Citation Nr: 21026103 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-18 441 DATE: April 29, 2021 ORDER Service connection for chronic otitis media and associated right ear cholesteatoma is granted. Service connection for depression and memory loss, to include as due to Camp Lejeune contaminated water exposure, is denied. FINDINGS OF FACT 1. Chronic otitis media and associated right ear cholesteatoma arose in service. 2. Depression and memory loss are not related to Camp Lejeune contaminated water exposure and are not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic otitis media and associated right ear cholesteatoma are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for depression and memory loss, to include as due to Camp Lejeune contaminated water exposure, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to October 1976, including service at Camp Lejeune from February 1974 to December 1974. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In June 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. The Board denied the issues on appeal in an August 2018 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in a March 2020 memorandum decision. In compliance with this decision, the Board remanded the issues in August 2020 with instruction to obtain current treatment records and adequate VA medical opinions. The appropriate records were obtained, and VA medical opinions were obtained in October 2020 and February 2021. Based on these opinions, service connection for a third remanded issue, a tonsil and adenoid disability, was awarded in a February 2021 rating decision. This constitutes a full grant, and the issue is therefore no longer before the Board. The Board is therefore satisfied that the instructions in its August 2020remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in March 2021 the Veteran’s representative submitted a request for higher level review under the appeals modernization act (AMA) or modernized system. The agency of original jurisdiction (AOJ) denied this request in March 2021 correspondence based on a finding that the Veteran had not withdrawn his appeals from the legacy system. As neither the Veteran nor his representative has appealed this determination, the Board has no jurisdiction to review it and will therefore proceed to adjudicate his claims under the legacy system. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain diseases, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following exposure to contaminants present in the water supply at Camp Lejeune. Service at Camp Lejeune means no less than 30 days of service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. §§ 3.307, 3.309(f). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for right ear cholesteatoma, to include as due to Camp Lejeune contaminated water exposure The Veteran claims service connection for right ear cholesteatoma, to include as due to Camp Lejeune contaminated water exposure. Service treatment records reflect that in August 1974 the Veteran reported ear problems. Examination was normal and he was advised to get ear while swimming. August 1976 he was diagnosed with bilateral otitis media. No such abnormality was noted at his October 1976 separation examination. Private treatment records reflect that in March 2000 the Veteran reported a history of right tympanic membrane perforation with a history of recurrent otitis media for greater than 20 years. He had a tympanostomy tube placed on the right and based on physical examination was diagnosed with right primary acquired cholesteatoma. In April 2000 he underwent a right tympanoplasty with mastoidectomy. In a prior August 2007 claim, the Veteran stated that a tumor behind his right ear began in service in 1974. VA treatment records reflect that in August 2009 the Veteran reported a history of right ear disease with reconstructive surgery secondary to cholesteatoma about 10 years prior. In a July 2012 statement, the Veteran reported that his right ear tumor was the result of exposure to contaminated water at Camp Lejeune. A VA medical opinion was obtained in August 2013. The examiner diagnosed cholesteatoma, status post tympanoplasty with mastoidectomy to remove right ear mass in 2000. The examiner opined that a cholesteatoma was less likely than not related to exposure to contaminated water at Camp Lejeune. This opinion was based on the rationale that there was no evidence in the scientific literature suggesting potential relationships between exposure to the Camp Lejeune contaminants and cholesteatoma. Furthermore, given the comparatively low dose and short duration of the Veteran’s exposure, the disability was more likely the result of his risk factors, specifically a history of middle ear infections and eustachian tube dysfunction. VA treatment records reflect that in December 2014 the Veteran reported a fluid feeling and drainage in his right ear that had worsened over the prior couple of months. Otoscopy showed exudate deep in the canal. At a March 2015 otolaryngology consultation, he reported that his hearing in the right ear began to improve after a recent private sinus surgery. Examination of the right ear showed a large cartilage graft located posteriorly and superiorly. In May 2015 he reported that his ear problems began when he was exposed to contaminated water at Camp Lejeune. He was diagnosed with otitis media with effusion in the right ear. He underwent a myringotomy. In August 2015 he underwent another myringotomy with implantation of a pressure equalizer tube. In December 2015 his symptoms had resolved. At his June 2017 hearing, the Veteran reported that in service while stationed at Camp Lejeune he experienced infections of his ears, nose, and throat. He reported mucus behind his eardrums and sinuses. He reported chronic ear infections since separation. He stated that he was told by his doctors that his cholesteatoma was related to these infections. VA treatment records reflect that in February 2018 the Veteran reported hearing difficulty, worse on the right, and that his head felt “plugged up.” His audiologist noted that his tympanometry was consistent with possible right middle ear pathology, type B. In April 2018 his otolaryngologist diagnosed right middle ear effusion with a history of cholesteatoma, though no signs of cholesteatoma at present. He had another pressure equalization tube implanted. Another effusion was noted in October 2018. His pressure equalization tube was replaced in November 2018. Private treatment records reflect treatment from August 2018 to September 2020 for the Veteran’s chronic right ear condition. The records do not reference any history prior to 2001 or any other potential link to service. In a February 2021 medical opinion based on a review of the record, a VA examiner opined that right ear cholesteatoma was less likely than not related to service. This opinion was based on the rationale that the Veteran had a single episode of bilateral otitis media diagnosed and treated in August 1976. The examiner explained that this episode was acute and self-limited, as shown by his separation examination in October 1976. The examiner further explained that while chronic perforation and chronic otitis media are associated with the development of cholesteatoma, there was no tympanic membrane perforation in 1976, and it was unlikely that the condition arising in 1976 played a role in the development of cholesteatoma more than 20 years later. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s chronic otitis media and associated right ear cholesteatoma arose in service. While the Veteran claims that his cholesteatoma was the result of his exposure to contaminated water in Camp Lejeune, he has provided no basis for this belief and there is no competent evidence in the record to support it. Nevertheless, the February 2021 VA examiner’s opinion noted that the development of his claimed cholesteatoma would be associated with chronic otitis media. The examiner found that the record did not support chronic otitis media arising in service, basing this opinion on a single instance in August 1976 that was not noted at his October 1976 separation examination. The Veteran’s reports of chronic otitis media since separation are more probative than the examiner’s opinion. His reports are consistent, as he reported a longer than 20-year history of recurrent otitis media at the time of his original surgery in 2000, more than seven years before he sought compensation. If this condition began in August 1976, it stands to reason that its status as a chronic condition would not yet have been established by October 1976. The VA examiner, on the other hand, did not explain how one would differentiate between an acute episode and the onset of chronic recurrent infections when the episode happened a mere two months prior to separation. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s chronic otitis media and associated right ear cholesteatoma arose in service, and service connection is therefore granted. 2. Entitlement to service connection for depression and memory loss, to include as due to Camp Lejeune contaminated water exposure The Veteran claims service connection for depression and memory loss as due to Camp Lejeune contaminated water exposure. Service treatment records do not reflect any symptoms of or treatment for any mental health disability while in service. No such abnormality was noted at the Veteran’s October 1976 separation examination. VA treatment records reflect that in March 2011 the Veteran reported suicidal ideation related to posttraumatic stress disorder (PTSD). On evaluation he was noted to have depressive symptoms and sleep disturbances with possible PTSD symptoms related to a childhood trauma and an isolated noncombat military incident. Specifically, he stated that in 1976 he was responsible for dressing the body of a fellow Marine who was killed in a civilian car accident. He stated that townspeople, angry because the accident resulted in the death of the child of the marine’s married lover, pressed in on the Veteran and a sergeant until they feared for their lives. No one was physically harmed. He reported flashbacks and nightmares related to this incident. He was diagnosed with depression disorder, rule out PTSD. In January 2012, he reported a sense of hopelessness sometimes to his primary care nurse practitioner. He declined treatment but requested counseling. He was diagnosed with depression. At a March 2012 neurology consultation, he reported progressive impairment of memory for about 30 years. He described developing impaired short-term memory in the early 1980s. He reported that it became much worse in the 1990s. His neurologist diagnosed dementia of unknown etiology. The neurologist noted his exposure to Camp Lejeune contaminated water and its known association with solvent encephalopathy. He was also exposed to organic solvents. In April 2012 he was diagnosed with recurrent moderate major depressive disorder. No relationship to service was discussed. In his July 2012 claim, the Veteran stated that his depression and memory loss were due to contaminated water exposure at Camp Lejeune. VA treatment records reflect that in August 2012 the Veteran underwent neuropsychological testing. He reported that his memory problems began when he was stationed at Camp Lejeune. His performance on the tests was intact across many areas of functioning including verbal, learning and memory, mental flexibility, abstract reasoning, and structured visual-spatial construction. Relatively mild, isolated deficits were noted with complex attention and fine motor speed, visual memory, naming, and verbal fluency. His pattern of performance was not consistent with dementia but showed a pattern relatively consistent with the very early stages of vascular-related cognitive decline. In May 2013 he was diagnosed with mild cognitive impairment, etiology most likely cerebral microvascular disease. His neurologist noted a history of high blood pressure and hypercholesterolemia, possible glucose intolerance, and tobacco use. Later in the month he reported anxiety and was diagnosed with recurrent moderate major depressive disorder. In August 2013 he was diagnosed with mild major depressive disorder. A VA medical opinion was obtained in August 2013. The examiner diagnosed depression and mild cognitive impairment. The examiner opined that depression and memory loss were less likely than not related to exposure to contaminated water at Camp Lejeune. This opinion was based on the rationale that, given the comparatively low dose and short duration of the Veteran’s exposure, the disability was more likely the result of his risk factors, specifically diabetes, tobacco use, hypercholesterolemia, obesity, genetics, childhood trauma, and back pain. VA treatment records reflect that in December 2013 the Veteran’s neurologist noted that his carotid doppler was normal. His diagnosis remained mild cognitive impairment, etiology most likely cerebral microvascular disease. A January 2014 MRI showed mild small vessel ischemic changes in the periventricular regions. In March 2014 he reported anxiety and depression over the prior two years. He described anger and resentment at VA and the military regarding the water contamination at Camp Lejeune. He stated that his anger seemed to consume him to the point that he cannot enjoy life. He continued receiving therapy through December 2014. In an October 2014 telephone call, he reported to his psychologist that he had distressing military memories, specifically water contamination at Camp Lejeune and “chores” he was required to do prior to his discharge. At a December 2014 neurology consultation, his neurologist noted that MRIs showed no signs of brain atrophy. His neurologist opined that his short-term memory loss was due to exposure to organic solvents at Camp Lejeune. He also reported being exposed to a radioactive waste site with strontium-90. In June 2015 he underwent a mental health evaluation. He was noted to have symptoms consistent with anxiety with reports of suspicion. He was given rule-out diagnoses of paranoid personality disorder, unspecified anxiety disorder, and social anxiety disorder. In September 2015 he underwent a cognitive evaluation. He reported gradually worsening memory issues for several years. He was diagnosed with short-term memory deficits. Continued deficits were noted in December 2015. His neurologist again diagnosed memory impairment, most likely from exposure to organic solvents in service. In February 2016, he began individual psychotherapy again. He discussed symptoms of depression and ongoing stressors, mostly surrounding his service connection claim. He discontinued therapy in March 2016. In July 2016, he reported ongoing symptoms of anxiety and depression, which he attributes to the water contamination at Camp Lejeune and subsequent issues with VA service connection claims. He discontinued therapy again in August 2016. In January 2017 his neurologist was inclined to give a diagnosis of dementia from an unspecified cause but noted that he may be showing symptoms of solvent encephalopathy. In February 2017 the neurologist noted that if his neuropsychologist found dementia or any other cognitive function problems, it can be reasonably connected to Camp Lejeune contaminated water, as he had no other history which could cause impaired memory, such as brain tumors, stroke, alcohol abuse, medication, or other treatable cause of dementia. VA treatment records further reflect that the Veteran underwent neuropsychological evaluation in February 2017. He failed performance validity indicators on cognitive measures, and his reported symptoms were inconsistent with his functional abilities. As such, the results were considered invalid, and no conclusions were made about his cognitive functioning. The report further stated that, though speculative due to invalid testing results, his current experience of cognitive inefficiencies could be clarified by review of his records. Specifically, his toxin exposure at Camp Lejeune is a less-likely cause for his current symptoms given his history and the time frame of the symptoms and exposure. The report noted that his current symptoms may be exacerbated by his inconsistently managed sleep apnea, his mild depressive symptoms, and his reported history of anxiety and distractibility. The report stated that as his 2012 evaluation was more consistent with very early vascular cognitive impairment, which was also consistent with his and his wife’s reports of a slow and gradual decline in cognitive abilities. The report thus stated that the most plausible explanation for his symptoms was the early stages of vascular-related cognitive inefficiencies, though additional contribution from his anxiety surrounding his health status should also be considered. He was diagnosed with moderate somatic symptom disorder. At his June 2017 hearing, the Veteran cited the opinion of his VA treating neurologist that his memory loss was secondary to exposure to contaminated water at Camp Lejeune. VA treatment records reflect that in June 2017, the Veteran’s treating neurologist stated that toxins in Camp Lejeune, which are organic solvents, could have contributed to his mild dementia because organic solvents are fat soluble and the brain is full of fat. In July 2017, the neurologist elaborated on the opinion that his memory loss was the result of his exposure to contaminated water at Camp Lejeune. The neurologist cited multiple journal articles to support this opinion. Private treatment records reflect that in September 2020 the Veteran reported experiencing memory problems and anxiety for about 10 years. He reported his exposure to contaminated water while serving at Camp Lejeune. He was diagnosed with recurrent moderate major depressive disorder and treated through November 2020. In an October 2020 medical opinion based on a review of the record, a VA examiner opined that cognitive loss and depression were less likely than not related to exposure to contaminated water at Camp Lejeune. This opinion was based on the rationale that general medical literature did not include studies documenting depression or cognitive disorder as a sequelae of Camp Lejeune contaminated water exposure. The examiner noted that the Veteran had other risk factors, including obesity, diabetes, and stressful life events. The Board finds that the evidence weighs against a finding that the Veteran’s depression and memory loss are related to his exposure to contaminated water at Camp Lejeune or are otherwise related to service. The Veteran was given a rule-out diagnosis of PTSD in March 2011, prior to submitting his July 2012 claim. He described stressors that occurred in service at that time. His July 2012 claim, however, was based entirely on exposure to contaminated water at Camp Lejeune. Aside from a one-time vague reference to “chores” he performed prior to separation from service, he did not describe any other incidents in service, and treatment records since March 2011 focus on his current life, not incidents in military service aside from his exposure to contaminated water. As such, the Board finds that the Veteran does not have a current disability of PTSD or any other psychiatric disability related to in-service stressors. The Board further finds that the evidence weighs against a finding that symptoms related to depression or memory loss arose in service. There is no evidence of any such symptoms in the Veteran’s service treatment records. His reports of onset have been inconsistent, variously stating that memory loss began in the early 1980s or in 2010. His reports of depression onset are more consistent but are no earlier than 2010. In any event, the evidence does not establish onset of symptoms in service. The Board finds that the evidence weighs against a finding of relationship to Camp Lejeune water contaminants. Neither depression nor memory loss is among the disabilities for which VA recognizes a presumptive relationship to Camp Lejeune contaminants. See 38 C.F.R. § 3.309(f). As such, service connection on a presumptive basis is not available. There is no medically competent evidence in the record that exposure to Camp Lejeune contaminants could be linked to symptoms of depression. One of the Veteran’s treating neurologists, however, has linked his memory loss to the solvents in Camp Lejeune water. The neurologist cited numerous studies to support the opinion that such a relationship was likely. The neurologist, however, did not explain the apparent disagreement with the February 2017 neuropsychological evaluation report. That report concluded that the most plausible explanation for his symptoms was the early stages of vascular-related cognitive inefficiencies, though additional contribution from his anxiety surrounding his health status should also be considered. The report further found that toxin exposure at Camp Lejeune is a less-likely cause for the Veteran’s memory loss symptoms given his history and the time frame of the symptoms and exposure. The February 2017 report is the more probative evidence, as it discusses the specifics of the Veteran’s situation, compared to the neurologist’s conceptual leap from possible to probable. Furthermore, the February 2017 report is consistent with the multiple VA examiners who opined that such a relationship was less likely than not. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s depression and memory loss are related to his exposure to contaminated water at Camp Lejeune or are otherwise related to service. Service connection is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.