Citation Nr: 21007138 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 20-06 629 DATE: February 8, 2021 ORDER Service connection for a neurobehavioral disability, to include as due to exposure to contaminated water at Camp LeJeune is denied. FINDINGS OF FACT 1. The Veteran had verified service at Camp LeJeune during the period of time known to be associated with contaminated water, between August 1, 1953 and December 31, 1987. 2. The Veteran does not have a currently diagnosed neurobehavioral disability. CONCLUSION OF LAW The criteria for service connection for a neurobehavioral disability, to include as due to exposure to contaminated water at Camp LeJeune have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the U.S. Marine Corps from February 1960 to March 1964, to include service at Camp LeJeune, North Carolina. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge within a January 2021 videoconference hearing. A copy of the hearing transcript has been associated with the record. Entitlement to service connection for a neurobehavioral disability, to include as due to exposure to contaminated water at Camp LeJeune Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2019). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2019). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The United States Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). VA has acknowledged that persons residing or working at Camp Lejeune from August 1953 to December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (Revised) (January 28, 2013) (rescinded due to its incorporation into the M21-1); VBA Manual M21-1, IV.ii.2.C.5.o. In this regard, in the early 1980s, it was discovered that two on-base water-supply systems at Camp Lejeune were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. These water systems served housing, administrative, and recreational facilities, as well as the base hospital. See VBA Training Letter 11-03 (Revised) (November 29, 2011); M21-1, IV.ii.2.C.5.o. The National Academy of Sciences’ National Research Council (NRC) published its Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009. This report included a review of studies addressing exposure to TCE and PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. The NRC analysis found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited/suggestive evidence of an association, including esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. During the pendency of this appeal, effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases associated with contaminants present in the water supply at Camp Lejeune from August 1, 1953, to December 31, 1987. See 82 Federal Register 4173 (January 13, 2017). This final rule establishes presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease. Specifically, the rulemaking amends 38 C.F.R. §§ 3.307 and 3.309. Id. Neurological disorders, however, are not among the listed disorders for which service connection may be presumed based on service at Camp Lejeune. Here, the Veteran, within a March 2014 lay statement, indicated that he was stationed at Camp LeJeune from 1960 to 1963, with an infantry in the weapons battalion. Military personnel records show the Veteran was stationed at Camp LeJeune from June 1960 to March 1963. Therefore, the Board finds that the Veteran had verified service at Camp LeJeune during the period of time known to be associated with contaminated water, between August 1, 1953 and December 31, 1987. Similarly, the Veteran is therefore conceded to have been exposed to contaminated water while stationed at Camp LeJeune. However, the Board finds that the Veteran does not have a currently diagnosed neurobehavioral disability. While a neurobehavioral disability is not subject to a presumption of service connection based on Camp Lejeune service, service connection can be shown on a direct basis, however, the Veteran must have the presence of such a neurobehavioral disability to proceed on a direct service connection basis. Shedden, 381 F.3d 1163. Here, the Veteran, within January 2021 videoconference hearing testimony, indicated that he received care within the VA healthcare system, where he received medication for anxiety. The Veteran described memory loss, sleep issues, anti-social behavior, motor skill issues. The Board, however, notes that the Veteran is already service-connected for posttraumatic stress disorder (PTSD) per an August 2020 VA examination, for which he endorsed symptoms of anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, impairment of short and long term memory, memory loss and suspiciousness. Therefore, the rule against pyramiding prevents the Board from considering the same psychological manifestations of service-connected PTSD with a claimed neurobehavioral disability. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) Further, while the Veteran testified to experiencing motor skill issues within January 2021 videoconference testimony, as well as having a neurobehavioral disability, VA treatment records do not show a currently diagnosed neurobehavioral disability to include any complaints about motor skill issues. For instance, February 2020, March 2020, May 2020, and August 2020 VA treatment notes show that upon mental status examination, the Veteran’s psychomotor activity was within normal limits. VA treatment records do not mention a neurobehavioral disability but do show psychiatric treatment. The only evidence of record supporting the Veteran’s contentions are his personal statements. His statements do not establish the required diagnosis of a current disability. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that the Veteran has not been afforded a VA examination as to whether a neurobehavioral disability was incurred in or caused by active service, to include as due to conceded exposure to contaminated water at Camp LeJeune. However, a remand for a VA examination is not warranted in this case. The record does not contain competent evidence of a nexus between a current disability and the Veteran’s service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no medical evidence or credible lay evidence of any current diagnosis, the Veteran’s lay statements as to the etiology of his current disability are insufficient to trigger the VA’s duty to assist by providing the Veteran with an examination. See 38 U.S.C. § 5103 (d) (2012); McLendon, 20 Vet. App. at 83; Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). (Continued on the next page)   Absent a current diagnosis, the Board finds that service connection is not warranted for a neurobehavioral disability, to include as due to exposure to contaminated water at Camp LeJeune. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.