Citation Nr: 21023583 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-56 190 DATE: April 21, 2021 ORDER Service connection for multiple sclerosis (MS) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s MS was incurred in service, had manifested, to a degree of 10 percent or more, in service or within seven years from the date of separation from service, or is otherwise due to his service. CONCLUSION OF LAW The criteria for service connection for MS are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1973 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision. The Board remanded the claim for further development in October 2019. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that he has MS as a result of his exposure to contaminated water at Camp Lejeune. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases, including MS, may also be established on a presumptive basis. With the existence of current MS, service connection is presumed from a showing that the same disease manifested, to a degree of 10 percent or more, in service or within seven years from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For MS which did not manifest to a compensable degree during service or within seven years following the veteran’s separation from service, service connection can still be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Continuity of symptomatology is established if, in addition to a current disability, the Veteran can demonstrate (1) that the condition was “noted” during service or within seven years following his separation from service; and (2) evidence of post service continuity of the same symptomatology. Id. The Board concludes that, while the Veteran has a current diagnosis of MS the preponderance of the evidence weighs against finding that the Veteran’s current disability began during service or are otherwise related to such exposure or another in-service injury, event, or disease. At the outset the Board notes that service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), 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). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: 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). Multiple sclerosis is not one of those disease listed in the amendment. As such, even though the Veteran was stationed at Camp Lejeune, he is not entitled to service connection for multiple sclerosis on a presumptive basis due to his exposure to contaminated water at Camp Lejeune. However, service connection may also be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board concludes that, while the Veteran has a current diagnosis of MS the preponderance of the evidence weighs against finding that the Veteran’s current disability began during service or are otherwise related to such exposure or another in-service injury, event, or disease. Private medical records show the Veteran was diagnosed with MS in September 1994, satisfying the first element of a service connection claim. However, the private medical treatment records establishing the diagnosis of MS also note that the Veteran’s problems first began in December 1993, over 16 years after the Veteran left active duty service, with decreased motor abilities in his left leg. Further, the record is silent for any complaints related to MS prior to the notation of problems first beginning in 1993. Therefore, the Veteran’s MS did not manifest to a compensable degree within seven years following separation of service, nor there is no continuity of symptomatology post service. As a result, service connection is not warranted in a presumptive basis. Regarding service connection on a direct basis, as stated previously, the Veteran has established a current diagnosis fulfilling the first element. However, the Veteran underwent a VA examination in October 2020. The examiner concluded that it was less likely than not the Veteran’s MS was incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner noted that the Veteran’s medical history was notable for the medical conditions which are known risk factors for the development of MS. These conditions included a history of smoking as well as a history of Epstein Barr Virus (EBV) that had occurred around the age of 6 in 1960. The examiner found that EBV is more medically relevant than any exposure to contaminants at Camp Lejeune. Therefore, based on the above, the examiner found that the diagnosed MS is less likely than not related to the Veteran’s service. The Veteran has claimed that his EBV was aggravated as a result of his service which then caused his subsequent MS. Although the Veteran is competent to report observable complaints, he is not competent to provide a diagnosis or etiology to account for such complaints. Rather this question requires medical expertise due to the complex nature of the disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (Continued on the next page)   As such, the preponderance of the evidence is against service connection for MS. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.