Citation Nr: 21024981 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-24 157 DATE: April 27, 2021 ORDER Entitlement to service connection for degenerative arthritis and subchondral cysts of right hip (right hip disability) is denied. Entitlement to service connection for degenerative arthritis and subchondral cysts of left hips (left hip disability) is denied. Entitlement to service connection for a right leg disability is denied. FINDING OF FACT Despite the Veteran’s presumptive exposure to the contaminants in the water supply at Camp Lejeune, the preponderance of the evidence shows that the Veteran’s right and left hip disabilities as well as a right leg disability were not present in service or until many years thereafter, they are not related to service or to an incident of service origin, and they are not caused or aggravated by a service-connected disability, CONCLUSION OF LAW The criteria for entitlement to service connection for right and left hip disabilities as well as a right leg disability have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1980 to June 2000. The Veteran’s service records show that he was stationed at Camp Lejeune from November 1981 to February 1982. These matters arise from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board of Veterans’ Appeals (Board) in November 2018 and July 2020 and were remanded for further development, which has been completed. Post-Remand Compliance In this regard, the Board finds that the post-Remand development complied with the Remand because the VA examinations dated in September 2020 and January 2021 provide, collectively, VA with medical evidence adequate to adjudicate the claims of service connection right and left hip disabilities as well as a right leg disability under all theories of entitlement to include there being due to contaminants in the water supply at Camp Lejeune and secondary service connection. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the Remand because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is no basis to remand this appeal. The Service Connection Claims The Veteran contends he has a bilateral hip disability that was incurred in or due to his time in service or is proximately due or aggravated by his service-connected disabilities. Alternatively, the Veteran contends that he had a cyst on his left hip and that he believed this cyst was due to contaminated water at Camp Lejeune. See February 2017 Statement in Support of Claim. The Veteran contends he has a right leg disability that was incurred in or due to his time in service or is proximately due or aggravated by his service-connected disabilities. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board also notes that in order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987; (2) that he or she currently suffers 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 current 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 enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin’s lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson’s disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309(f). The availability of presumptive service connection for a disability based on the contaminants in the water supply at Camp Lejeune does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the record has current disabilities. Specifically, a review of the record on appeal shows that Veteran being diagnosed with subchondral cysts and arthritis of the right and left hip as well as arthritis of the right knee. See, e.g., March 2016 Carolina Orthopedics Office Visit Note; March 2016 VA Examination’ July 2016 Radiology Report. Next, the Board finds that as to all the issues on appeal the presumptions found at 38C.F.R. §3.309(f) apply to the claims because the Veteran had documented service at Camp Lejeune from November 1981 to February 1982. The Boards also finds that the Veteran is competent to report on the events he experiences while on active duty as well as the observable manifestations of his disabilities. See Davidson, supra. i. The 3.309(a) Presumptions As to service connection under 38 C.F.R. § 3.309(a), the record does not show the Veteran being diagnosed with arthritis in either hip or the right knee in the first year following his separation from service. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not apply to the current appeal and do not help this Veteran establish service connection for his right and left hip disabilities as well as a right leg disability. ii. The 3.309(f) Camp Lejeune Presumptions As to service connection under 38 C.F.R. § 3.309(f), while the record shows that the Veteran had the required 30-days of service, neither cysts nor arthritis are one of the specifically enumerated disorders for which the regulations provide a presumption of in-service incurrence. See 38 C.F.R. § 3.309(f). Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(f) do not apply to the current appeal and do not help this Veteran establish service connection for his right and left hip disabilities as well as a right leg disability. iii. Service Connection under 38 C.F.R. § 3.303 Next, as noted above, the availability of presumptive service connection for a disability based on the contaminants in the water supply at Camp Lejeune does not preclude an appellant from establishing service connection with proof of direct causation. Stefl, supra. Moreover, the Veteran’s service treatment records show he was seen for right hip pain after playing basketball in service in June 1983. The Veteran’s service treatment records also show he was seen for a ligament strain in the right leg after playing football in service in October 1982. Furthermore, the Veteran is already service-connected for patellar chondromalacia in the right knee. However, the earlier and subsequent service treatment records, including the December 1983, September 1987, January 1993, January 1998, and May 2000 examinations, are otherwise negative for an injury, history, complaints, symptoms, and/or a diagnosis of hip and right leg disabilities. In fact, the Board notes that at the December 1983, January 1998, and May 2000 examinations the Veteran specifically denied having a history of arthritis, bone/joint deformity, and trick or locked knee. Likewise, the Board notes that when examined in December 1983, September 1987, and January 1993 it was opined that his lower extremity examination was normal. See Colvin, supra. Therefore the Board finds, as the December 1983, September 1987, and January 1993 examiners must have found, that any problems the Veteran had with his hips and right leg while on active duty were transient in nature and resolved by the time he separated from military service. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a disease or an injury while on active duty that caused his current right and left hip disabilities as well as a right leg disability despite his presumptive exposure to the contaminants in the water at Camp Lejeune and despite the treatment for right hip pain and a ligament strain in the right leg while on active duty. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a); Colvin, supra. The detailed records in service provide particularly negative evidence against the claims, clearly indicating treatment for problems other than the issues before the Board. Similarly, the Board finds that the record does not show that the Veteran had a continued problem with right and left hip disabilities as well as a right leg disability in and since service. In fact, as noted above, when seen in December 1983, January 1998, and May 2000 the Veteran specifically denied having a history of arthritis, bone/joint deformity, and trick or locked knee and on examination in December 1983, September 1987, and January 1993 it was opined that his lower extremity examination was normal; providing highly probative evidence against the claims. Likewise, and more important than the above, the post-service record is negative for complaints, diagnoses, or treatment for right and left hip disabilities as well as a right leg disability until over a decade after the Veteran’s 2000 separation from service. See, e.g., March 2016 Carolina Orthopedics Office Visit Note; March 2016 VA Examination’ July 2016 Radiology Report. At this point, the service medical records and the post-service medical evidence provides evidence against the claims. See Owens, supra. The records clearly indicate his problems began many years after service with no indication of a connection to service, or anything in service. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with right and left hip disabilities as well as a right leg disability in and since service despite any claim by the Veteran to the contrary. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the most probative evidence of record shows that the Veteran’s post-service right and left hip disabilities as well as a right leg disability are not due to his military service despite his presumptive exposure to contaminated water at Camp Lejeune and despite the documented in-service complaints discussed above. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). As to the hips, the Board notes that a private treatment record states the Veteran’s hip arthritis could possibly be related to his military career and events in the military. See March 2016 Carolina Orthopedics Office Visit Note. However, the language used by the private physician does not indicate that it is at least as likely as not (50 percent or greater probability) that his hip disability is related to active service. Therefore, the Board proves this opinion little probative weight. See Owens, supra; Tirpak v. Derwinski, 2 Vet. App. 609 (1992). On the other hand, as to the hips, in September 2020 the VA examiner opined that the Veteran’s bilateral hip disability is less likely than not incurred in or caused by an in-service injury, event, or illness. In reaching their rationale, the examiner noted that the Veteran’s separation examination was silent for any hip concerns or cysts. A bilateral hip diagnosis was not given until 2015, approximately 15 years after service. Furthermore, the Veteran had no hip diagnosis or subchondral cysts within a year from separation of service. Also, as to the hips, the Veteran had another examination for his hips in January 2021 in which the examiner reviewed his file. The examiner opined it was less likely than not the Veteran’s degenerative arthritis and subchondral cysts of both hips is caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune. After reviewing the medical literature of trichloroethylene (TCE), tetrachloroethylene (PCE), vinyl chloride (VC), and benzene, the examiner found no association with osteoarthritis or subchondral cysts. The examiner also cited to the medical literature referenced. Consequently, the examiner found that the Veteran’s bilateral hip disability is not caused by or a result of his exposure to contaminated water at Camp Lejeune. As to the right leg, the Veteran had an examination for his right leg in September 2020 in which the examiner reviewed his file. The examiner opined that it is less likely than not the Veteran’s claimed condition incurred in or is caused by the claimed in-service injury, event, or illness. In reaching their rationale, the examiner noted that multiple examinations marked “no” for joint problems and there was no right knee diagnosis that could be given on the 2019 disability benefits questionnaire. Therefore, no medical evidence provided shows the Veteran had any right knee complaint, diagnosis, or treatment in service that had chronic consequences. The Board finds the opinions by the September 2020 and January 2021 VA examiners the most probative evidence of record because, unlike the March 2016 Carolina Orthopedics Office Visit Note, they were provided after a review of the record on appeal and an examination of the Veteran as well as because they are supported by citation to evidence found in the record, and controlling medical literature. See Owens, supra. In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused his current right and left hip disabilities as well as a right leg disability). See Davidson, supra. To the contrary, it is the subject of numerous and advanced-level scientific/medical studies. See 82 Fed. Reg. 4173 (Jan. 13, 2017) (discussing an Agency for Toxic Substances and Disease Registry (ATSDR) review and stating that “VA reviewed evidence from several internationally recognized scientific authorities, including groups other than the NRC.”). Lastly, the Board finds that the most probative evidence of record shows that the Veteran’s post-service right and left hip disabilities as well as a right leg disability are not caused or aggravated by a service connected disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310; also see Allen, supra; Wallin, supra; Ward, supra. As to the hips, the September 2020 VA examiner also opined that the Veteran’s bilateral hip condition is less likely than not proximately due to or the result of the Veteran’s service-connected conditions. In reaching their rationale, the examiner stated there is no clear evidence from a review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb or the spine, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the individual’s gait pattern has been altered to the extent there is an obvious Trendelenburg gait. The examiner opined that this level of severity is not supported based on a review of the record, history, or examination. Furthermore, it is not unusual for two joints to share properties in the same person, but one joint’s disease does not spread to another or cause damage to it. Therefore, the bilateral hip disability is less likely than not related to the service-connected lumbar spine and hand osteoarthritis. As to the right leg, the September 2020 VA examiner also opined that the Veteran’s claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected conditions. In reaching their rationale, the examiner offered a similar opinion to the one given for the Veteran’s bilateral hip disability and stated there is no clear evidence from a review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb or the spine, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the individual’s gait pattern has been altered to the extent there is an obvious Trendelenburg gait. The examiner opined that this level of severity is not supported based on a review of the record, history, or examination. Furthermore, it is not unusual for two joints to share properties in the same person, but one joint’s disease does not spread to another or cause damage to it. Therefore, the right knee is less likely than not related to the service-connected lumbar spine and hand osteoarthritis. The Board finds the opinions by the September 2020 VA examiner the most probative evidence of record because it was provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by citation to evidence found in the record, controlling medical literature, and not contradicted by any other medical evidence of record. See Owens, supra; Colvin, supra. In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused his current right and left hip disabilities as well as a right leg disability). See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for right and left hip disabilities as well as a right leg disability despite his presumptive exposure to the contaminants in the water supply at Camp Lejeune and despite his treatment for right hip and right leg problems while on active duty. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. Both the facts of this case (service records and post-service records) and the medical opinion evidence provides evidence against these claims that the Board cannot, unfortunately, ignore. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.