Citation Nr: 21005487 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-39 054 DATE: February 1, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II (diabetes), to include as the result of exposure to contaminants in the water supply at Camp Lejeune, is denied. Entitlement to service connection for diabetic peripheral neuropathy, to include as the result of exposure to contaminants in the water supply at Camp Lejeune, is denied. Entitlement to service connection for fatty liver disease, to include as the result of exposure to contaminants in the water supply at Camp Lejeune, is denied. FINDINGS OF FACT 1. The Veteran’s diabetes was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include exposure to contaminants in the water of Camp Lejeune. 2. The Veteran’s diabetic peripheral neuropathy was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include exposure to contaminants in the water of Camp Lejeune. 3. The preponderance of the evidence is against finding that fatty liver disease began during active service or is otherwise related to an in-service injury or disease, to include exposure to contaminants in the water of Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetic peripheral neuropathy are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for fatty liver disease are not met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from 1979 to April 1982, including service at Camp Lejeune. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision. These matters were previously before the Board in November 2018 and December 2019. The matter of entitlement to service connection for fatty liver disease was denied by the Board in November 2018 and appealed to the United States Court of Appeals for Veterans Claims (Veterans Court) in June 2019. The Veteran initially requested a videoconference hearing regarding his claims when he filed his substantive appeal. However, he later withdrew his request in August 2016 correspondence. Service Connection Diabetes The Veteran contends that his diabetes is the result of his exposure to contaminants in the water supply of Camp Lejeune. In this regard, the Board notes that certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In the current appeal, the Veteran has been diagnosed to have diabetes mellitus, type II, as is evidenced by many of his treatment records including his July 2020 VA examination which records this diagnosis in approximately 2009. Diabetes mellitus, type II is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The medical evidence of record shows the Veteran was not diagnosed with diabetes until 2009, decades after his separation from service and decades outside of the applicable presumptive period. The Veteran does not argue that his diabetes manifested during service or within a year after the end of his period of service. Instead, the Veteran has argued that his diabetes is the result of his exposure to contaminants in the water supply of Camp Lejeune. The Veteran is known to have had service for more than 30 days at Camp Lejeune, and VA regulations provide that veterans who have served more than 30 days at Camp Lejeune are presumed exposed to those contaminants and provide that certain diseases are presumed to be related to such exposures. 38 U.S.C. § 1112; 38 U.S.C. §§ 3.307(a)(7), 3.309(f). However, diabetes mellitus, type II is not one of the diseases to which this presumption applies. 38 U.S.C. § 1112; 38 C.F.R. § 3.309(f). Service connection for diabetes may still be granted on a direct basis. However, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s diabetes and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994) 38 C.F.R. § 3.303. The June and July 2020 VA opinions both opined that the Veteran’s diabetes was not caused by his exposure to the known contaminants in the Camp Lejeune water supply, which is the only event alleged or suggested by the Veteran or the record to be etiologically associated with his diabetes. The rationales were that consulting the literature revealed no known association between those contaminants and diabetes. Also, the June 2020 examiner noted that, while the Veteran served at Camp Lejeune for 785 days (many more days than required to meet VA presumptions), subsequent studies of persons exposed similarly for longer periods of time (more than twice as long) to similar chemicals in environments such as dry cleaners suggested that individuals who served at Camp Lejeune had slightly lower mortality and disease rates than comparable individuals in the study. Finally, the June 2020 examiner pointed to the long distance in time of more than 25 years between when the Veteran was exposed and the onset of his disease as another factor making it less likely than not that his diabetes was the result of his exposure to contaminated water at Camp Lejeune. While the Veteran believes that his diabetes is related to an in-service injury, event, or disease, including his exposure to contaminants in the water supply of Camp Lejeune, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Diabetic peripheral neuropathy The Veteran contends that his diabetes is the result of his exposure to contaminants in the water supply of Camp Lejeune. In this regard, the Board reiterates that certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of diabetic peripheral neuropathy as evidenced by many of his treatment records and the July 2020 VA examination which record such a diagnosis in 2017. To the extent that the Veteran’s peripheral neuropathy is an organic disease of the nervous system, it is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The medical evidence of record shows the Veteran was not diagnosed with diabetic peripheral neuropathy until 2017, decades after his separation from service and decades outside of the applicable presumptive period. The Veteran does not argue that his diabetic peripheral neuropathy manifested during service or within a year after the end of his period of service. Instead, the Veteran has argued that his diabetes, and consequently his diabetic peripheral neuropathy, is the result of his exposure to contaminants in the water supply of Camp Lejeune. The Veteran is known to have had service for more than 30 days at Camp Lejeune, and VA regulations provide that Veterans who have served more than 30 days at Camp Lejeune are presumed exposed to those contaminants and provide that certain diseases are presumed to be related to such exposures. 38 U.S.C. § 1112; 38 U.S.C. §§ 3.307(a)(7), 3.309(f). However, neither diabetes mellitus, type II nor diabetic peripheral neuropathy are one of the diseases to which this presumption applies. 38 U.S.C. § 1112; 38 C.F.R. § 3.309(f). Service connection for diabetic peripheral neuropathy may still be granted on a direct basis. However, the preponderance of the evidence is against finding that a medical nexus exists between this condition and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994) 38 C.F.R. § 3.303. The July 2020 VA examination makes clear that the Veteran’s diabetic peripheral neuropathy is a complication of his diabetes, and his diabetes is not related to his exposure to contaminants in the water supply of Camp Lejeune for the reasons articulated in the previous section. While the Veteran believes that his diabetes and its attendant diabetic neuropathy is related to an in-service injury, event, or disease, including his exposure to contaminants in the water supply of Camp Lejeune, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Fatty liver disease The Veteran contends that his fatty liver disease is the result of his exposure to contaminated water at Camp Lejeune. The Board reiterates that the Veteran had service for more than 30 days at Camp Lejeune, and VA regulations provide that veterans who have served more than 30 days at Camp Lejeune are presumed exposed to those contaminants and provide that certain diseases are presumed to be related to such exposures. 38 U.S.C. § 1112; 38 U.S.C. §§ 3.307(a)(7), 3.309(f). However, fatty liver disease is not one of the diseases to which this presumption applies. 38 U.S.C. § 1112; 38 C.F.R. § 3.309(f). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this regard, the Board finds that, while the Veteran has a current diagnosis of fatty liver disease and while evidence shows that he served at Camp Lejeune for more than 2 years where he was exposed to contaminants in the water supply, the preponderance of the evidence weighs against finding that his diagnosis of fatty liver disease began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s medical records demonstrate that the Veteran was not diagnosed with fatty liver disease until June 2011, decades after the end of his service. The Veteran does not indicate that this condition, or its symptoms, began during service. Instead, the Veteran asserts that his later diagnosed fatty liver disease was the result of his exposure to contaminated water at Camp Lejeune. The June 2016 VA examiner opined that the Veteran’s fatty liver disease is not at least as likely as not related to an in-service injury, event, or disease, including exposure to the contaminants in the water supply of Camp Lejeune. The rationale was that the Veteran’s obesity, diabetes, hyperlipidemia, and hypertension are much more likely the etiological source of the Veteran’s fatty liver disease. The examiner explained that fatty liver disease is clearly recognized as a primary direct consequence of obesity and alcohol consumption. The examiner reviewed the Veteran’s history of being overweight (and obese) prior to his diagnosis with fatty liver disease—and several articles that demonstrated that there was either no known correlation between chemicals of the type that were contaminating the waters of Camp Lejeune and fatty liver disease or only a speculative connection between exposure to those chemicals in the manner (or a similar manner) to the way individuals stationed at Camp Lejeune were exposed and subsequent hepatic steatosis. The examiner also reviewed a single study, now more than 20 years old, that found an association between fatty liver disease and moderately intense workplace exposure to organic solvents. However, the individuals in that case contracted the condition within 15 years of their exposure, rather than the nearly 30 years that separated the Veteran’s exposure and diagnosis. Consequently, because of (1) the common association between fatty liver disease and obesity, (2) the Veteran’s history of obesity and being overweight prior to his diagnosis, (3) the majority of the scientific literature showing either no connection or only a speculative connection between exposures like the Veteran’s and the subsequent development of fatty liver disease, and (4) the temporal remoteness of the Veteran’s exposure from his diagnosis with fatty liver disease, the examiner concluded that the Veteran’s fatty liver disease was more likely related to his obesity and related conditions (diabetes, hyperlipidemia, and hypertension) than his exposure to contaminants in the water supply of Camp Lejeune. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Significantly, neither the Veteran, nor the record has suggested an alternative theory as to how the Veteran’s fatty liver disease was connected to his service. The Board has considered the Veteran’s belief that his fatty liver disease is related to his exposure to contaminants in the water supply of Camp Lejeune. However, he is, unfortunately, not competent to provide a nexus opinion regarding this issue. Such a matter is medically complex, as it requires knowledge of pathology. Thus, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the June 2016 VA examination, which is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, this matter was remanded by the Veterans Court for the Board to readjudicate this matter once the question of entitlement to service connection for diabetes had been settled, so that, if the question of service connection for diabetes was resolved in the Veteran’s favor, the Board could consider entitlement to service connection for fatty liver disease on a secondary basis. As discussed in the (CONTINUED ON NEXT PAGE) preceding sections, entitlement to service connection for diabetes was denied. Consequently, the Board need not consider the question of entitlement to service connection for fatty liver disease, as secondary to diabetes any further. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.