Citation Nr: 21013950 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-39 852A DATE: March 11, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc disease (neck disability) is granted. Entitlement to service connection for atherosclerosis is granted. Entitlement to service connection for anemia due to toxic water exposure in Camp Lejeune is granted. REMANDED Entitlement to service connection for benign prostate hyperplasia (BPH) is remanded. FINDINGS OF FACT 1. The evidence of record is at least evenly balanced as to whether the Veteran’s neck disability is related to an in-service injury. 2. The evidence is at least evenly balanced as to whether the Veteran’s atherosclerosis is related to service. 3. The evidence is at least evenly balanced as to whether the Veteran’s anemia is related to exposure to contaminated water in Camp Lejeune. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for atherosclerosis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for anemia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to October 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, among one other thing, denied service connection for anemia, atherosclerosis, cervical spine degenerative disc disease, and prostate condition. The Veteran filed his notice of disagreement in May 2017, and in August 2017 was issued a statement of the case and perfected his appeal to the Board. In November 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene, perchloroethylene, benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307 (a)(7). This presumption may be rebutted by affirmative evidence to the contrary. The eight specified diseases are: kidney cancer; liver cancer; Non-Hodgkin’s lymphoma; adult leukemia; multiple myeloma; Parkinson’s disease; aplastic anemia and other myelodysplastic syndromes; and, bladder cancer. See 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). 1. Neck Disability The Veteran testified that he injured his neck while skiing during service. He stated that since the accident, his neck has hurt “on and off”, and that he takes medicine for his back that also helps his neck pain. March 2001 service treatment records reflect the Veteran was treated for injuries following blunt force trauma while skiing. The Veteran stated in his May 2017 notice of disagreement that his neck pain was caused by the accident in service that caused his back disability. May 2013 post-service treatment records indicate that the Veteran was diagnosed with cervical spine degenerative disc disease, as physiologic calcifications were noted in the soft tissues of the neck. September 2016 VA treatment records reflect that the Veteran reported neck pain. An October 2020 VA treatment record indicated that the Veteran was treated for chronic neck pain that he reported suffering from for over 20 years which had worsened recently while he was doing yard work. An x-ray showed evidence of moderate multilevel degenerative disc disease. In a December 2020 letter, a VA physician opined that it is at least as likely as not (at least a 50 percent probability) that the Veteran’s intervertebral cervical disc degeneration was due to an in-service injury suffered during a fall while skiing. The evidence of record is at least evenly balanced as to whether the Veteran’s neck disability is related to service. The Veteran has consistently described neck pain for which he has received treatment as evidenced by multiple VA treatment records, and his May 2013 post-service treatment records reflect a diagnosis of cervical spine degenerative disc disease. Additionally, the Veteran’s service treatment records indicate the Veteran suffered from blunt force trauma during a skiing accident, and he has competently and credibly asserted that he has experienced these symptoms of pain since his in-service skiing injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the first two requirements for service connection have been satisfied. The December 2020 VA physician indicated that it is at least as likely as not (at least a 50 percent probability) that the Veteran’s in-service skiing injury caused his intervertebral cervical disc degeneration. While the physician’s rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran’s in-service injury and subsequent symptoms, made it likely that they had resulted in his current disability. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board notes that there are no other nexus opinions of record regarding the Veteran’s neck disability, and a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for a neck disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Atherosclerosis The Veteran testified that he noticed a calcified clot in his femoral artery on an x-ray taken 10 years prior in 2010. He stated that he had not suffered from any heart problems or issues during service. The Veteran stated in his May 2017 notice of disagreement that his heart disability developed during his 24 years of active duty service. October 2012 post-service treatment records reflect a diagnosis of atherosclerosis with calcification of the abdominal aorta. In a December 2020 letter, a VA physician opined that it is at least as likely as not (at least a 50 percent probability) that the Veteran’s atherosclerosis, as evidenced by the calcification of the abdominal aorta noted on an October 2012 x-ray, was related to the Veteran’s service. The evidence of record is at least evenly balanced as to whether the Veteran’s atherosclerosis is related to service. The Veteran’s October 2012 post-service treatment records reflect a diagnosis of atherosclerosis which the December 2020 VA physician indicated is at least as likely as not (at least a 50 percent probability) related to service. While the physician’s rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran’s in-service injury and subsequent symptoms, made it likely that they had resulted in his current disability. See Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 294. The Board notes that there are no other nexus opinions of record regarding the Veteran’s atherosclerosis, and a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for atherosclerosis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Anemia The Veteran testified that he was feeling run down and had other signs of anemia like brittle fingernails, but has not been found to be anemic, even though he had a low red blood cell count within 5 years after leaving service. He stated that there are times that he has been unable to get out of bed due to weakness that may be caused by his anemia. He stated that he served in Camp Lejeune from 1980 to 1982, and believes his anemia is related to the benzene in the water. The Veteran stated in his May 2017 notice of disagreement that his anemia is related to his water consumption at Camp Lejeune. The Veteran’s personnel records reflect service in Camp Lejeune between August 1953 and December 1987. Thus, exposure to contaminated on-base water supply while in service in Camp Lejeune is presumed. January 2015 private treatment records reflect that the Veteran has a history of iron deficiency anemia dating back to May 2014. In a December 2020 letter, a VA physician opined that it is at least as likely as not (at least a 50 percent probability) that the Veteran’s iron deficiency anemia was due to the long term effects from prior exposure to toxic water at Camp Lejeune. The evidence of record is at least evenly balanced as to whether the Veteran’s anemia is related to service. The Veteran’s January 2015 private treatment records reflect a diagnosis of iron deficiency anemia, and the Veteran has provided competent and credible evidence of symptoms of anemia, thus the current diagnosis criteria for service connection has been satisfied. While the evidence of record indicates that the Veteran has a diagnosis of anemia and served in Camp Lejeune during the presumptive period, the evidence does not indicate that the Veteran suffers from aplastic anemia, thus service connection as a presumptive disease under 3.307(a)(7) is not warranted. However, the December 2020 VA physician opined that it is at least as likely as not (at least a 50 percent probability) that the Veteran’s anemia was related to exposure to toxic water during service in Camp Lejeune. While the physician’s rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran’s in-service toxic water exposure and subsequent symptoms, made it likely that it resulted in his current disability. See Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 294. The Board notes that there are no other nexus opinions of record regarding the Veteran’s anemia and a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for anemia is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Benign Prostate Hyperplasia The Veteran testified that he first started taking medication for his benign prostate hyperplasia a few years after service. The Veteran’s service treatment records do not reflect treatment for, or complaints of BPH, or BPH symptomatology. November 2016 VA treatment records reflect treatment for benign prostate hyperplasia. In December 2020, the Veteran submitted treatise material regarding the occurrence of prostate swelling and BPH in men under the age of 45 which indicated that environmental factors may affect the age of BPH symptom onset. Unfortunately, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for BPH because no VA examiner has opined whether the Veteran’s BPH is related to service. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury, is a low threshold. McLendon, 20 Vet. App. at 83. The evidence of record reflects that the Veteran has been receiving treatment for BPH since a few years after service, the Veteran has established service in Camp Lejeune, and the Veteran has provided competent evidence indicating that his BPH may be associated with exposure to contaminants during service in Camp Lejeune. As the evidence is insufficient to make an informed decision on the claims, a remand for a VA medical opinion is warranted. The matter is thus REMANDED for the following action: Obtain an opinion from an appropriate physician to determine the nature and etiology of the Veteran’s BPH. If an examination is deemed necessary, one should be conducted, to include via telehealth if feasible. The physician must opine whether the Veteran’s BPH is at least as likely as not related to service, to include as due to exposure to contaminants in the water while the Veteran was stationed in Camp Lejeune from 1980 to 1982. A complete rationale should accompany any opinion given. The Veteran is competent to report symptoms, treatment, and injuries, and these reports should be considered when formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.