Citation Nr: 21026769 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-24 207 DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for neurological disorder, to include memory loss, (memory loss) as due to exposure to contaminated water at Camp Lejeune is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. The Veteran's memory loss did not manifest in-service and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for memory loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1981 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 (bilateral hearing loss) and August 2015 (memory loss) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a Board hearing. The transcript of the hearing is of record. By way of background, in September 2018, the Board granted the Veteran's claim for entitlement to service connection for tinnitus and remanded the issues on appeal for further evidentiary development. That development having been met the claim is again before the Board. The Board observes that additional VA treatment records were received following the last adjudication by the RO in the August 2020 supplemental statement of the case. The Board has reviewed these records and observes that they are cumulative, duplicative, and/or not pertinent to the issues on appeal addressed in the decision below. Additionally, the Board notes that in April 2021 the representative waived initial RO consideration of the evidence. See April 2021 Third Party Correspondence. Service Connection Generally, to establish service connection a veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral hearing loss, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Sensorineural hearing loss is considered an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply to the claim for hearing loss. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. At the outset, the Board notes that in the January 2015 VA examination the Veteran was diagnosed with bilateral hearing loss. See January 2015 C&P Exam. As such, the first element of service connection is met. As for the second element, the Board concedes that the Veteran was exposed to some degree of noise during service. A review of the records shows that the Veteran received an M-16 Rifle Marksman Badge and was a Field Artillery Battery Man. See October 1985 Certificate of Release or Discharge from Active Duty. As such, the Board finds that the second element of service connection has been met. What remains for consideration is whether the current bilateral hearing loss is related to his in-service noise exposure. A review of the service treatment records (STRs) notes normal ears and drums in the April 1981 entrance examination and July 1984 separation examination. See October 2014 STR - Medical. The Board notes that there are audiometric data in April 1981, January 1982, January 1983, April 1983, and July 1984 STRs. The records show that in the three years of service the Veteran's hearing acuity fluctuated. See October 2014 STR Medical. However, there is no diagnosis of hearing loss in the STRs. As reflected below, hearing loss was not shown on the July 1984 separation audiometric findings. 500 1000 2000 3000 4000 right 5 0 10 5 15 left 5 5 0 10 10 Post-service treatment records show that the Veteran reported post service occupational noise exposure working in security and tree services around tool and/or equipment noise. See March 2015 Medical Treatment Record Government Facility. The Veteran also reported noise exposure from hunting. See March 2015 Medical Treatment Record Government Facility. The January 2015 VA audiologist opined that it is less likely than not that the Veteran's bilateral hearing loss is a result of events during service. The examiner explained that there was no positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz (Hz). The examiner explained that the STRs documented normal hearing on the enlistment physical and normal hearing on the separation examination. While the enlistment physical does not have thresholds for 3000 and 6000 Hz, a reference audiogram of the same date has those thresholds. No significant threshold shifts occurred while in the military service. A significant threshold shift is defined as a worsening between the first and second audiometric test of 15 dB hearing loss or more at, at least, one tested frequency. Therefore, it is less likely as not that the current hearing loss was caused by or related to military noise exposure. The Board affords great probative value to the January 2015 VA examiner's assessment as it is well supported by, and is consistent with, the most probative evidence of record. The most probative evidence of record reflects that although the Veteran was exposed to noise in service, there was no significant threshold shift that showed worsening of the Veteran's hearing. As such, the Board affords great probative value to the January 2015 VA examiner's medical opinion. The Board notes that the Veteran submitted a medical opinion regarding tinnitus but not bilateral hearing loss. The Veteran also submitted the first page of a medical article titled "Hearing Conservation in the US: A Historical Perspective." See September 2018 Correspondence. The Board affords low probative value to the medical article for numerous reasons. First, the article associated with the file is incomplete and only has the first page. Second, it contains no findings as to hearing loss. Instead, it posed a question as to how effective regulations have been in preventing hearing loss in the workplace. No answer was provided. Third, there is no findings that addresses or assists the Veteran's claim. Based on the foregoing, the Board affords low probative value to the medical article. The Board notes that the Veteran argued that he had some degree of hearing loss in service as confirmed by the April 1981 hearing test, January 1982 hearing test, and January 1983 hearing test. See April 2021 Third Party Correspondence. As stated above, the Board notes that the Veteran's hearing fluctuated throughout his three years in service. However, comparing the Veteran's audiometric readings in the April 1981 examination and July 1984 examination, the examiner specifically found that there was no significant threshold shift of 15 dB, and therefore concluded that it was less likely as not that his hearing loss was related to military noise exposure. As such, the Board finds that a new examination is not warranted to evaluate the significance of the Veteran's in-service hearing tests as there is an opinion of record that has adequately addressed whether any in-service noise exposure is related to his current hearing loss. As for presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran's bilateral hearing loss manifested to a compensable level in the first post-service year. 38 C.F.R. § 3.309(a). Based on the records, the Veteran's complaint of bilateral hearing loss was first documented in 2015, more than 30 years after his service. As there is no evidence of manifestation within the first post-service year to a degree of 10 percent, service connection for bilateral hearing loss based on the presumption in favor of chronic disease is not warranted in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The Board notes that during the July 2018 hearing, the Veteran attested that while training in 29 Palms in the middle of a fire mission he was standing beside the muzzle blast on the tube of the Howitzer. The Veteran stated that he was knocked down by the muzzle blast and ever since that incident he had bilateral tinnitus and hearing loss. Although the Veteran is competent to attest to subjective decreases in hearing acuity, he is not competent to diagnosis hearing loss for VA purposes, or to state when/if his hearing loss manifested to a degree of 10 percent within the first post-service year. The Board observes that even in January 2015, the Veteran's audiometric readings did not meet the criteria for a 10 percent rating. 38 C.F.R. § 4.85. As stated above, the Veteran's service treatment records show normal ears and drums in service, and his post-service records show no hearing loss until 2015, about 30 years after service. Further, the Board finds the January 2015 VA examiner's conclusion persuasive and probative that the Veteran's bilateral hearing loss is less likely than not caused by or a result of his military noise exposure. The opinion is based on a review of the Veteran's service treatment records and is supported by a rationale and clinical expertise. Thus, the Board finds there is no competent evidence of record to provide a nexus between the Veteran's bilateral hearing loss and service. 2. Entitlement to service connection for memory loss is denied. The Veteran argued that he developed memory loss as a result of being exposed to contaminated water at Camp Lejeune, North Carolina. His service personnel records confirm that the Veteran was stationed in Camp Lejeune for more than 30 days. Specifically, the Veteran was stationed in Camp Lejeune from January 1982 to September 1984. See April 2014 Military Personnel Record. As such, the Veteran's exposure to contaminated water at Camp Lejeune is conceded. In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran 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). These enumerated diseases are 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)(1)-(8). In this case, the Veteran cannot prevail under the theory of presumptive service connection as memory loss is not a recognized enumerated disease under 38 C.F.R. § 3.309(f). The Board finds that in the December 2019 VA examination the Veteran was diagnosed with memory loss. See January 2017 CAPRI. As such, the first element of service connection is met. As for the second element, a review of the service treatment records shows no signs, symptoms, or diagnosis of memory loss. In fact, the April 1981 entrance examination and July 1984 separation examination showed normal head with no notes of memory loss. See October 2014 STR Medical. Accordingly, there is no showing of memory problems during service. A review of the post-service treatment records shows April/May 2015 VA neurological/psychological testing results reflecting moderately impaired to borderline verbal learning; mildly impaired delayed memory. A March 2017 private neurology report reflects that the Veteran reported that his memory problems began at least four years ago. In May 2017, he reported experiencing the gradual onset of progressive memory decline 10 to 15 years ago. The Veteran's wife reported the onset of progressive memory problems two to three years ago. Following extensive neuropsychological and neurobehavioral evaluation, testing was suggestive of a fronto-subcortical pattern of cognitive dysfunction and raised concern of possible cognitive disorder. However, there were several potentially modifiable factors (severe depression, anxiety, insomnia, possible medication side-effects) that likely contributed, at least in part, to his cognitive difficulties. It was noted that with treatment/improvement of these factors, the Veteran will likely experience at least partial improvements in cognition. The Veteran was afforded VA examinations in November 2019 and December 2019 with addendum opinions in June 2020 and July 2020. In the November 2019 VA examination, the examiner opined that the Veteran's claimed condition of memory loss is less likely as not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The examiner explained that the National Academy of Sciences, National Research Council published its 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 Tetrachloroethylene or Perchloroethylene (PCE) as well as a mixture of the two. Fourteen disease condition were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. ATSDR data does not support an association between the potential contaminants in Camp Lejeune contaminated water (CLCW) and the development of depression, memory loss or other cognitive impairments. The examiner noted that an extensive neuropsychological/neurobehavioral evaluation done in May 2017 summarized that overall testing revealed more of a fronto-subcortical pattern of cognitive dysfunction and raises concern of possible cognitive disorder. However, there were several potentially modifiable factors that likely contributed, at least in part, to the Veteran's cognitive difficulties, such as depression, anxiety, insomnia, sleep apnea, and vitamin B12 deficiency. The examiner also explained that the Veteran's potential exposure at Camp Lejeune dates back to 1981 to 1984 and his diagnosis of memory loss is stated to have been made sometime between 2002 to 2007. The evidence does not show an event, disease or injury in service related to memory loss. Service treatment records do not contain complaints, treatment, or diagnosis for this condition. Neurobehavioral effects related to the contaminants at Camp Lejeune are due to acute toxic exposures. Common presenting neurobehavioral symptoms include acute loss of consciousness, reduction in cognitive function (i.e., slowed thinking), memory loss, irritability, dizziness, headaches, and loss of fine motor function. These are considered acute effects and occur at high levels of inhalational exposure. Individuals who display neurobehavioral effects of exposure to solvents do not exhibit chronic effects unless they have had acute effects of exposure. There is no known delayed onset of neurobehavioral symptoms. Although current medical records show a diagnosis of loss of memory, the evidence does not show that neurobehavioral effects to include memory loss and speech/reading issues manifested in service. The period of time that lapsed after the Veteran left Camp Lejeune in 1984 to the time of memory loss complaints sometime between 2002 to 2007 make a relationship between the memory loss complaints and exposure to CLCW unlikely. If his exposure to contaminated water at Camp Lejeune had been significant, memory loss should have formed at an earlier juncture in the Veteran's life, rather than 18-23 years post potential exposure. Finally, his neuropsychiatric testing did not support a relationship between memory loss and potential exposure to CLCW exposure. In the December 2019 VA examination, the examiner, a physician's assistant, opined that the Veteran's condition is at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that a review of the Veteran's record showed that the Veteran served at Camp Lejeune and "has neurobehavioral condition as one of the conditions resulting from resulting from Veteran's exposed to contaminated water while at there from August 1953 to December 1987. Therefore, it is at least as likely as not that the Veteran's memory loss is related to military time during service." However, in another December 2019 VA examination, a psychologist opined that the Veteran's claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The diagnosis was mild neurocognitive disorder is due to mild memory loss. The VA psychologist explained that the April 2015 and March 2017 neuropsychological testing found that the Veteran's depression and anxiety can cause memory problems. The Veteran's depression and anxiety began in 1995 (approximately 10 years after he left the military) when he was diagnosed with diabetes. Therefore, the Veteran's claimed condition is less likely than not caused by service. In the June 2020 VA addendum opinion, the examiner opined that the Veteran's neurobehavioral effects/memory loss is less likely as not caused by or as a result of the Veteran's exposure to contaminated water in Camp Lejeune. The examiner explained that when assessing causation, one must look at personal risk factors for a condition as well as external risk factors, in this case exposure related factors at Camp Lejeune. At the same time, one must look at the strength of those factors in causing or contributing to the disease in question. Here, the Veteran complained of memory problems. In the Review of VA Clinical Guidance for the Health conditions Identified by the Camp Lejeune Legislation (2015), it was determined that for this condition to be considered, it should have been present while at Camp Lejeune and continued to the present. However, in this case, the Veteran's memory loss became apparent long after his time at Camp Lejeune. Specifically, in 2017 the Veteran stated the onset of his memory loss became noticeable 10 to 15 years prior, even though his wife stated two to three years was her estimate. He was last at Camp Lejeune in 1984. Fifteen years before 2017 would be 2002, therefore he feels his memory decline started almost 20 years after his exposure to contaminated water in Camp Lejeune. This does not fit the requirements that his memory loss could be attributable to exposure at Camp Lejeune. Therefore, it is the examiner's opinion that the Veteran's neurobehavioral effects/memory loss is less likely as not caused by or related to his exposure to contaminated water in Camp Lejeune. In the July 2020 VA addendum opinion, the December 2019 VA examiner, the physician's assistant who offered the above opinion, agreed with the December 2019 psychologist's medical assessment that memory loss was less likely than not related to service. The physician's assistant stated "I'll agree with [December 2019 psychologist] as memory loss and neuropsychological issues are the psychologist's specialty." In support of his claim, the Veteran submitted two medical opinions. In September 2018, a physician opined that the Veteran's current chronic cognitive dysfunction is at least likely as not related to contaminated water exposure at Camp Lejeune from 1981 through 1984. See September 2018 Medical Treatment Record Non-Government Facility. The physician explained that the Veteran has a current diagnosis of cognitive dysfunction, he was stationed in Camp Lejeune, and had continuity of symptoms from service to the present. In June 2020, a licensed professional mental health counselor opined that the Veteran's symptoms of memory loss stems from his time at Camp Lejeune. See August 2020 Medical Treatment Record Government Facility. The Board affords great probative value to the November 2019 VA examiner, December 2019 VA examiner (psychologist), and June 2020 VA examiners' assessments. The VA examiners addressed the Veteran's contentions and the impact of contaminated water in Camp Lejeune but determined that the Veteran's memory loss is likely caused by non-service related factors. Moreover, studies have shown that there is no known delayed onset of neurobehavioral symptoms after exposure. Here, the Veteran was last in Camp Lejeune in 1984 and his memory loss started around 2002, which is more than 15 years after his exposure to contaminated water in Camp Lejeune. As the VA examiners' medical opinions are based on the examiners' medical knowledge, training, and experience, and as the examiners considered the Veteran's contentions, the Board affords great probative value to their assessments. On the contrary, the Board affords little probative value to the September 2018 and June 2020 medical opinions as both medical opinions lacked any substantive rationale in support of their opinion. The Board also affords little probative value to the December 2019 VA physician's assistant opinion, as it too was not supported by a sufficient rationale. Moreover, in July 2020, the physician's assistant later clarified his opinion and stated that the December 2019 psychologist's opinion should be afforded more probative weight as the psychologist specialized in memory loss/neuropsychological issues. With regard to the September 2018 opinion's suggestion that the Veteran had memory loss symptoms since service, this is contradicted by the more probative evidence of record. During his 2017 evaluation for his memory loss, when he was motivated to be forthcoming to get an accurate diagnosis and follow-up care, the Veteran reported that the onset of his memory loss became noticeable 10 to 15 years prior, even though his wife stated two to three years was her estimate. This places the onset of his memory loss in 2002, at the earliest, which is 18 years after his separation from service. As such, the September 2018 opinion is based on an inaccurate factual premise, as there is no competent and credible evidence of continuity of memory problems since service. The Board recognizes the Veteran's lay statements linking his current memory loss to service. The Veteran is competent to report purported symptoms such as memory loss. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question of whether the Veteran's memory loss was caused by the contaminated water in Camp Lejeune is a medical question that requires medical expertise, which he is not shown to have. In conclusion, the preponderance of the evidence establishes that his memory loss was not manifested during service or for many years thereafter and is not otherwise related to his active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, the claim is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.