Citation Nr: 21009367 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-16 672 DATE: February 22, 2021 ORDER Entitlement to service connection for Alzheimer’s disease, including as due to exposure to contaminated water at Camp Lejeune, North Carolina is denied. The petition to reopen the claim of entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure is granted. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure is granted. FINDINGS OF FACT 1. The Veteran’s Alzheimer’s disease is not related to any event in service, including exposure to contaminated water at Camp Lejeune. 2. The Veteran’s claim to reopen a claim of entitlement to service connection for diabetes mellitus was denied by a March 2014 RO determination. The Veteran was notified of the decision and his appellate rights in August 2014; he did not file a notice of disagreement nor submit new and material evidence within the following one year. 3. Evidence submitted since the March 2014 RO denial pertaining to the issue of entitlement to service connection for diabetes mellitus relates to an unestablished fact necessary to substantiate the claim. 4. The most probative evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents in service; therefore, his diabetes mellitus type II is presumed to be related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Alzheimer’s disease, including as due to exposure to contaminated water at Camp Lejeune, North Carolina, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for reopening the claim of entitlement to service connection for diabetes mellitus, type II to include as secondary to herbicide exposure have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. 3. The criteria for service connection for diabetes mellitus, type II have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 to April 1965. He served honorably in the United States Marine Corps, including at least thirty days at Camp Lejeune, North Carolina. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). An RO hearing was held in February 2016, and a transcript of the hearing is in the record. The Veteran requested a Board hearing. However, he did not appear at the scheduled hearing or provide a statement of good cause for missing the hearing. Accordingly, the hearing request is deemed withdrawn. The Veteran’s representative has submitted an informal hearing presentation. VA treatment records were uploaded to the file after the statement of the case was issued and prior to certification and transfer to the Board. However, this evidence is essentially duplicative of evidence already considered by the RO with respect to the claims decided, so remand is not warranted. 38 C.F.R. § 19.37(a). Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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). Service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. Service connection for certain chronic diseases, including diabetes mellitus, will be presumed if they manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus to service (for diseases listed in 38 C.F.R. § 3.309 (a)) may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for Alzheimer’s disease including as due to exposure to contaminated water at Camp Lejeune, North Carolina The Veteran requested service connection for Alzheimer’s disease as related to his exposure to contaminated water at Camp Lejeune. The Veteran has not alleged, and the evidence does not suggest, that the Veteran’s Alzheimer’s was incurred in service or is otherwise related to service. The medical evidence is clear that Alzheimer’s was first manifested and diagnosed many years after service. See 2017 VA examination report. A Veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a Veteran served on Camp Lejeune during the time frame specified, the diseases of kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia, and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f). The diseases listed in § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). The Veteran’s personnel records establish that he was assigned to Camp Lejeune for more than 30 days during the pertinent period. Thus, he is presumed to have been exposed to contaminated water at Camp Lejeune. However, because his claimed disability Alzheimer’s disease is not among the eight listed conditions in § 3.309(f), shown above, presumptive service connection cannot be granted for the claimed disability in this case. The Veteran may nevertheless establish entitlement to service connection by presenting evidence to establish that exposure to contaminants at Camp Lejeune caused the Veteran’s Alzheimer’s. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran has the current disability of Alzheimer’s disease. The diagnosis of Alzheimer’s disease was confirmed in the March 2017 and November 2017 VA examinations. However, a nexus between the Veteran’s military service and Alzheimer’s disease has not been established. While the Veteran believes that his Alzheimer’s disease is related to service; as a lay person, he is not shown to have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of his Alzheimer’s, falls outside the realm of common knowledge of a lay person. Id. Accordingly, the Veteran's opinion as to the etiology of his Alzheimer’s disease is not competent medical evidence. In March 2015, an APRN examined the Veteran and stated that the Veteran’ has Alzheimer’s “which may be related to exposure while [at Camp Lejeune] in 1962.” This opinion has little to no probative value because it provides no rationale and is stated in speculative terms. The March 2017 VA examiner opined that it is less likely than not that the examinee’s difficulties with Alzheimer’s disease is related to his exposure to solvents while stationed at Camp LeJeune. The examiner stated that the research literature does not point to a significant link between consumption of solvents and the onset of Alzheimer’s disease despite the presence of a few studies that have suggested a potential link. The Veteran’s symptoms began in earnest around 2008 with some symptoms present prior to that, potentially as early as the mid-90s. The VA examiner also stated that observable onset of symptoms often occurs in the sixth decade with approximately 10 percent of people in their sixth decade having Alzheimer’s disease. The November 2017 VA clinician also opined the Veteran’s Alzheimer’s disease is less likely than not a result of the Veteran’s past exposure to Camp Lejeune contaminated water. The VA clinician took into account the duration of exposure, the latency between exposure and diagnosis, his age at diagnosis and other historical factors when making this opinion. The VA clinician stated the medical literature is silent with regard to the possibility of central nervous system damage from low-level, environmental VOC exposure such as was likely present at Camp Lejeune during the pertinent period. The March 2015 opinion is not probative as it was speculative and not supported by rationale. The March 2017 and November 2017 opinions are highly probative and supported by adequate rationale. In summary, the weight of the competent probative evidence of record is against finding that there is a causal link between the Veteran's Alzheimer’s disease and his military service, even taking into account that the Veteran was exposed to contaminated water at Camp Lejeune. In addition, there is no indication in the record that Alzheimer’s otherwise is related to service. Therefore, VA’s duty to assist does not require further examination or medical opinion. Therefore, service connection for Alzheimer’s disease cannot be granted. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II to include as secondary to herbicide exposure The Veteran asserts that his diabetes is related to Agent Orange exposure in Vietnam. The Veteran reported he flew in and out of Vietnam and while on the ground in Vietnam he would drive a Jeep around the Da Nang Air Base. He contends proof of his time in Vietnam and exposure to Agent Orange are clearly articulated through his service record and detailed personal experience. His service personnel records reflect that he received hazardous pay in November and December 1964. If a Veteran served in the Republic of Vietnam during the Vietnam Era, he or she is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). VA currently recognizes type II diabetes mellitus as presumptively associated with exposure to herbicides. 38 C.F.R. § 3.309(e). Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). An August 2010 rating decision denied entitlement to service connection for diabetes mellitus, noting that the Veteran reported he flew into Danang, Vietnam. A Personnel Information Exchange System request indicated there was no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam. The Board acknowledges this response neither supports nor weighs against the claim. The Veteran’s service treatment records were also noted to be considered at that time. Following the Veteran’s November 2010 claim, a November 2010 rating decision found new and material evidence had not been submitted because the Veteran’s submission of a document from GlobalSecurity.org indicating Marine Aerial Refueler-Transport Squadron-152 (VMGR-152) did not show that the Veteran served in Vietnam. That document indicated that the bulk of the VMGR-152’s mission was “directly in support of action in Southeast Asia.” Records at that time also included service personnel records reflecting that the Veteran received hazardous pay in November and December 1964 with what appears to be a post-it note attached (not part of the original document) that says “Vietnam flights.” In a March 2014 rating decision, the AOJ denied a claim to reopen a claim for service connection for diabetes as the evidence submitted was not new and material. At that time the RO included the Veteran’s service treatment records and service medical records in the list of evidence, some of which were date stamped as received in 2013. While there is other evidence, including the date of receipt in VA’s electronic system, Veterans Benefits Management System, and a later rating decision suggesting some or all of these records were not received until April 2015, that is not accurate. The record is clear that the Veteran’s service medical and personnel records were of record at the time of the most recent prior final denial in March 2014, and that the service treatment records were of record at the time of the original claim and certain personnel records were associated with the record shortly thereafter. Service personnel records reflect that the Veteran served with the VMGR-152 from March 1964 to March 1965 and his primary duty was an A/CElectTech. Evidence also included VA treatment records reflecting a diagnosis of diabetes mellitus. Special requests to attempt to confirm Vietnam service were made to the Marine Corps Archives and Special Collections and the National Archives and Records Administration. However, neither location was able to provide records to support the Veteran’s claim that he flew back and forth from Japan to Vietnam. Following the March 2014 decision, no appeal was filed, and no new and material evidence was received within one year of the August 2014 notice of the March 2014 decision. Accordingly, the March 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Following the March 2014 rating decision, much of the evidence is duplicative of evidence that was before previous adjudicators, including evidence of the receipt of hazardous pay and statements from the Veteran about flying to Vietnam while serving in Japan. As this evidence was duplicative of evidence provided prior to the March 2014 rating decision, it cannot be new. However, new evidence included the Veteran’s testimony before RO personnel in February 2016 and a book U.S Marines in Vietnam The Landing and The Buildup, that indicates that in April 1964 the GV-is of VMGR-152 began landing in Vietnam and unloading their cargos. In addition, in June 1964, it was noted that “transports from VMGR-152 began landing at Da Nang with the Marines of a new UH-34D squadron. Also that month another unit “began departing for Okinawa on board refueler-transport aircraft from VMGR-152.” With respect to the issue of diabetes, the Board finds the new evidence does relate to an unestablished fact necessary to substantiate the claim, service in Vietnam. The evidence in the record at the time of the prior final decision showed the Veteran received hazard pay in November and December 1964 while stationed in Japan. Therefore, this evidence was already considered. However, excerpts from U.S Marines in Vietnam The Landing and The Buildup indicate that the planes from the Veteran’s squadron went to Vietnam at times in 1964 and 1965. As new and material evidence has been presented for the issue of diabetes, the petition to reopen the claim is granted. 3. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure The Veteran contends that his diabetes mellitus, type II disability is related to military service. Specifically, he asserts that his diabetes mellitus, type II is due to Agent Orange exposure that occurred as a result of flights to Vietnam while serving in Japan. The record shows that the Veteran is diagnosed with diabetes mellitus, type II. Thus, the Veteran has met his initial burden of proving that current disability exists. Shedden v. Principi, 381 F.3d at 1163; 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303; Also see February 2017 VA examination. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that he was at least as likely as not exposed to an herbicide agent. The Board finds that the Veteran is competent to make statements as to his military service and history. Further, excerpts from U.S Marines in Vietnam The Landing and The Buildup, published by the U.S. Marine Corps History and Museums Division, corroborate his statements that his squadron flew back and forth to Vietnam.   Accordingly, the evidence is at least in equipoise that the Veteran was exposed to herbicide agents, service connection for diabetes mellitus, type II is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sowden, 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.