Citation Nr: 21006351 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-03 710 DATE: February 3, 2021 ORDER Service connection for a chronic respiratory disorder, to include chronic obstructive pulmonary disease (COPD), bronchitis, pneumonia, respiratory infections, sinusitis, rhinitis, and deviated septum, is denied. REMANDED Service connection for an acquired psychiatric disorder, to include passive aggressive personality with anxiety features, bipolar disorder, anxiety disorder, and major depressive disorder, is remanded. FINDING OF FACT 1. The Veteran served on active duty from April 1972 to April 1976, including duty at Camp Lejeune from April 1974 to April 1976. 2. A chronic respiratory disorder, to include COPD, bronchitis, pneumonia, respiratory infections, sinusitis, rhinitis, and deviated septum was not shown in service or for over 10 years thereafter, is not etiologically or causally related to service and cannot be presumed to be associated with the drinking water at Camp Lejeune. CONCLUSION OF LAW A chronic respiratory disorder, to include COPD, bronchitis, pneumonia, respiratory infections, sinusitis, rhinitis, and deviated septum was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1972 to April 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office. In June 2019, the Board denied the claims. In April 2020, the United States Court of Appeals for Veterans Claims granted a joint motion for partial remand, returning the matters to the Board. Service connection for a chronic respiratory disorder is denied. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test—(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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in §3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminated water at Camp Lejeune if a veteran, former reservist, or member of the National Guard shows (1) that he or she served at Camp Lejeune for no less than 30 consecutive or nonconsecutive days between August 1, 1953 and 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 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). This presumption may also be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing provisions regarding presumptive service connection for exposure to contaminated water, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran claims that service connection is warranted for a respiratory disorder because it began during service and has been ongoing ever since. He indicated that his respiratory problems are well-documented in his service treatment records (STR) and has also alleged that it is due to contaminated drinking water at Camp Lejeune. (In a January 2012 written statement, the Veteran specifically indicated that he is not seeking service connection for sinusitis, rhinitis or deviated septum, but he is seeking service connection for other respiratory disorders such as bronchitis and pneumonitis.) As an initial matter, the claimed respiratory disorders (bronchitis, pneumonitis/pneumonia, COPD, etc.), are not disorders listed under § 3.309 so service connection on a presumptive basis is not warranted. In addition, they are not diseases listed as associated with exposure to the contaminated water at Camp Lejeune. Therefore, although the Veteran’s primary contention is that his respiratory disorder is due to the contaminated water at Camp Lejeune, this is not among the types of disorders that can be granted on a presumptive basis. Although exposure to contaminated water is conceded, presumptive service connection for a respiratory disorder is not warranted on this basis; however, the Board will consider service connection on a direct service connection basis. Turning to direct service connection, the January 2010 VA examination report included diagnoses of COPD, recurrent URI, chronic sinusitis, chronic rhinitis, and deviated septum. Further, August 2012 prison records included diagnoses of COPD and pneumonia. As such, the requirement of a current disorder has been met. As to in-service incurrence, the STRs document that in June 1972 the Veteran was treated and diagnosed with acute respiratory disease. In August 1972, he was treated for and diagnosed with continuing bronchitis. An October 1974 STR showed that examination revealed upper lobe infiltration. He was given Sudafed and another medication. In October 1974, he was diagnosed with left lower lobe infiltrate pneumonitis. The March 1976 discharge examination report was negative for respiratory problems. At discharge there was no evidence of any chronic respiratory or lung disorder. The Veteran has alleged continuous symptoms ever since service. For example, in December 2008, the Veteran stated “I didn’t use inhalers prior to my service in the Marine Corps. I have used inhalers daily during my service and since. ... My breathing has suffered ever since and grown worse each year since.” The credibility of a witness can be impeached by a showing of inconsistency. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The medical evidence does not establish ongoing symptoms of any respiratory from service to the present. In this regard, while there were respiratory complaints and findings in service, no chronic disability was diagnosed. Further, at service discharge, respiratory examination was normal, and after service, there is no evidence of any chronic respiratory problems until the 1990s, which is over 10 years after service. In addition, a very extensive January 2010 VA medical opinion concluded it was less likely than not that the Veteran’s sinusitis, rhinitis, deviated septum, COPD and chronic upper respiratory infections were related to military service. The examiner noted that STRs documented pneumonia in 1972 and left lower lung infiltrate in 1974. Following these episodes, however, there is no other documentation of a chest or lung condition in the STRs or until the 1990s. The Veteran’s sinus complaints are documented following nose fracture and surgery in 1987, with chronic sinus symptoms and upper respiratory infections in the 1990s and then emphysema, which was diagnosed in 2002. The examiner opined that there are other risk factors and chest X-rays did not indicate pneumonia. In this regard, the examiner stated that literature documents that smoking is the number one risk factor for COPD. Marijuana use is also a risk factor. Moreover, smoking is known to increase sinus symptoms. Literature also supports postnasal drip due to allergies, rhinitis, and sinusitis as a common cause of a chronic cough. The examiner concluded that, due to lack of chronicity of symptoms from 1974 to the 1990s, the documented nasal injury from 1987 and the Veteran’s smoking history (May 2002 VA treatment records noted that he smoked a pack of cigarettes a day and had a 40 pack-year history), the current respiratory disorders were not related to military service. Regarding service connection for a respiratory disorder caused by direct exposure to the contaminated water, the Veteran’s exposure is conceded because he was stationed at Camp Lejeune during the relevant time period. Therefore, the threshold question is whether there is a direct medical link between contaminated water exposure and his current respiratory disorder because his respiratory disorder cannot be presumed to have an association with the contaminated water. There is no medical evidence indicating that the Veteran’s respiratory disorders were caused by exposure to contaminated water at Camp Lejeune. The only evidence indicating such is the Veteran’s own statements. The Board has considered the Veteran’s lay statements that his respiratory disorder(s) was caused by service, to include his exposure to the water at Camp Lejeune. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He, however, is not competent to offer an opinion as to the cause of his current respiratory disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the January 2010 VA medical opinion and clinical findings than to the Veteran's statements. As such, the medical records are more probative than the Veteran’s lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit-of-the-doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Service connection for an acquired psychiatric disorder is remanded. Presumption of Soundness A veteran who is not noted to have a preexisting condition upon entrance into service is presumed to have entered service in sound condition. 38 U.S.C. § 1111. If the presumption of soundness applies, an injury or disease first noted in service is presumed to have occurred in service unless clear and unmistakable evidence demonstrates that it existed before acceptance and enrollment and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Vanerson v. West, 12 Vet. App. 254, 258 (1999) (explaining that clear and unmistakable evidence means evidence that “cannot be misinterpreted and misunderstood”). If, on the other hand, a veteran is noted to have had a preexisting condition upon entrance into service, he or she must show that the condition was aggravated by service. Wagner, 370 F.3d at 1096. Service aggravation is shown by an increase in disability during service that is not determined to be the result of the natural progress of the condition. The Veteran has “a current diagnosis of major depressive disorder with psychotic features, and anxiety disorder not otherwise specified.” A mental health disorder was not diagnosed at the time of the enlistment examination, but the Veteran was subsequently treated for mental health complaints (anxiety and insomnia) during active duty. A VA examination was conducted in January 1977. A diagnosis of anxiety features in a passive dependent personality related to early childhood modeling was made. In the body of the examination report, the examiner found that the Veteran's intolerance for structure and discipline in the military “in part accounts for his anxiety symptoms.” The clinician did not provide a rationale for why it was determined that the symptoms documented in-service were due to pre-service events particularly considering the statement that some symptoms were due to military service. No opinion was provided as to whether the Veteran had a preexisting mental disorder which was aggravated by active duty. Service connection is not allowed for a congenital defect, such as a personality disorder, or for aggravation of a congenital defect as congenital defects are not considered to be injuries or diseases for VA service connection purposes. 38 C.F.R. § 3.303 (c) (2016). However, service connection is possible if a disease or injury is superimposed over the congenital or developmental defect during service and there is a resultant disability. Jensen v. Brown, 4 Vet. App. 304 (1993); VAOPGCPREC 82-90 (1990), 56 Fed. Reg. 45,711 (1990). An opinion is required to determine if the personality disorder diagnosed in January 1977 has a disease or injury superimposed over it during service with resultant disability. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of a current disability, an in-service incurrence or aggravation of an injury or disease, and a nexus between the claimed in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A VA medical opinion addressing the Veteran’s allegations from throughout the appeal period that he had experienced nervousness and an out-of-control temper during service is warranted. Duty to Assist VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to decide on a claim. 38 U.S.C. § 5103A. Those who adjudicate claims of incarcerated veterans must be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans. Bolton v. Brown, 8 Vet. App. 185, 187 (1995). Appellant is presently incarcerated. Since VA last attempted to contact the Veteran to arrange VA examination between September 2018 to March 2019, the Veteran has changed his address. In December 2019, VA received notification from the Veteran of this new address. The RO should again make attempts to schedule VA examination, document these attempts in the claims file, and include the Veteran’s state ID number as part of his mailing address on any written VA communications to the Veteran. The matter is REMANDED for the following actions: 1. Obtain updated VA and/or private treatment records.  If any identified records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to determine the etiology of any mental disorder present during the appeal period. If the Veteran is unavailable for an in-person examination, then the RO must obtain a medical opinion based upon a review of the Veteran’s treatment records. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Is any acquired psychiatric disorder present during the appeal period as likely as not incurred in or aggravated by active duty? (b.) Is passive aggressive personality disorder with anxiety features at least as likely as not proximately due to lumbosacral spine degenerative disc disease with paravertebral muscle spasm? (c.) Is passive aggressive personality disorder with anxiety features at least as likely as not aggravated, i.e., worsened beyond its natural progression, by lumbosacral spine degenerative disc disease with paravertebral muscle spasm? (d.) Is passive aggressive personality disorder with anxiety features at least as likely as not related to contaminants in the water during service at Camp Lejeune? (e.) Did passive aggressive personality disorder with anxiety features clearly and unmistakably (undebatable) preexist the Veteran’s service? (f.) If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? (g.) Did the Veteran’s passive aggressive personality disorder with anxiety, if it existed prior to service, at least as likely as not increase in severity during service? (h.) If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner is advised that a negative opinion cannot be based solely on the fact that the passive aggressive personality disorder with anxiety features is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including due to trauma during service. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.