Citation Nr: 21015025 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-46 091 DATE: March 16, 2021 ORDER Entitlement to service connection for a digestive disorder, currently diagnosed as gastroesophageal reflux disease (GERD), due to exposure to contaminated water at Camp Lejeune is denied. Entitlement to service connection for a tic disorder, due to exposure to contaminated water at Camp Lejeune is denied. FINDINGS OF FACT 1. The Veteran’s GERD is not shown to have manifested until many years after service and is not shown to be causally related to service, to include the contaminated water at Camp Lejeune. 2. The evidence of record does not show that the Veteran has a current tic disorder for VA compensation purposes during the appellate period, which first manifested during service or is otherwise shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a digestive disorder, currently diagnosed as GERD, due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for a tic disorder, due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1979 to June 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the November 2015 VA form 9, Substantive Appeal, the Veteran declined an optional Board hearing. These matters were last adjudicated in the September 2020 Supplemental Statement of the Case. Evidence received since then was submitted by the Veteran without a request for initial consideration by the agency of original jurisdiction (AOJ), is duplicative of evidence already initially considered by the AOJ, or is irrelevant to this appeal. See 38 U.S.C. § 7105(e) (2018); 38 C.F.R. § 20.1305 (formerly 20.1304). Accordingly, the Board may proceed with its appellate review of the matters. These matters were previously before the Board in May 2019, where they were remanded for additional development. The Board determined that the Veteran should be afforded additional examinations for his GERD and tic syndrome claims. Such development has been completed and the matter is once again before the Board for further appellate review. 1. Entitlement to service connection for a digestive disorder, currently diagnosed as GERD, due to exposure to contaminated water at Camp Lejeune. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. VA has established regulations relating to presumptive service connection for diseases associated with contaminants present in the water supply at Camp Lejeune. 82 Fed. Reg. 4184-4185 (Jan. 13, 2017) (codified at 38 C.F.R. §§ 3.307, 3.309). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a claimant must show the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran suffered 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 disease process 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). The National Academy of Sciences’ National Research Council (NRC) published its report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects,” in 2009. This report included a review of studies addressing exposure to trichloroethylene (TCE) and perchloroethylene (PCE), as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. Fourteen diseases were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. These include 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. These disabilities are not included in the list of conditions presumptively linked to contaminated water at Camp Lejeune under 38 C.F.R. § 3.309(f). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran appeals the denial of service connection for GERD, due to exposure to contaminated water at Camp Lejeune. Here, the Veteran’s military personnel records indicate that he was stationed in Camp Lejeune during service and the RO has conceded service at Camp Lejeune during the recognized period of contamination; thus exposure to contaminated water at Camp Lejeune is conceded. See September 2014 rating decision. Neither the list of 14 diseases in the NRC report nor VA’s list of conditions presumptively associated with Camp Lejeune exposures include GERD. See 38 C.F.R. § 3.309(f). Accordingly, the Veteran is not entitled to presumptive service connection based on exposure to contaminated water at Camp Lejeune. Nonetheless, this does not preclude establishing service connection on a direct basis. Turning to the evidence, the Veteran’s service treatment records (STR) reflect treatment for hyperactive bowel, vomiting for a week, and a diagnosis of probable gastroenteritis. See October 1980 STR. However, his STRs do not show any reoccurrences during service. Additionally, the Veteran’s clinical evaluation of relevant body systems was deemed normal upon separation. See June 1982 separation examination. According to a report of medical history completed by the Veteran in November 1983, he marked “no” for stomach, liver, or intestinal trouble and frequent indigestion, and stated he was in “good health.” Thus, the Veteran affirmatively denied the presence or history of relevant symptoms. The Veteran was afforded a VA examination in October 2011. The examiner opined that “there is no link between diarrheal illness or his abdominal complaints to drinking of contaminated water at Camp Lejeune.” The Veteran submitted a disability benefits questionnaire (DBQ) in January 2014. The Veteran’s physician diagnosed the Veteran with GERD. He was diagnosed with this condition on October 23, 2013. While the examiner listed his symptoms, no opinion was rendered as to the etiology of his GERD and whether it was due to his military service. A VA medical opinion was received in May 2020. The examiner opined that the Veteran’s GERD was not caused by or a result of his exposure to contaminated water at Camp Lejeune. The examiner reviewed the article submitted by the Veteran, “ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases,” as well as the general medical literature, and concluded that “there are no studies cited that document GERD as a sequelae to exposure to CLCW.” Additionally, the examiner noted that risk factors associated with GERD can include age and obesity. The Veteran was afforded an in-person VA examination in September 2020. The examiner opined that his GERD and hiatal hernia is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that while an October 1980 STR showed that the Veteran was seen for hyperactive bowel, vomiting, and a diagnosis of possible gastroenteritis, “the visit in service is more consistent with an acute gastrointestinal illness as there are no further service treatment records regarding it.” Additionally, the examiner stated that “while vomiting can be a symptom of GERD it is not diagnostic of GERD.” The VA examiner also highlighted that a diagnosis of GERD was not found in the Veteran’s STRs or noted at service discharge. The Veteran’s claims file does not contain any competent evidence indicating that any current digestive disorder is attributable to service. According to the Veteran’s medical records, the Veteran was diagnosed with GERD in October 2013, which was approximately 31 years after service. Although the Veteran had a diagnosis of rectal bleeding in November 1999, the Veteran’s treatment records indicate that his gastrointestinal tests were negative prior to his diagnosis in 2013. See e.g., October 1999, October 2008, and May 2009 Private Treatment Records. For the reasons detailed above, the probative evidence of record is against the claim, and service connection for a digestive disorder on a direct basis or presumptive basis is not warranted. The medical evidence indicates that there is no causal basis between the Veteran’s GERD and service. In rendering this decision, the Board has considered the Veteran’s lay statements and notes that he is competent to report his symptoms and the circumstances surrounding his digestive/gastrointestinal disorder. Although lay persons are competent to provide opinions on observable lay symptoms or conditions, the specific issue in this case—the etiology of a gastrointestinal disorder—falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, the Veteran’s lay assertions regarding medical nexus are not competent or probative in this appeal. Overall, the Board finds that the opinions of the VA examiners are probative and persuasive as to the etiology of the Veteran’s disability. The expert medical opinions were prepared by skilled and neutral medical professionals after review of the claims file and examinations of the Veteran, as appropriate. Furthermore, collectively, the VA medical opinions are supported by a complete and factually accurate explanatory rationale. The Veteran has not disputed the expert medical opinion. While the Veteran submitted a DBQ in January 2014, the physician rendered no opinion as to the etiology of his digestive disorder. Therefore, the DBQ has no probative value on the issue of medical nexus. Lastly, the Board has considered the Veteran’s claim under the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a) pertaining to continuity of symptomatology. However, the Veteran is not diagnosed with a “chronic” disease as set forth in 38 C.F.R. § 3.309(a) for all issues on appeal. As such, any of his assertions alone cannot support an award of service connection pursuant to 38 C.F.R. § 3.303(b), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), or pursuant to the presumptive provisions of 38 C.F.R. § 3.309(a). The preponderance of the evidence is against the claim. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102 (2018), Gilbert v. Derwinski, 1 Vet. App. 61 (1991). The Veteran’s appeal seeking service connection for GERD is denied. 2. Entitlement to service connection for a tic disorder, due to exposure to contaminated water at Camp Lejeune. The Veteran appeals the denial of service connection for a tic disorder, due to exposure to contaminated water at Camp Lejeune. Although tic disorder is not one of the presumptive service connection diseases associated with contaminants present in the water supply at Camp Lejeune, this does not preclude establishing service connection on a direct basis. Moreover, while the NRC listed “neurobehavioral effects” as having a limited/suggestive evidence of an association with the volatile organic compounds found in the drinking water at Camp LeJeune, the Veteran has not reported any adverse emotional, behavioral, or learning problems. Instead, he has reported that his claimed “tic” disability has been manifested by uncontrollable jumping. See e.g. April 2014 lay statement. The Veteran’s service STRs do not reflect any lay or medical evidence of tic syndrome. The June 1982 separation examination listed all relevant body systems, including the neurologic system, as clinically normal at service discharge. Additionally, in his November 1983 report of medical history, the Veteran stated that he was in “good health.” The Veteran was afforded a VA examination in May 2014, where the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She reasoned that review of the Veteran’s claim folder showed no evidence of a tic condition or eye condition and his post-service treatment records were negative for any neurological condition. Ultimately, the examiner concluded that there was no evidence for a diagnosis of tic syndrome associated with exposure to contaminated water at Camp Lejeune. The VA examiner stated that in the absence of a current disability for the Veteran, an association to contaminated water at Camp Lejeune could not be entertained. Nevertheless, the VA examiner stated that review of the medical literature showed no association between tic syndromes and exposure to contaminated water at Camp Lejeune. A VA medical opinion was received in May 2020, where the examiner opined that the Veteran’s claimed condition was not caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune. The examiner stated that “[p]rovided medical records failed to document the diagnosis of “tic syndrome” or Tourette’s syndrome or Tardive dyskinesia.” The examiner reviewed the article, “ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases,” as well as the general medical literature, and concluded that “there are no studies cited that document tic syndrome as a sequelae to exposure to CLCW.” The Veteran was afforded an in-person VA examination in September 2020. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Similarly, the examiner found that the Veteran did not have a diagnosis of tic syndrome. Objective testing was deemed normal with no eye twitching or tics noted. The examiner stated that his “[s]ymptoms are subjective only,” and therefore, no nexus could be established. Upon review of the medical evidence of record, the Board finds that the medical opinions are probative, as they were rendered by medical professionals that reviewed the Veteran’s relevant medical records and lay statements, to include service treatment records and post-service medical evidence, and provided a persuasive rationale as to the absence of a current disability or diagnosis. The Veteran has submitted internet articles showing some indication that exposure to TCE has been reported to have adverse effects on the central nervous system; however, this evidence is irrelevant to the question of whether the Veteran has experienced a current disability within the period on appeal. Additionally, the May 2014 and May 2020 VA examiners explained that they could not find any sound medical literature documenting an association between tic syndromes and exposure to contaminated water at Camp Lejeune. The Veteran’s claims file does not contain any competent evidence suggesting a diagnosis of tic syndrome, and neither the Veteran nor his representative has presented such evidence. Further, the only opinion supportive that his claimed condition is related to service consists of the Veteran’s own personal opinion. While the Veteran is competent to report any symptoms he may experience, he is not competent to diagnose the onset or etiology of any claimed tic syndrome. As such, his personal opinion has no probative value. See Jandreau, 492 F.3d at 1372. Historically, symptoms, alone, without a diagnosed or identifiable underlying malady, were not sufficient to establish a current disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that symptoms (such as pain) can constitute a current disability under 38 U.S.C. § 1110 (and 1131), so long as it results in a functional impairment of earning capacity. Here, the Veteran has not established that his claimed symptoms of body jumping have resulted in a functional impairment which limited his earning capacity. Consequently, the Board finds that the Veteran has not experienced a current disability for VA purposes under Saunders. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability (i.e., functional impairment in earning capacity). Regardless of the theory of entitlement, in the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no showing of tic syndrome (or related symptoms causing functional impairment of earning capacity) at the time of filing of the claim or at any time during this appeal. Should the pathology appear in the future, the Veteran may file a new claim at that time. As the preponderance of the evidence is against the finding of a current disability during the appellate period, entitlement to service connection for a tic syndrome is denied. M. Galante Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.