Citation Nr: 21013641 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-34 941A DATE: March 10, 2021 ORDER Service connection for a lung disorder, to include a collapsed lung/pneumothorax, is denied. Service connection for viral infection of the lungs is denied. Service connection for bronchitis is denied. REMANDED Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis for a lung disorder, to include a collapsed lung/pneumothorax, that is etiologically related to his military service, to include any exposure to contaminated water at Camp Lejeune. 2. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis for a viral infection of the lungs that is etiologically related to his military service, to include any exposure to contaminated water at Camp Lejeune. 3. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis for bronchitis that is etiologically related to his military service, to include any exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disorder, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a viral infection of the lungs, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for bronchitis, to include as due to exposure to contaminants at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 1116, 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 August 1980 to December 1980. In October 2018 and April 2020, the Board remanded the current claims for additional development. 1. Entitlement to service connection for lung disorders, to include a collapsed lung/pneumothorax and/or a viral infection; and bronchitis. 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. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (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). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants in the water supply at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. Persons residing or working at Camp Lejeune from August 1, 1953, to December 31, 1987, were potentially exposed to drinking water contaminated with volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride that were in the on-base water-supply systems. 38 C.F.R. § 3.307(a)(7). If a veteran was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), the following diseases shall be service connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): kidney cancer; liver cancer; non-Hodgkin's lymphoma; adult leukemia; multiple myeloma; Parkinson's disease; aplastic anemia and other myelodysplastic syndromes; and bladder cancer. 38 C.F.R. § 3.309(f). With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that he has lung disorders, to include a collapsed lung/ pneumothorax and viral infection of the lungs; and bronchitis that are related to his service, to include exposure to contaminated water at Camp Lejeune. As indicated above, the initial question for the Board is whether a current disability exists. After a thorough review of the evidence of record, the Board concludes that the Veteran does not have current diagnoses for a lung disorder (to include a collapsed lung/pneumothorax and/or a viral infection) or bronchitis and current diagnoses for these disorders have not been present at any time during the pendency of the claim or recent to the filing of the claim. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky, 26 Vet. App. at 294; 38 C.F.R. § 3.303(a), (d). In that regard, the Board emphasizes that there is simply no evidence for current disabilities to support service connection for lung disorders (to include a collapsed lung/pneumothorax and/or a viral infection) and/or bronchitis. The Veteran’s service treatment records are silent for any complaints, findings, treatment, or diagnoses related to a lung disorder (to include a collapsed lung or viral lung infection) or bronchitis. The Board acknowledges that the Veteran reported ear, nose, and throat trouble on his September 1981 report of medical history. However, this was in relation to a tracheotomy he had when he was 16 years old. Notably, during his October 1979 enlistment and December 1980 separation examination his lungs, sinuses, mouth, throat, and nose were evaluated as normal. Postservice, the Veteran appears to have had a 70 to 80 percent pneumothorax with mediastinal shift in January 1996 (over 16 years after separation from service). Less than one month later, however, the Veteran’s chest X-rays showed no active disease. See February 1996 Cook County Hospital records. In September 2020, the Veteran was evaluated for VA compensation purposes and the VA examiner found that there was no currently diagnosed respiratory disorder, to include bronchitis, collapsed lung, or viral infection. The examiner explained that the Veteran’s pulse oximeter was 98 percent on room air and that the Veteran was not currently being treated for any lung condition. The examiner acknowledged the Veteran had reported being treated with a nebulizer while at the Arizona VA Medical Center. However, the examiner found that there was no documentation of this in the Veteran’s VA treatment records. The Board finds this VA examination to be highly probative as it is based on examination of the Veteran and is supported by the record. To the extent that a current disability may be found to exist, however, the Board notes that there is also no competent or credible evidence of a nexus to support service connection for any of these disorders. In fact, the evidence does not show, and the Veteran has not contended that he has had lung disorders (to include collapsed lung/pneumothorax and viral infection of the lungs) or bronchitis, or since service. In September 2020, a VA examiner opined that a lung disorder (characterized as pneumothorax), bronchitis, and a viral infection were less likely as not caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune. The examiner explained that studies did not suggest a relationship between exposure to solvents and bronchitis, viral infection, or pneumothorax. The examiner noted that a single meta-analysis of epidemiologic studies showed increase risk of lung cancer at high exposure to TCE but the data was not statistically significant. The examiner further noted that the Veteran was stationed at Camp Lejeune for 53 days and the levels of solvents were well below those identified in the studies. The examiner also noted that the Veteran had several risk factors for pneumothorax to include male gender, history of smoking, underlying bullous pathology of the lung, concurrent infection at the time of collapse and there was a more than 15-year latency in diagnosis. There are no opinions to the contrary. Accordingly, there is no competent or credible evidence that establishes a link between the Veteran’s claimed disorders and his service, to include exposure to contaminated water at Camp Lejeune. The Board acknowledges the Veteran’s statements that suggest that all the claimed disorders were related to his exposure to contaminated water at Camp Lejeune. See June 2013 NOD and September 2018 Appellate Brief. Significantly, however, he is not competent to provide a nexus opinion in this case. Rather, the question as to whether a nexus exists is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board finds that the Veteran’s contentions above are assigned little to no probative value and are outweighed by the VA medical opinions above. In light of the foregoing evidence, it is not shown at any time during the pendency of this appeal that the Veteran has had a current diagnosis for lung disorders (to include a collapsed lung/pneumothorax and/or a viral infection) and/or bronchitis that is etiologically related to his active duty service, to include exposure to contaminated water at Camp Lejeune. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert, 1 Vet. App. at 49. Accordingly, the Veteran’s claims for service connection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral eye disorder is remanded. In the April 2020 remand, the Board determined that the Veteran was not afforded a VA examination for his bilateral eye disorder as requested in the previous October 2018 Board remand. Therefore, the Board requested that a VA examination be accomplished. Since then, however, the Agency of Original Jurisdiction (AOJ) has not provided a VA examination to assess the Veteran’s bilateral eye disorder. Accordingly, another remand is warranted for a VA examination consistent with the directives herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for an acquired psychiatric disorder. In the April 2020 remand, the Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder and requested that the VA examiner identify whether the Veteran had a psychiatric disability, to include psychosis, opioid dependence, problems with interpersonal issues, and the need to rule out an anti-social personality disorder. The September 2020 VA examiner determined that the Veteran did not have a current diagnosis for a psychosis, but did not address opioid dependence, problems with interpersonal issues, or the need to rule out an anti-social personality disorder. Note, these disorders were specifically documented in the Veteran’s VA treatment records. See November 2013 and May 2014 VA Treatment records. Accordingly, another remand is warranted for a VA medical opinion consistent with the directives herein. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following actions: 1. Obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s bilateral eye disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner should provide a diagnosis for all current eye disorders, and for each diagnosis opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed eye disorder was caused by or related to active military service, to include as due to the Veteran’s conceded exposure to water-based contaminants at Camp Lejeune. In rendering the above opinion, the examiner must consider and discuss the April 2019 VA negative nexus opinion regarding the Veteran’s cataracts. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. a) The examiner should provide a diagnosis for all current acquired psychiatric disorders. The examiner must specifically consider and discuss whether the Veteran has a current disability for adult antisocial behavior, opioid dependence, and/or problems with interpersonal issues. See November 2013 and May 2014 VA Treatment records. b) For each diagnosis opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed acquired psychiatric disorder was caused by or related to active military service, to include as due to the Veteran’s conceded exposure to water-based contaminants at Camp Lejeune. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the examiner determines that physical examination of the Veteran is necessary in order to provide the requested opinion, such should be scheduled. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.