bilateral hip arthritis. He did have a physically demanding occupation while in the military as a field battery artillery man. I do not find any post military occupations or exposures in the presented documentation. The ATSDR is silent on hip arthritis and the contaminants found in Camp Lejeune contaminated water. The medical literature does not support a connection between hip arthritis and the contaminants found in the drinking water at Camp Lejeune. Therefore, the diagnosis of hip arthritis is less likely as not related to or caused by exposure to contaminated water at Camp Lejeune. Regarding the Veteran's bilateral leg disability, the examiner opined in pertinent part, [The Veteran] does not have any risk factors for the development of bilateral leg cramping/weakness. He did have a physically demanding occupation while in the military as a field battery artillery man. The lumbar spine MRI dated 2/28/14 showed L4 disk extrusion and right nerve root compression. There was moderately severe foraminal stenosis L3-L5. This may possibly explain the symptoms of leg cramping/weakness. I do not find any post military occupations or exposures in the presented documentation. The ATSDR is silent on leg cramping/weakness and the contaminants found in Camp Lejeune contaminated water. The medical literature does not support a connection between leg cramping/weakness and the contaminants found in the drinking water at Camp Lejeune. Therefore, the diagnosis of leg cramping/weakness is less likely as not related to or caused by exposure to contaminated water at Camp Lejeune. Regarding the Veteran's bilateral shoulder disability, the examiner opined in pertinent part, [The Veteran] does not have any risk factors for the development of bilateral shoulder pain. He did have a physically demanding occupation while in the military as a field battery artillery man. I do not find any post military occupations or exposures in the presented documentation. The ATSDR is silent on shoulder pain and the contaminants found in Camp Lejeune contaminated water. The medical literature does not support a connection between shoulder pain and the contaminants found in the drinking water at Camp Lejeune. Therefore, the diagnosis of shoulder pain is less likely as not related to or caused by exposure to contaminated water at Camp Lejeune. The Veteran was again afforded VA examinations in July 2021. The examiner noted diagnoses of bilateral gynecomastia, degenerative arthritis of the bilateral hips, and bilateral lower extremity muscle cramps. While the examiner noted the Veteran's reports of intermittent bilateral shoulder pain, the examiner did not diagnose the Veteran with a shoulder disability. After examination of the Veteran and review of the claims file, the examiner rendered negative etiological opinions. Regarding, the Veteran's left breast disability, the examiner opined, The Veteran was diagnosed with symptomatic gynecomastia in 2015. He was experiencing breast pain and swelling. A mammogram completed at that time was negative for malignancy and positive for bilateral gynecomastia. His symptoms resolved within two weeks and he did not seek further treatment for his condition. Causes of gynecomastia include medications, HIV treatment, herbal products, cirrhosis, starvation, hypogonadism, neoplasms, hyperthyroidism, and idiopathic occurrence. There is no correlation between gynecomastia and heavy lifting. It is less likely than not the veteran's gynecomastia is due to heavy lifting during service. With regard to the Veteran's bilateral hip disability, the examiner concluded, The veteran's service treatment record is silent for complaint of hip pain. The veteran was diagnosed with bilateral degenerative hip arthritis in 2020. He states that he started having pain in his hips in 2013 on exam today. The veteran developed hip pain 27 years after separation from service. He was diagnosed with degenerative arthritis, and the number one risk factor for developing arthritis is age. It is less likely than not the veteran[']s bilateral degenerative arthritis was caused by heavy lifting during service. Regarding the Veteran's bilateral leg disability, the examiner determined, The veteran[']s service treatment records are silent for complaint of or treatment for bilateral leg disability. On exam the veteran was diagnosed with bilateral lower extremity muscle cramps. The veteran reports these symptoms started in 2013, 27 years after separation from service. There is no connection between his muscle cramps and heavy lifting in service. It is less likely than not the veteran[']s bilateral lower extremity muscle cramps were caused by or incurred during service. With regard to the Veteran's bilateral shoulder disability, the examiner concluded, No chronic diagnosis is made for bilateral shoulder condition. Objective exam is normal. Symptoms are subjective only. A Nexus has not been established. The veteran[']s service treatment records are silent for complaint of bilateral shoulder pain. On exam today a shoulder diagnosis was not provided, as there was no pathology noted on the exam. After a review of the evidence, the Board finds that service connection is not warranted for left breast, bilateral hip, leg, or shoulder disabilities. With regard to the first element of a service connection claim, the evidence shows that the Veteran has current disabilities of his left breast, bilateral hips, and bilateral legs. The July 2021 VA examiner noted diagnoses of bilateral gynecomastia, degenerative arthritis of the bilateral hips, and bilateral lower extremity muscle cramps. Regarding the Veteran's claimed bilateral shoulder disability, the July 2021 VA examiner did not find a shoulder disability. The Board observes the Veteran's VA treatment records which noted shoulder pain from presumed arthritis, however, there is no indication that arthritis was confirmed with X-ray findings. The Board also notes that "disability" as defined in 38 U.S.C. §§ 1110 and 1131 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and that pain alone can reach the level of a functional impairment of earning capacity. Saunders v. Wilkie, No. 2017-1466, Fed. Cir. (April 3, 2018). In this case, however, there is no indication, nor is it contended, that the Veteran experienced an in-service injury or disease which caused a functional impairment in earning capacity. While the record contains the Veteran's statement that he is currently experiencing bilateral shoulder problems, there is no diagnosed disability; and there is no indication that the Veteran's condition reached the level of a functional impairment of earning capacity. Assuming arguendo that the Veteran has a current bilateral shoulder disability, the claim nonetheless fails for lack of nexus. In addressing the second element, as noted above, the Veteran's military personnel records indicate that he was stationed at Camp Lejeune from May 1982 for a period of at least 30 days. Therefore, he is presumed to have been exposed during that service to contaminants in the water supply. 38 C.F.R. § 3.307(a)(7). Additionally, the Veteran has reported doing a "bunch of heavy lifting," to include artillery, during active duty. The Board notes that the Veteran's personnel records indicate that his MOS was a field artillery batteryman, a position generally consistent with lifting heavy artillery. Therefore, to the extent the record shows an in-service injury, the second element of service connection has been met. With respect to the third element, the nexus requirement, the Board finds that the probative evidence is against a finding that the Veteran's left breast, bilateral hip, leg, and claimed shoulder disabilities are causally related to active service. The Board assigns great probative weight to the June 2020 VA medical opinions, as the examiner reviewed the Veteran's claims file in its entirety. After considering the record, the examiner concluded that the Veteran's disabilities were not causally related to active duty. The examiner provided a reasoned conclusion and clear rationale to support his determination that the Veteran's left breast, bilateral hip, leg, and claimed shoulder disabilities were not causally related to service. He considered the Veteran's reports of symptomatology, but ultimately explained that the current pathology of the Veteran's disabilities was inconsistent with exposure to contaminated drinking water at Camp Lejeune, particularly in light of current medical literature. The Board also assigns great probative weight to the July 2021 VA examinations. After examination of the Veteran and thorough review of his claims file, the examiner concluded that the Veteran's disabilities were not causally related to active duty. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran's left breast, bilateral hip, leg, and claimed shoulder disabilities were not causally related to service. She considered the Veteran's reports of symptomatology, but ultimately explained that the current pathology of the Veteran's disabilities was inconsistent with heavy lifting in service. There is no medical opinion evidence to the contrary. The Board assigns less probative weight to the Veteran's hearing testimony indicating that his disabilities were caused by active duty. Although the Veteran is competent to describe symptoms, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical 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 had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the June 2020 and July 2021 VA examiners, given their clinical expertise and the rationales they provided. In reaching this decision, the Board has considered the fact that the Veteran has been diagnosed as having arthritis, an enumerated disease under 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the disability was not shown as chronic in service, did not manifest to a compensable degree within the presumptive period, and was not noted in service with attributable continuity of symptomatology. As set forth above, the Veteran's service treatment records contain no indication of arthritis. Notably, at his January 1985 separation examination, clinical evaluation of the Veteran's lower extremities and musculoskeletal system was normal. The post-service record on appeal shows that the Veteran was not diagnosed as having arthritis for decades after his separation from active service and well outside the applicable presumptive period. Based on the foregoing, as the probative evidence is against the Veteran's claims of service connection for left breast, bilateral hip, leg, and shoulder disabilities, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran's claims are denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a left inguinal hernia with residual pain due to ilioinguinal nerve damage is remanded. The Veteran contends that his left inguinal hernia is more severe than currently rated. A May 2015 VA examination, inter alia, noted a diagnosis of bilateral ilioinguinal neuropathy. The examiner characterized the neuropathy as mild incomplete paralysis of the ilioinguinal nerve, bilaterally. At the February 2019 Board hearing, noted above, the Veteran testified that he experienced infertility which he thought was related to his left inguinal hernia disability. See February 26, 2019 Transcript of Hearing, pages 6-7. A March 2021 VA treatment record noted diagnoses of erectile dysfunction and right testis atrophy and discomfort. See March 2021 Surgical Urology Note. Pursuant to the Board's March 2020 remand, the Veteran underwent a VA examination in July 2021 to determine the severity of his left inguinal hernia disability. The examiner noted that the Veteran gradually developed left groin pain, accompanied by a heavy hanging feeling in his testicles that felt like a ball of yarn. He was seen in medical and had a surgical repair of a left inguinal hernia and varicocele in September 1983. The examiner noted the Veteran's reports of doing well initially post-operatively until he resumed his warehouse duties which included lifting heavy furniture. He was then deployed and had to work with heavy munitions, which caused his groin pain to return along with numbness in his left thigh. Additionally, the Veteran reported constant scrotal pain and pain with palpation of the scrotum. He reported that the pain was worse in his left testicle. The Veteran also reported intermittent numbness in the left thigh. Physical examination showed a surgical scar in the left groin. An ultrasound appeared to show additional pathology, including a left varicocele, epididymal head cysts versus spermatoceles, and a small nonspecific cystic-appearing focus above the left scrotum, etiology indeterminate. The Board notes that VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and evidence of record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In that regard, the U.S. Court of Appeals for Veterans Claims (Court) has held that a Veteran can be rated separately for different manifestations of the same injury, where "none of the symptomatology for any one of [the] conditions is duplicative of or overlapping with the symptomatology of the other two conditions," and that such combined ratings do not constitute pyramiding prohibited by 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). In this case, the Board finds that the VA examination is inadequate. In that regard, the Board's March 2020 remand instructions directed the examiner to consider all symptoms and pathology associated with the Veteran's left inguinal hernia disability, to include an inguinal hernia; symptoms and pathology associated with the ilioinguinal nerve damage; a symptomatic varicocele; testicular atrophy; and other reproductive disabilities such as erectile dysfunction or infertility. However, it does not appear that the examiner addressed the Veteran's diagnosed bilateral ilioinguinal neuropathy which was characterized as mild incomplete paralysis of the ilioinguinal nerve in a May 2015 VA examination, the Veteran's hearing testimony regarding infertility, or VA treatment records dated in March 2021 noting diagnoses of erectile dysfunction and right testis atrophy. While the Board greatly regrets further delay, remand is required for an additional VA examination for full compliance with the Board's previous remand instructions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and severity of his service-connected left inguinal hernia with residual pain due to ilioinguinal nerve damage. (Continued on the next page) The examination report should identify all symptoms and pathology and indicate whether such is at least as likely as not associated with the service-connected disability, to include the following: an inguinal hernia; symptoms and pathology associated with the ilioinguinal nerve damage; a symptomatic varicocele; testicular atrophy; and other reproductive disabilities such as erectile dysfunction or infertility. 2. After conducting any additional development deemed necessary, the AOJ should reconsider the claim, considering all the evidence of record and documenting its consideration of whether all manifestations of the Veteran's service-connected left inguinal hernia with residual pain due to ilioinguinal nerve damage are appropriately rated, to include whether any separate compensable ratings are warranted. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.