Citation Nr: 21076643 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-04 127A DATE: December 27, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for asthma, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for a heart disability, to include as due to exposure to water contaminants at Camp Lejeune is denied. Entitlement to service connection for hypertension is denied. Entitlement to service-connection for carpal tunnel of the right upper extremity is denied. Entitlement to service-connection for carpal tunnel of the left upper extremity is denied. Entitlement to a total disability individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A left knee disability did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 2. A knee disability did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 3. The Veteran's asthma did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 4. COPD did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 5. A heart disability did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 6. Hypertension did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 7. Carpal tunnel of the right upper extremity did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 8. Carpal tunnel of the left upper extremity did not manifest in active service, or within one year of service separation, and is not attributable to service, to include in-service exposure to contaminated water at Camp Lejeune. 9. The most probative evidence indicates that the Veteran's service-connected vertigo did not preclude him from substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a right knee disability, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for asthma, to include as due to exposure to contaminants at Camp Lejeune have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for COPD, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for a heart disability, to include as due to exposure to water contaminants at Camp Lejeune have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for hypertension, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for entitlement to service-connection for carpal tunnel of the right upper extremity, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for entitlement to service-connection for carpal tunnel of the left upper extremity, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). SERVICE CONNECTION Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309 (f). The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin's lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson's disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309 (f). The Veteran has claims none of these problems. Entitlement to service connection for left and right knee disabilities The Veteran alleges that his current left and right knee disabilities are related to his active duty service. The Veteran has also alleged, generally, that his condition is somehow due to exposure to contaminated water while he was stationed at Camp Lejeune. At the outset, the Board notes that it is beyond dispute that the Veteran has been diagnosed with osteoarthritis of the bilateral knees. See March 2021 VA examination, VA treatment records showing mild to moderate osteoarthritis of the bilateral knees. The Veteran's service treatment records are silent for any complaints, treatment or diagnosis of a knee or lower extremity disability. The Veteran's November 1965 pre-induction examination found the Veteran's lower extremities to be normal. An October 1967 report of medical examination similarly found his lower extremities to be normal. On his separation exam in January 1968, the Veteran's lower extremities were again deemed normal. The Veteran was afforded a VA knee examination in March 2021. The examiner diagnosed the Veteran with degenerative joint disease of the bilateral knees. After reviewing the Veteran's entire claims file, the examiner opined that it was less likely than not that the Veteran's bilateral knee condition was less likely than not proximately due to or the result of his military service, to include his in-service duties as a truck driver. The examiner found no residual or chronic disability shown by the record during service or evidence following service. The examiner noted that the Veteran separated from the military approximately 53 years prior to the examination and had prior work experience as a truck driver, factory worker and construction for over three decades. The Board finds the March 2021 examiner's opinion to be highly probative. Significantly, there is no contrary opinion of record. Here, there is no competent and credible evidence of a nexus between the Veteran's current bilateral knee disorder and service. The only evidence of record in support of such a nexus is the Veteran's lay opinion that his current knee problems are due to service. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot diagnose a knee disorder because of the medically complex nature of such a diagnosis. See Jandreau, 492 F.3d at 1377, n. 4. The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between his knee complaints, initially noted many years after service, and service are of little probative value. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a left knee disorder and right knee disorder and that the claims must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for asthma and COPD, to include as due to exposure to contaminants at Camp Lejeune The Veteran contends he has the above listed conditions and that they are the result of his time in service, to include his exposure to water contaminants at Camp Lejeune. The record shows that the Veteran has been diagnosed with both asthma and COPD. As above, the Veteran's service treatment records are silent for any breathing problems. Medical examinations at induction in November 1965, in October 1967 and at separation in January 1968 found no respiratory issues. There is no indication that the Veteran was diagnosed with asthma or COPD during service or within one year of service. The Veteran's record is also negative for any objective evidence linking breathing problems to his time in service. While the Veteran's record shows he was exposed to contaminated water at Camp Lejeune the Veteran's record does not indicate he has been diagnosed with any of the conditions subject to presumptive service connection and his claimed conditions are not on the list of presumptive diseases. The Veteran's record was reviewed by an examiner in February 2021. The examiner noted that the Veteran served at Camp Lejeune from September 1967 to January 1968 The examiner noted that the Agency for Toxic Substances and Disease Registry and other scientific and medical literature does not show an association between the asthma or COPD and exposure to contaminated water at Camp Lejeune. The examiner explained that the conditions are multifactorial in origin and that the Veteran is positive for the highest risk factor for these conditions, smoking tobacco. Specifically, the examiner noted that the Veteran has a 75-pack year tobacco use history. Moreover, the examiner also noted, based on the Veteran's employment history and his review of the record, that the Veteran also had potential exposure to asbestos during his employment in the construction trades. The Board finds the February 2021 VA thorough examination report, overall, to be highly probative as to the etiology of the Veteran's respiratory conditions. The examination was supported by compelling rationales; review and citation of current medical literature; and thorough review of the Veteran's record and relevant history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is important to note that no etiological opinions or suggestions are contained in the record that relate the Veteran's throat conditions to service, including exposure to CLCW. Here, there is no competent evidence of a nexus between service and the Veteran's throat conditions. The only evidence of record in support of such a nexus is the Veteran's lay opinion that these conditions are due to service. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between this condition and service are of little probative value. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. The most probative medical evidence of record is against a finding that the Veteran's current respiratory conditions began during active service or are otherwise related to service, to include as due to exposure to CWCL. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for asthma and COPD, and that the claims must be denied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. In reaching this conclusion, 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 claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for hypertension and a heart disability, to include as due to exposure to water contaminants at Camp Lejeune The Veteran contends that he developed hypertension and a heart disability as a result of service at Camp Lejeune. The Veteran's service treatment records are silent for any complaints, treatment or diagnosis of hypertension or any cardiac disabilities. Medical examinations at induction in November 1965, in October 1967 and again at separation in January 1968 found the Veteran's cardiac health to be normal. He had normal blood pressure reading was 102/72 at induction, 118/80 in October 1967 and 118/68 at separation. At the outset, the Board notes that the Veteran has been diagnosed with a heart disability and hypertension. See February 2021 VA examination report. In February 2021, the RO obtained a VA medical opinion regarding the Veteran's allegations that his current heart disability and hypertension were etiologically related to his exposure to water contaminants at Camp Lejeune. The examiner noted that the Veteran has a long history of hypertension, hypercholesterolemia as well as tobacco abuse. The examiner noted that there was a reported history of a myocardial infarction in approximately 2005 but that there is limited information regarding the same in the record. Cardiac testing performed in April 2009 due to reported chest pains showed normal myocardial perfusion with a 66 percent ejection fraction. The Veteran has continued receiving treatment for his cardiovascular conditions After a review of the Veteran's file, however, the examiner opined that it was less likely than not that the Veteran's heart disability and hypertension were etiologically related to his exposure to contaminated water while stationed at Camp Lejeune. The examiner noted that the Agency for Toxic Substances and Disease Registry and other scientific and medical literature does not show an association between the Veteran's claimed cardiovascular condition and exposure to contaminated water at Camp Lejeune. Moreover, the examiner noted that the Veteran had major risk factors for both of these conditions, to include male gender, advanced age, obesity, likely sedentary lifestyle and, most critically, years of tobacco abuse. The Board finds that the February 2021 examiner's through opinion to be highly probative. Significantly, there is no competent medical opinion to the contrary. Hypertension and the Veteran's diagnosed heart disability are not one of the specifically enumerated disorders for which the regulations provide a presumption of in-service incurrence. See 38 C.F.R. § 3.309 (f). Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309 (f) do not apply to the current appeal and do not help this Veteran establish service connection for these disabilities. The Board acknowledges that there is no medical opinion of record on a direct service-connection theory of entitlement but finds that one is not warranted. In addition to a lack of evidence of heart disability or hypertension during service, the Board observes that post-service VA treatment records are silent for complaint, diagnosis, or treatment of hypertension and cardiac disabilities until decades after the Veteran's active service, and that none of the subsequent medical records indicate a relationship between the diagnosis and service. Although the Veteran has current diagnoses of a heart disability and hypertension, and these conditions cause the Veteran great discomfort, the preponderance of the evidence weighs against a finding of an in-service injury, event, or disease, or that the disability is causally related to a period of active service, or secondary to his exposure to contaminated water while he was stationed at Camp Lejeune. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38U.S.C. §5107 (b); 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the claims are denied. Entitlement to service-connection for carpal tunnel syndrome (CTS) of the right upper extremity and left upper extremity The Veteran has alleged that his current bilateral carpal tunnel syndrome of the upper extremities is etiologically related to service. More specifically he has attributed the condition to his exposure to contaminated water while stationed at Camp LeJeune. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of carpal tunnel of either upper extremity during service. Medical examinations at induction in November 1965, in October 1967 and again at separation in January 1968 found the Veteran's bilateral upper extremities to be normal. In light of the Veteran's contention that his CTS is etiologically related to his exposure to contaminated water while stationed at Camp Lejeune, a VA examiner reviewed the Veteran's file in February 2021. The examiner noted that the Veteran's file had scant data regarding this condition, but that an EMG test in approximately 2007 showed CTS. The examiner noted that there was no indication of CTS prior to or during military service and pointed to the Veteran's separation examination which was negative for any indications of CTS of either upper extremity. The examiner noted that at a December 2007 neurological examination the Veteran had reported numbness and an aching feeling in the hands for approximately six months. Records from December 2008 also reference a "one year history of bilateral weakness and cramps. The examiner explained that carpal tunnel syndrome can be due to obesity, diabetes mellitus, genetics, or repetitive activities. After review of the Veteran's claims file, the examiner opined that it was less likely than not that the Veteran's condition was etiologically related to exposure to contaminated water at Camp Lejeune. The Board finds the examiner's opinion to be highly probative. Significantly, there is no contrary opinion of record. The Board acknowledges that there is no medical opinion of record on a direct service-connection theory of entitlement but finds that one is not warranted. In addition to a lack of evidence of CTS symptoms during service, the Board observes that post-service VA treatment records are silent for complaint, diagnosis, or treatment of CTS until decades after the Veteran's last period of active service, and that none of the subsequent medical records indicate a relationship between the diagnosis and service. Although the Veteran has a current diagnosis of bilateral carpal tunnel syndrome, the preponderance of the evidence weighs against a finding of an in-service injury, event, or disease, or that the disability is causally related to a period of active service, or secondary to his exposure to contaminated water while he was stationed at Camp Lejeune. The VA has taken the Veteran's concerns seriously. Multiple examinations and medical opinions have been given to address these issues, each providing evidence against these claims. Regarding all his claims, the Board has considered if there is any indication of direct service connection and/or an indication of a problem or problems that the Veteran has had since service. There is none. The service and post-service records provide particularly negative evidence against all claims, indicating problems that began many decades after service or problems that were clearly caused by the Veteran's history of smoking. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38U.S.C. §5107 (b); 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the claims are denied. Entitlement to a TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. In reaching that determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently service connected for bilateral hearing loss, rated as 30 percent disabling from August 31, 2009 and for vertigo, rated as 10 percent disabling from August 31, 2009. The Veteran's combined disability rating is 40 percent from August 31, 2009. The question before the Board is whether the Veteran was unemployable by reason of his service-connected disability, taking into account his educational and occupational background. The Board finds that the greater weight of the probative evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected vertigo and bilateral hearing loss. The Veteran has not been found to be service connected for any other disabilities. Therefore, the Board finds the appellant does not meet the preliminary schedular rating requirements for a TDIU at any time during the pendency of the appeal. 38 C.F.R. § 4.16 (a). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board does not find that such referral is warranted. The rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected vertigo and bilateral hearing loss. This is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Further, as noted above, the Veteran clearly has a series of nonservice-connected problems. Accordingly, the Board finds that that the schedular rating criteria are adequate to rate the disabilities on appeal, and referral for consideration of an extraschedular evaluation is not warranted. Given the above, the Board finds that the claim for a TDIU is denied. 38 C.F.R. § 4.16. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.