Citation Nr: 21074640 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-31 438 DATE: December 15, 2021 ORDER Service connection for diabetes mellitus type II is denied. Service connection for neuropathy, right upper extremity is denied. Service connection for neuropathy, left lower extremity is denied. Service connection for neuropathy, left upper extremity is denied. Service connection for neuropathy, right lower extremity is denied. Service connection for kidney stones is denied. REMANDED Entitlement to service connection for stomach and colon polyps with wedge resection is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for iron deficiency anemia is remanded. Entitlement to service connection for chronic kidney disease, kidney failure, and removal of the right kidney is remanded. Entitlement to service connection for nocturia is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding the Veteran's diabetes is due to his service, including exposure to contaminated water at Camp Lejeune. 2. The evidence shows peripheral neuropathy is due to diabetes. 3. The evidence does not show kidney stones during the claim period. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for neuropathy, right upper extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for neuropathy, left lower extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for neuropathy, left upper extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for neuropathy, right lower extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for service connection for kidney stones have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from December 1974 to December 1978. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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" also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). A veteran, who had no less than 30 days of service at Camp Lejeune during the period from August 1, 1953, to December 31, 1987, shall be presumed to have been exposed to contaminants in the water supply during such service. Contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride. Certain diseases are presumed to be associated with exposure to these contaminants in the water supply at Camp Lejeune. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service connection for diabetes mellitus type II Based on the evidence, the Board finds the criteria for service connection for diabetes have not been met. 38 C.F.R. § 3.303. First, the evidence shows a current disability. Private and VA treatment records show diagnosis of and treatment for diabetes mellitus type II beginning in 2006. Similarly, the October 2020 examiner diagnosed diabetes. Thus, the first element of service connection is established. See Holton, 557 F.3d at 1366. Next, the evidence does not show diabetes during service, but the Veteran was exposed to contaminated water while serving at Camp Lejeune. The Veteran's service treatment records are silent for diagnosis or treatment for diabetes or elevated glucose. In the December 2018 hearing, the Veteran reported being diagnosed with diabetes many years after service. Service personnel and medical records confirm that the Veteran served at Camp Lejeune in 1977 and 1978, during the time when contaminants were present in the water supply. See 38 C.F.R. § 3.307(a)(7). Thus, in-service onset of diabetes is not shown, but in-service exposure to water contaminants is established. Third, the weight of the evidence is against finding diabetes is associated with contaminated water at Camp Lejeune. Diabetes is not among the diseases presumed associated with contaminated water at Camp Lejeune. See 38 C.F.R. § 3.309(f). Indeed, in his November 2015 notice of disagreement, the Veteran wrote that diabetes was excluded from the list of disabilities associated with the reported health effects linked with TCE, PCE, benzene, and vinyl chloride, and further studies have not been done. The October 2020 VA examiner found the Veteran's diabetes was less likely than not related to his exposure to contaminated water at Camp Lejeune. The examiner noted that current medical evidence does not support a causal relationship between the contaminated water at Camp Lejeune and diabetes. The examiner further noted that the Veteran has several other risk factors for diabetes, including excess weight, older age, and a family history of diabetes. The Board finds the October 2020 examiner's opinion highly probative as it included consideration of relevant medical research and offered alternate causes for the Veteran's diabetes, which are consistent with his medical history. Moreover, there is no competent evidence of record to suggest that diabetes was caused or aggravated by kidney disease from which to find this claim intertwined with the other. Although the examiners have found the Veteran's diabetes was a contributing cause of kidney disease, there is no evidence to suggest a finding that kidney disease caused diabetes. Rather, the evidence shows diabetes predated kidney disease. Regarding aggravation, the Veteran reported that although his kidney disease limits the medications he can take for diabetes, his diabetes is controlled with his current medication and has not worsened since his diagnosis of kidney disease during the Board hearing. While the Veteran is competent to describe symptoms observable to his senses, he does not have the requisite medical training or education to competently determine if his diabetes is etiologically related to water contaminants or kidney disease as this requires specialized medical training, and the Board must rely on competent, medical evidence to find such a relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Given the record, the Board concludes that the greater weight of the competent, probative evidence is against finding the Veteran's diabetes is related to his exposure to contaminated water at Camp Lejeune. Thus, the evidence in this case does not reach the level of equipoise, and service connection for diabetes is not warranted at this time. See 38 U.S.C. § 5107(a). 2. Service connection for neuropathy, right upper extremity 3. Service connection for neuropathy, left lower extremity 4. Service connection for neuropathy, left upper extremity 5. Service connection for neuropathy, right lower extremity After reviewing the record, the Board finds the criteria for service connection for peripheral neuropathy have not been met. 38 C.F.R. § 3.303. First, the evidence shows a current disability. Private and VA treatment records show diagnosis of and treatment for neuropathy. The October 2020 examiner recorded peripheral neuropathy affecting all four extremities. Thus, the first element of service connection is satisfied. See Holton, 557 F.3d at 1366. Next, the evidence does not show neuropathy in service or that neuropathy is related to exposure to contaminated water during service at Camp Lejeune. The Veteran's service treatment records are silent for diagnosis or symptoms of neuropathy. Private and VA treatment records show neuropathy was diagnosed many years after the Veteran separated from service. As discussed above, the Veteran is presumed to have been exposed to contaminated water when he served at Camp Lejeune; however, neuropathy is not among the diseases presumed associated with the contaminants in the water supply. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The evidence does not reach the level of equipoise to find that neuropathy is related to contaminants in the water supply. Private treatment records list polyneuropathy from diabetes. Similarly, the October 2020 examiner found the Veteran's neuropathy was more likely than not due to his diabetes, noting the Veteran's report of neuropathy symptoms and diagnosis after the onset of his diabetes. The examiner further found that neuropathy was less likely than not related to contaminated water at Camp Lejeune. The Board finds the examiner's opinion probative as it provides a separate cause for neuropathy that is consistent with the other evidence of record and there is no competent medical evidence to suggest a connection between the Veteran's neuropathy and contaminated water at Camp Lejeune. Accordingly, the evidence does not reach the level of equipoise to find the Veteran's neuropathy is related to his service. 6. Service connection for kidney stones Based on the record, the Board finds the criteria for service connection for kidney stones have not been met, because he has not had kidney stones during the claim period. 38 C.F.R. § 3.303. Private treatment records from 2006, 2012, and 2013 show the Veteran has a history of kidney stones. However, treatment records do not show treatment for kidney stones since 2013. During the Board hearing, the Veteran reported having kidney stones off and on for approximately 12 years beginning around 2000. He denied having any current kidney stones. In a December 2019 statement, the Veteran wrote that he last passed a kidney stone around 2014 and that after taking medication, he no longer experienced any kidney stone symptoms. The October 2020 examiner also found the subjective and objective evidence did not show manifestation of kidney stones after 2014. The Board has reviewed the VA and private treatment records and sees no evidence of a kidney stone since the claim was received in July 2014. Without evidence that a disability was present within the period on appeal, there can be no valid claim for service connection. See Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). Accordingly, the claim for service connection of kidney stones cannot be granted. If the Veteran again experiences kidney stones, he should file a new claim. Further, any impairment of kidney function should be covered by his claim for chronic kidney disease and kidney failure, discussed below. REASONS FOR REMAND 1. Entitlement to service connection for stomach and colon polyps with wedge resection is remanded. Additional medical opinions are needed for the Veteran's claim. The Veteran asserts that his stomach and colon disability could be related to his exposure to contaminated water at Camp Lejeune. Private treatment records show the Veteran was treated for recurrent polyps and a mass of the stomach in May 2012 with resulting cholecystectomy with partial gastrectomy. In the October 2020 opinion, the examiner found that the Veteran's gastric and colon polyps were less likely than not related to contaminated water at Camp Lejeune, because the medical evidence does not support a causal relationship to gastric or colon polyps, and the Veteran has other risk factors such as chronic stomach inflammation and Helicobacter pylori (H. pylori) stomach infection. The Board finds the opinion inadequate as the examiner did not address the mass leading to the cholecystectomy. Additionally, the opinion is partially based on H. pylori as a risk factor, but the record does not show the Veteran had H. pylori at the time of the 2012 surgery. Next, the October 2015 examiner noted a long history of gout treatment with a variety of drugs that led to gastrointestinal distress. The Veteran is service connected for gout. While the October 2020 examiner found there is no physiologic relationship between the stomach conditions and gout, the examiner did not address whether medication for gout could cause or aggravate the Veteran's stomach and colon conditions. A new medical opinion is needed that addresses all the raised theories of entitlement, supported by thorough rationale. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). 2. Entitlement to service connection for GERD is remanded. A medical opinion is needed for the Veteran's GERD claim. As noted above, the October 2015 examiner found a long history of treatment for service-connected gout had led to gastrointestinal distress. The Board finds an opinion would be helpful to determine if the medications for gout caused or aggravated the Veteran's GERD. Additionally, the Veteran testified at the Board hearing to experiencing GERD symptoms after his stomach surgery, although private treatment records show the GERD diagnosis predates the surgery. Therefore, the GERD claim is intertwined with the stomach claim. 3. Entitlement to service connection for iron deficiency anemia is remanded. The October 2020 examiner opined that the Veteran's anemia was likely due to the Veteran's gastric and colon polyps. Therefore, the anemia claim also is intertwined with the claim for gastric and colon polyps. 4. Entitlement to service connection for chronic kidney disease, kidney failure, and removal of the right kidney is remanded. The Board finds additional medical opinions are needed for the kidney claim. The October 2015 and October 2020 examiners opined against the Veteran's kidney disease being related to his service, including to contaminated water at Camp Lejeune. However, neither examiner discussed the Veteran's reported history of being hospitalized for blood in his urine prior to service in December 1970, the March 1978 in-service lab work showing BUN of 9.0 and creatinine of 1.4, or whether the hemorrhagic masses in the kidneys, including the one necessitating removal of the right kidney, were related to exposure to contaminated water. Additionally, neither examiner had access to the medical research the Veteran submitted in October 2021 discussing kidney disease and gout. A new medical opinion is needed to address all relevant evidence and provide thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 5. Entitlement to service connection for nocturia is remanded. The Veteran submitted an article in November 2015 discussing nocturia as associated with chronic renal disease. Thus, the claim for nocturia is intertwined with the claim for chronic kidney disease. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain a new medical opinion for the Veteran's stomach and colon polyps. The medical expert should review the claims file and address the following: (a.) Were the polyps and/or mass in the Veteran's stomach and colon at least as likely as not related to his exposure to contaminated water at Camp Lejeune? (b.) Were the stomach and colon polyps and/or mass at least as likely as not caused by medication taken for the Veteran's gout? (c.) Were the stomach and colon polyps, mass, or residual condition at least as likely as not aggravated (worsened) by medication taken for the Veteran's gout? If aggravation is found, please provide a baseline level of disability prior to aggravation. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 3. Obtain a medical opinion for the Veteran's GERD. The expert should review the claims file and address whether the Veteran's GERD was at least as likely as not caused or aggravated (worsened) by the medication for his gout? If aggravation is found, the expert should provide a baseline level of disability prior to aggravation. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 4. Obtain a medical opinion for the Veteran's chronic kidney disease with kidney failure and removal of the right kidney. The expert should review the claims file and address the following: (a.) Did the Veteran's chronic kidney disease at least as likely as not begin during his service? Consider the Veteran's reported history of being hospitalized for blood in his urine prior to service in December 1970 and the March 1978 in-service lab work showing BUN of 9.0 and creatinine of 1.4. (b.) Were the hemorrhagic or other masses in the kidneys at least as likely as not related to his exposure to contaminated water at Camp Lejeune? If so, what are the residual effects of removal of these masses, including removal of the right kidney. Please consider that kidney cancer is a presumptive condition of contaminated water at Camp Lejeune. (c.) Was the Veteran's chronic kidney disease at least as likely as not caused by his service-connected gout? (d.) Was the Veteran's chronic kidney disease at least as likely as not aggravated (worsened) by his service-connected gout? If aggravation is found, provide a baseline level of disability prior to aggravation. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.