Citation Nr: 21027090 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-45 873 DATE: May 4, 2021 ORDER Service connection for sleep apnea, to include as due to contaminated water at Camp Lejeune is denied. Service connection for coronary artery disease (CAD), to include as due to contaminated water at Camp Lejeune is denied. Service connection for a thyroid condition, to include as due to contaminated water at Camp Lejeune is denied. Service connection for diabetes mellitus, to include as due to contaminated water at Camp Lejeune is denied. Service connection ventricular arrhythmias, to include as due to contaminated water at Camp Lejeune is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea did not have its onset in service and is not otherwise etiologically related to his service, to include as due to his exposure to contaminated water at Camp Lejeune. 2. The Veteran's CAD did not manifest during active duty service or within the first year following separation from service and it is not otherwise etiologically related to his service, to include as due to his exposure to contaminated water at Camp Lejeune. 3. The Veteran's thyroid condition did not manifest during active duty service or within the first year following separation from service and it is not otherwise etiologically related to his service, to include as due to his exposure to contaminated water at Camp Lejeune. 4. The Veteran's diabetes mellitus did not manifest during active duty service or within the first year following separation from service and it is not otherwise etiologically related to his service, to include as due to his exposure to contaminated water at Camp Lejeune. 5. The Veteran's ventricular arrhythmias did not manifest during active duty service or within the first year following separation and it is not otherwise etiologically related to his service, to include as due to his exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, to include as due to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1710, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(f). 2. The criteria for service connection for CAD, to include as due to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1710, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(f). 3. The criteria for service connection for a thyroid condition, to include as due to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1710, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(f). 4. The criteria for service connection for diabetes mellitus, to include as due to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1710, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(f). 5. The criteria for service connection ventricular arrhythmias, to include as due to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1710, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to September 1981 and from November 1981 to November 1983. In August 2019, a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In a decision issued in November 2019, the Board denied entitlement to service connection for sleep apnea, CAD, a thyroid condition, diabetes mellitus, and ventricular arrhythmia. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an Order that vacated the Board's November 2019 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in a July 2020 Joint Motion for Remand (JMR) by the parties. In the July 2020 JMR, it was noted that, during the August 2019 Board hearing, the Veteran had indicated he sought private treatment for the claimed conditions prior to receiving treatment from VA. Accordingly, in January 2021, the Board remanded the current claims for additional development to attempt to obtain the Veteran's private treatment records. In January 2021, the Regional Office (RO) requested information from the Veteran regarding his private treatment records. The Veteran responded and authorized the release of medical records for two private treatment providers, Drs. A.F. and E.G. The RO requested and received records from Dr. A.F. The RO also requested records from Dr. E.G., however, such records were determined to be unavailable. This determination was based on the RO's multiple attempts to obtain these private treatment records. Specifically, in February 2021, the RO made two requests for these records, called the medical facility, sent an email request to the medical facility, and sent two faxes. The RO also encouraged the Veteran to send any information or evidence and, if the Veteran did not respond, a decision on the claim may be made after 15 days. Based on the foregoing, the Board finds that reasonable efforts were made to attempt to obtain the Veteran's private treatment records and there has been substantial compliance with the Board's remand. See 38 C.F.R. § 3.159; see also Stegall v. West, 11 Vet. App. 268 (1998). The Board emphasizes that the July 2020 JMR was based primarily on private treatment record development. As such development has been conducted and the additional private treatment records do not establish a nexus, the Board will adopt its previous determination, that concluded no nexus exists between the Veteran's sleep apnea, CAD, thyroid condition, diabetes mellitus, and ventricular arrhythmias and his active duty service, to include contaminated water at Camp Lejeune. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For chronic diseases, service connection may be established if there was manifestation during and after service absent an intercurrent cause. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology after service is required if the disease was noted but not chronic or chronicity was questionable during service. Id.; Savage v. Gober, 10 Vet. App. 488 (1997). A rebuttable presumption of service connection exists for chronic diseases when a veteran served for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within the first year after service. 38 U.S.C. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for sleep apnea, CAD, thyroid condition, diabetes mellitus, and ventricular arrhythmias. The Veteran seeks service connection for sleep apnea, CAD, thyroid condition, diabetes mellitus, and ventricular arrhythmias and specifically contends that these disorders are related to his exposure to contaminated water at Camp Lejeune. The Veteran's service treatment records (STRs), to include his November 1983 separation examination, are silent for any complaints of or treatment for sleep apnea, CAD, a thyroid condition, diabetes mellitus, or ventricular arrythmias. The Veteran has also reported that he was not diagnosed with sleep apnea, CAD, a thyroid condition, and ventricular arrhythmias until January 2003 and diabetes mellitus until January 2011. Consequently, service connection for sleep apnea, CAD, thyroid condition, diabetes mellitus, and ventricular arrhythmias on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, neither the Veteran nor his representative has contended (nor have they submitted competent evidence to show) that he has suffered from these disorders continuously since service or that these disorders manifested within the first year following separation from service. See 38 C.F.R. § 3.303(b). In fact, at the August 2019 Board hearing, the Veteran clarified that it was not his contention that the claimed disabilities had their onset in service. Rather, as noted above, it was his contention that these disabilities, which had their onset after service, were associated with in-service exposure to contaminated water at Camp Lejeune. As explained below, however, service connection based on exposure to contaminated water at Camp Lejeune is not established. To establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a claimant 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). The record reflects that the Veteran had service at Camp Lejeune during the applicable time period when veterans are presumed to have been to contaminants in the water supply. Accordingly, the Veteran is presumed to have been exposed to contaminated water at Camp Lejeune. The next question for the Board, then, is whether the Veteran's claimed conditions, including sleep apnea, CAD, a thyroid condition, diabetes mellitus, and ventricular arrythmias are related to that contaminated water. Under 38 C.F.R. § 3.309(f), the following diseases are presumed to be associated with exposure to contaminants in the water supply at Camp Lejeune and will be service-connected even though there is no record of such disease during service (subject to the rebuttable presumption provisions of38C.F.R. §3.307(d)): kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. The Veteran's claimed conditions are not among the listed diseases presumed related to contaminated water exposure at Camp Lejeune. While the Veteran is not precluded from establishing entitlement to service connection on a direct incurrence or other basis, aside from his bare assertions that these disorders are associated with in-service exposure to contaminated water at Camp Lejeune, there is no competent evidence establishing or even indicating that an etiological connection exists between the Veteran's diagnoses of sleep apnea, CAD, a thyroid condition, diabetes mellitus, and ventricular arrythmias and his in-service exposure to contaminated water at Camp Lejeune. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Board emphasizes that, at the August 2019 Board hearing, the Veteran testified that none of his treating physicians had indicated to him that these disabilities were related to his in-service exposure to contaminated water. Despite this, it was explained to the Veteran the type of evidence that was needed to substantiate his claim, such as an opinion from a medical professional, and the record was held open 30 days to provide him an opportunity to submit additional evidence. Following the hearing, the Veteran did not submit any additional evidence. It is acknowledged that, generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may also speak to etiology in some limited circumstances in which nexus is obvious merely through observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, a lay person, such as the Veteran, is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. As such, the Veteran's lay statements relating his claimed disabilities to contaminated water exposure at Camp Lejeune are not competent regarding the etiology of his sleep apnea, CAD, a thyroid condition, diabetes mellitus, and ventricular arrythmias. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). During the August 2019 Board hearing, the Veteran's representative requested that the Veteran's claim be remanded for further development to determine whether his claimed disabilities were related to his exposure to contaminated water at Camp Lejeune. However, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters, 601 F.3d at 1274. Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81(2006). As noted above, apart from the Veteran's unsubstantiated statements, there is no indication that a nexus exists between the Veteran's sleep apnea, CAD, a thyroid condition, diabetes mellitus, and ventricular arrythmias and his service, to include exposure to contaminated water at Camp Lejeune. As such, this standard has not been met in this case. In sum, the Board finds that the preponderance of the evidence is against the claim. The presumptions enumerated under 38 C.F.R. § 3.309(f) do not apply to the Veteran's sleep apnea, CAD, thyroid condition, diabetes mellitus, and ventricular arrythmias, and there is no other competent evidence linking the Veteran's claimed conditions to his military service. The benefit of the doubt doctrine is not for application in this case. Accordingly, the Veteran's claims for service connection for sleep apnea, CAD, thyroid condition, diabetes mellitus, and ventricular arrythmias are denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.