Citation Nr: 21015111 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-19 690 DATE: March 16, 2021 ORDER Entitlement to service connection for chronic low back pain (osteoarthritis of the lumbar spine) is denied. Entitlement to service connection for defective vision, to include nearsightedness with spots on the retinas, to include as secondary to service-connected hypertensive heart disease with chronic angina or hypertension, is denied. Entitlement to service connection for neurobehavioral effects (claimed as neurological issues), claimed as due to contaminated water exposure at Camp Lejeune, is denied. Entitlement to service connection for lower lumbar radiculopathy (claimed as numb left leg), to include as secondary to service-connected hypertensive heart disease with chronic angina or hypertension, is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertensive heart disease with chronic angina or hypertension, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected hypertensive heart disease with chronic angina or hypertension, is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran’s low back disability is not related to any injury, disease, or event incurred in service. 2. 1. The most probative evidence reflects that the Veteran’s defective vision is not related to any injury, disease, or event incurred in service, or to a service-connected disability. 3. The preponderance of the evidence of record is against finding that the Veteran has had neurobehavioral effects, to include as due to exposure to contaminated water at Camp Lejeune. 4. 1. The most probative evidence reflects that the Veteran’s lower lumbar radiculopathy is not related to any injury, disease, or event incurred in service, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic low back pain (osteoarthritis of the lumbar spine) have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for defective vision are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2019). 3. The criteria for service connection for neurobehavioral effects, claimed as due to contaminated water exposure at Camp Lejeune, are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 4. The criteria for service connection for lower lumbar radiculopathy (claimed as numb left leg), to include as secondary to service-connected hypertensive heart disease with chronic angina or hypertension, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1973 to September 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia and an October 2014 rating decision issued by the VA RO in Louisville, Kentucky. This claim was previously before the Board in January 2018, at which time it was remanded for further development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is “shown as such in service” (“meaning clearly diagnosed beyond legitimate question,” Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, 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). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). VA has acknowledged that persons residing or working at Camp Lejeune from August 1953 through 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). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the 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. See VBA Training Letter 11-03 (Revised) (November 29, 2011). Accordingly, VA now essentially presumes that, absent evidence to the contrary, benefits claimants who served at Camp Lejeune between 1953 and 1987 were potentially exposed to the range of chemicals that contaminated the water there. Id. at 6. Effective March 14, 2017, VA amended its adjudication regulations, 38 C.F.R. §§ 3.307 and 3.309, regarding presumptive service connection, adding certain diseases associated with contaminants present in the base water supply at Camp Lejeune. The final rule establishes that veterans 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 eight associated 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) are presumed to have incurred or aggravated the disease in service for purposes of entitlement to VA benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for chronic low back pain (osteoarthritis of the lumbar spine) The Veteran received private treatment for his chronic low back pain in June 1996 and indicated that it started in approximately 1984. He did not have any problems with his back, except on rare occasions, until a 1989 motor vehicle accident. The Veteran stated that he was told the accident aggravated his back problem, but there were no fractures or obvious disc changes. He was subsequently placed on medications and treated with short term physical therapy. Based on the results of the examination, the examiner diagnosed the Veteran with chronic low back pain with radicular changes. Pursuant to the January 2018 Board remand, the Veteran received a VA examination in October 2019 and the examiner noted diagnoses of lumbago and degenerative disc disease. The Veteran stated that he had no back conditions prior to service. Based on the results of the examination, the examiner concluded that the Veteran’s back conditions were less likely than not related to service. The August 1977 separation examination noted a normal spine, but a 1992 VA problem list noted low back pain following a motor vehicle accident in 1989. Furthermore, the June 1996 private treatment record noted that the Veteran’s low back pain began in 1984, seven years following active duty. The Veteran’s back problems were rare until the motor vehicle accident. The Board finds the October 2019 VA examination results to be the most probative evidence of record. The examiner’s findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran’s low back condition and its lack of connection to service. The examiner provided a thorough opinion explaining why it was less likely than not that it was the result of his military service. The examiner relied on his medical expertise to offer his opinion with regards to the etiology of the Veteran’s low back condition, competently linking it to his 1989 motor vehicle accident. As a result of the competent medical opinions regarding causation based on an accurate interpretation of the record, the Board finds that the claim is not in equipoise and that service connection for chronic low back pain (osteoarthritis of the lumbar spine) is therefore not warranted. 2. Entitlement to service connection for defective vision, to include nearsightedness with spots on the retinas The July 1973 entrance examination reflects that the Veteran’s vision was 20/20. The August 1977 separation examination reflects that the Veteran’s vision was 20/25 in the right eye and 20/30 in the left eye, and the examiner noted a visual defect. The Veteran submitted a statement in April 1992 that he had a right eye astigmatism, near sightedness, and “spots” on his eyes bilaterally. He indicated that his service medical records revealed problems with his eyes. An August 1994 private treatment record reflects that the Veteran’s pupils were equal and reactive to light. There was no scleral icterus, and the fundi were negative. A June 1996 private treatment record reflects that the Veteran stated he had been told he had a lazy right eye. He also stated that his near vision was become worse and he felt he needed medication. The Veteran had poor night vision and had been told that there were some problems in his retinas, but he was unsure of the exact nature of the problem. Upon examination, extraocular movement revealed left esophoria, or an inward deviation of the eye. The Veteran received an annual check-up in 2003 and presented with no problems or complaints. Upon examination, his pupils were equal, regular, and reactive to light and accomodation. The extraocular muscles were intact, and the visual fields were grossly intact. The Veteran continued to receive similar results during VA treatment afterwards. See July 2004 MD/PA Clinic Note, January 2007 MD/PA Clinic Note, August 2009 Primary Care Physician Note Pursuant to the January 2018 Board remand, the Veteran received a VA examination in October 2019 and the examiner diagnosed bilateral cataracts. Based on the results of the examination, the examiner concluded that the condition was less likely than not caused by service, and less likely than not caused or aggravated by a service-connected condition, as they were related to age. The Board finds the October 2019 VA examination results to be the most probative evidence of record. The examiner’s findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran’s bilateral cataracts and their lack of connection to service. The examiner provided a thorough opinion explaining why it was less likely than not that it was the result of his military service, and less likely than not caused or aggravated by a service-connected condition. The examiner relied on his medical expertise to offer his opinion with regards to the etiology of the Veteran’s bilateral cataracts, competently linking the condition to his age. Disabilities related to the eye require specialized training for a determination as to diagnosis and causation, and therefore lay opinions on etiology do not constitute competent evidence. The Veteran’s statements on etiology are therefore not afforded probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). While there is competent, credible evidence that the Veteran’s vision worsened upon separation from service, there is no evidence of a diagnosed disability at that time. Furthermore, there are no competent medical opinions of record that the Veteran’s visual defect is related to any in-service event or service-connected condition. As a result of the competent medical opinions regarding causation and aggravation based on an accurate interpretation of the record, the Board finds that the claim is not in equipoise and that service connection for defective vision is therefore not warranted. 3. Entitlement to service connection for neurobehavioral effects (claimed as neurological issues), claimed as due to contaminated water exposure at Camp Lejeune The Veteran submitted his claim in January 2014 indicating that he had neurological issues that were a result of the contaminated water at Camp Lejeune. For purposes of hospital care and medical services for Camp Lejeune veterans, “neurobehavioral effects” is among the covered illnesses or conditions. 38 C.F.R. § 17.400(b). For a Camp Lejeune veteran, VA will assume that a covered illness or condition is attributable to the veteran’s active duty service at Camp Lejeune unless it is clinically determined, under VA clinical practice guidelines, that such an illness or condition resulted from a cause other than such service. Id. § 17.400(c). Having already established that the Veteran is presumed to have been exposed during his service at Camp Lejeune to contaminants in the water supply, the question for the Board is whether he, in fact, has a disability manifested by neurobehavioral effects that is attributable to such exposure. However, the medical evidence of record fails to establish a diagnosis relating to neurobehavioral effects, other than the psychiatric disorder for which service-connection is already in effect. In a February 2013 VA medical opinion, the VA medical examiner indicated that neurobehavior conditions have a “limited and suggestive” link to contaminated water at Camp Lejeune. There was no evidence of complaints or positive findings to support a diagnosis of neurobehavioral effects at doctor’s visits or on physical examinations. The examiner noted that such effects were mentioned in VA documents but were not substantiated in any medical records. An October 2019 medical opinion found again found that a diagnosis of neurobehavioral effects was not confirmed. The examiner highlighted that neurobehavioral symptoms must have begun while the Veteran was at Camp Lejeune and continued through to the present, with the exception of Parkinson’s disease. Symptoms must not be associated with more common neurological or psychiatric conditions not known to be related to exposure to contaminated drinking water at Camp Lejeune. Neurobehavioral symptoms or deficits included delayed reaction time or problems with memory, visuomotor function, attention, motor function, contrast sensitivity or color discrimination. A review of the record did not substantiate the presence of any neurobehavioral symptoms beginning at Camp Lejeune and continuing through to the present. Other than his current diagnosis of service-connected depressive disorder, the Veteran’s medical treatment records do not indicate cognitive decline indicative of a clinical neurobehavioral condition. For example, a November 1993 private psychological evaluation found that psychomotor behavior was within normal limits and gait was rather slow and deliberate but otherwise unremarkable. His October 2019 VA Mental Disorders examination also found no history of neurodevelopmental disorders, seizure disorder, or attentional disorder. Thus, the Board finds that the evidence does not support a finding that the Veteran has a current diagnosis of a neurobehavior disorder. Without such evidence, service connection for a neurobehavior disorder due to exposure to contaminated water at Camp Lejeune cannot be granted. Accordingly, the claim must be denied. the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b). 4. Entitlement to service connection for lower lumbar radiculopathy (claimed as numb left leg), to include as secondary to service-connected hypertensive heart disease with chronic angina or hypertension The Veteran received a VA examination in November 2009 and claimed his left lower extremity neuropathy was caused by hypertension. He stated that he injured his lower back during service and developed intermittent numbness in his left leg. Electromyography (EMG) of the bilateral lower extremities was completed and was positive for mild lower lumbar radiculopathy. The examiner concluded, however, that it was not caused by hypertension or hypertensive heart disease, as the symptoms predated the diagnosis of those conditions. Furthermore, hypertension and hypertensive heart disease were not known causes or risk factors for radiculopathy. The Veteran received a VA examination in November 2019 and the examiner noted diagnoses of meralgia paresthetica and left lower extremity radicular pain. The Veteran stated that he had burning, sharp pain of the right outer and anterior thigh since May 2019 but did not receive any treatment. He also denied having any left lower extremity pain upon examination. Based on the results of the examination, the examiner concluded that the Veteran’s condition was less likely than not caused by service, as there was no documentation that he was evaluated, diagnosed, or treated for lower extremity neuropathy. He also concluded that the condition was less likely than not caused or aggravated by hypertensive heart disease or hypertension. Meralgia paresthetica was caused by compression of the lateral femoral cutaneous nerve and lumbar radiculopathy occurred when the spinal nerve roots were irritated or compressed. There was no documentation in medical literature that these conditions were caused or aggravated by hypertensive heart disease or hypertension. Peripheral neuropathy involved nerves whereas heart disease and hypertension involved blood vessels and the heart. The anatomical structures for the nerves and for the blood vessels were separate and distinct. The Board finds the November 2019 VA examination results to be the most probative evidence of record. The examiner’s findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran’s lower lumbar radiculopathy condition and its lack of connection to service and his service-connected hypertensive heart disease and hypertension. The examiner provided a thorough opinion explaining why it was less likely than not that it was the result of his military service or his service-connected disability. While the examiner relied on his medical expertise to offer his opinion with regards to the etiology of the Veteran’s lower lumbar radiculopathy, he also cited to a published medical report to support his conclusion. As a result of the competent medical opinions regarding causation and aggravation based on an accurate interpretation of the record, the Board finds that the claim is not in equipoise and that service connection for a lower lumbar radiculopathy is therefore not warranted. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type II, to include as secondary to service-connected hypertensive heart disease with chronic angina or hypertension Pursuant to the January 2018 Board remand, the Veteran received a VA examination in October 2019 and the examiner concluded that the Veteran did not have a current diagnosis of diabetes. The examiner highlighted that the medication list from a VA medical center did not include any medications for the treatment of diabetes, and the Veteran’s hemoglobin A1C and glucose level were both within normal limits in September 2019. Current VA treatment records, however, reflect that the Veteran has a current diagnosis of diabetes. See October 2020 Primary Care Physician Note. Therefore, the Board finds that a new examination is warranted to determine the nature and etiology of the Veteran’s diabetes. 2. Entitlement to service connection for COPD to include as secondary to service-connected hypertensive heart disease with chronic angina or hypertension Pursuant to the January 2018 Board remand, the Veteran received a VA examination in October 2019 and the examiner concluded that the Veteran did not have a current diagnosis of diabetes. The examiner highlighted that the Veteran had a pulmonary function test in October 2019 which showed no restriction and no obstruction, so there was no COPD. Current VA treatment records, however, reflect that the Veteran has a current diagnosis of COPD. See December 2019 Cardiology Consultation. Therefore, the Board finds that a new examination is warranted to determine the nature and etiology of the Veteran’s COPD. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his currently diagnosed diabetes mellitus. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s diabetes mellitus had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes was caused or aggravated by his service-connected hypertensive heart disease and/or hypertension. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s diabetes disability has been permanently aggravated/worsened by his service-connected conditions, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his COPD. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s COPD had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s COPD was caused or aggravated by his service-connected hypertensive heart disease and/or hypertension. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s COP disability has been permanently aggravated/worsened by his service-connected conditions, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, Associate Attorney 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.