Citation Nr: 21031056 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-33 977 DATE: May 20, 2021 ORDER Entitlement to service connection for infertility as a result of contaminated water supply at Camp LeJeune is denied. Entitlement to total disability rating for compensation based on individual unemployability is dismissed. FINDINGS OF FACT 1. The most probative evidence of record does not establish the Veteran has an infertility disability. 2. The Veteran has a single service-connected disability rated at 100 percent throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for female infertility have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The issue of entitlement to a total disability rating based on individual unemployability is moot. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 3.400, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from September 1965 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal of September 2015 and November 2016 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). By way of history, the Veteran brought a claim for service connection for PTSD in March 2013, a claim for infertility in December 2014, and a claim for TDIU in July 2016. Each of the claims was denied, and the Veteran perfected an appeal in the legacy system by filing timely Notices of Disagreement with each decision, and after issuance of statements of the case, filing timely VA Form 9s. All three issues were addressed in a February 2019 Board decision. At that time, the Board granted service connection for PTSD and remanded the remaining two claims for additional development. While the other claims were being developed, the RO issued a rating decision in April 2019, implementing the Board's grant of service connection for PTSD, and assigning a 30 percent rating from March 25, 2013, and a total rating from June 22, 2013. Given the timing of the rating decision, it was considered an initial decision under the Appeals Modernization Act (as opposed to a legacy decision). The Veteran requested Higher Level Review, and such was accomplished in a January 2020 rating decision. In October 2020, the Veteran filed a VA Form 10182 regarding the rating. In a May 2021 decision, the Board granted a 100 percent evaluation for her PTSD, effective the date of the grant of service connection, i.e., March 25, 2013. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's 2019 remand directed the RO to obtain outstanding VA treatment records dated prior to 2013. Pertinent records were associated with the file along with recent treatment records. The Board's remand also instructed the RO to provide the Veteran with an in-person examination to determine the nature and etiology of her infertility condition, which was provided in January 2020. The Board finds substantial compliance with its prior remand has been achieved and the merits of the appeal are discussed below. Id. at 271. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Veterans who served no less than 30 days at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 are presumed to have been exposed during such service to contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307 (a)(7)(iii). For veterans meeting these service requirements, the following diseases shall be service-connected if manifested to a compensable degree at any time after service even though there is no record of such disease during service: 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). Service connection for other disabilities may also be established as due to such exposure by affirmative evidence supporting that theory of entitlement. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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 of 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). 1. Entitlement to service connection for infertility is denied The Veteran contends she is entitled to service connection for infertility as a result of exposure to contaminated drinking water at Camp LeJeune. The Veteran has confirmed service at Camp LeJeune from December 1965 to July 1968 and is therefore presumed to have been exposed to contaminated water supply. The question for the Board is whether the Veteran has a current disability related to her active duty military service. The Board finds the evidence of record weighs against a finding the Veteran has infertility due to her exposure at Camp LeJeune. The Veteran was provided VA examinations in September 2015 and January 2020. The September 2015 VA examiner provided a thorough analysis of the issue of infertility. He concluded the evidence "simply does not support the presence of female infertility' and opined it was less likely than not that infertility arose as a result of contaminated water supply Camp LeJeune. The opinion relies on medical literature regarding birth defects, low birth weight, spontaneous abortion, stillbirth, and female infertility related to contaminants. The examiner discusses the Veteran's January 1968 positive pregnancy test while on active duty and states, "Early loss of pregnancy, such as likely occurred in early 1968, could well be related to exposure, but there is inadequate information to formally assess the reason for loss." He notes medical research shows the effects of groundwater contamination are acute, in that they only affect active pregnancies and have no long-term consequences. He reviewed the Veteran's post-service records and found no evidence of childbirth, pregnancy, intent to conceive, or fetal loss. Relating the Veteran's post-service treatment, the examiner notes the record has no mention of efforts at achieving pregnancy and is negative for active disease. The Veteran's January 2020 VA examiner concluded the Veteran's positive in-service pregnancy test is consistent with a false positive result, and thus she was likely not pregnant and did not have a spontaneous abortion. The conclusion relies on the Veteran's contemporaneous report of an absence of intercourse since November 1967 and the lack of an objective clinical examination to confirm pregnancy. At her 2020 examination, the Veteran stated she was unaware of the in-service test result and confirmed she has never been pregnant. The examiner finds there is a lack of evidence to confirm the Veteran has acute or chronic female infertility and concludes she does not meet the criteria for a diagnosis. She explains, "Infertility is a unique medical condition because it involves a couple, rather than a single individual. It is defined as inability of a couple to conceive after 12 months of regular intercourse without use of contraception in women less than 35 years of age; and after six months of regular intercourse without use of contraception in women 35 years and older." The examiner reasoned the Veteran had not undergone a complete diagnostic evaluation for infertility and her lack of pregnancy was due to behavioral inability to conceive. Although service records do indicate menstrual disturbances, complaints of abdominal pain, and similar symptoms, there is no evidence the Veteran has infertility or difficulty conceiving. The Veteran does not assert a relationship to service other than exposure to contaminated water at Camp Lejeune and the record does not indicate it is otherwise related to her active duty. The Veteran is competent to report readily observable symptoms and experiences, however the Veteran is not shown to be medically competent to provide a diagnosis or nexus opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issue is medically complex and requires medical knowledge in human anatomy and female reproduction and specialize training on chemical toxicity at Camp LeJeune. The Board notes the September 2015 VA examiner is a subject matter expert for the Camp LeJeune Contaminated Water Project, and as such, has specialized knowledge on the issue. The VA examiners' opinions are based on thorough review of the Veteran's particular circumstances and each provided medical literature in support of their conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, the cumulative medical opinions are given substantial probative value and weight. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). While the Board gives significant consideration to the Veteran's assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. As the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 2. Entitlement to total disability rating based on individual unemployability is dismissed. In July 2016, the Veteran raised the claim for a TDIU. Specifically, she asserts she is unable to perform greater than marginal employment since September 26, 2005 due to her psychiatric symptoms. As an initial matter, TDIU is an alternative way to achieve a total rating for a service-connected disability. In general, total disability ratings may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (emphasis added). The Veteran's sole service-connected disability is PTSD, and it is rated at the 100 percent, total level since the date of service connection in March 2013. The date of the claim for TDIU is in July 2016, at which time the Veteran's service-connected disability was already at the maximum rating. Therefore, entitlement to a TDIU is moot. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.