Citation Nr: 21041614 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-36 167A DATE: July 9, 2021 ORDER Service connection for neurobehavioral effects, to include an acquired psychiatric disorder, is denied. FINDINGS OF FACT 1. The Veteran had at least 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period between February 1966 and May 1967. 2. The Veteran does not have a disability manifested by neurobehavioral effects, or an acquired psychiatric disorder, that was caused by his service. CONCLUSION OF LAW The criteria for service connection for neurobehavior effects, to include an acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 1110, 1710, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 17.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to June 1969. In July 2014, the RO denied this claim. The Veteran appealed. In May 2020, the Board remanded this claim for additional development. In April 2020, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer with the Board. A copy of the hearing transcript is of record. In April 2021, the Veteran was notified that he is entitled to another hearing. However, in May 2021, he indicated that he did not want another hearing. Accordingly, the Board will proceed. See 38 U.S.C. § 7107 (c). 1. Neurobehavior effects. The Veteran asserts that service connection is warranted for a disability manifested by neurobehavioral symptoms, to include as due to exposure to chemicals such as trichloroethylene (TCE) while performing duties at a mechanic in a motor pool, as due to exposure to Camp Lejeune contaminated water ("CLCW"), and/or as due to exposure to radiation. Based on the medical evidence, his claim has been interpreted to include a claim for an acquired psychiatric disorder. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). With regard to radiation exposure, he asserts that he was exposed to radiation while stationed with an engineering unit at Camp Pendleton between 1968 and 1969, during which time he had to guard nuclear ammunition. See Veteran's claim (VA Form 21-526EZ) and statement in support of claim (VA Form 21-4138), received in February 2014; Veteran's statement, received in April 2015; transcript of Veteran's hearing, held in April 2020. He has reported that he never wore any sort of radiation monitoring (dosimetry) badge. See Veteran's statement in support of claim (VA Form 21-4138), received in August 1991. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. See 38 C.F.R. § 3.303 (d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. Service connection may also be granted for an organic disease of the nervous system when manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.307 (a)(7) "certain diseases have been associated with exposure to contaminants in the water supply at Camp Lejeune" (i) For the purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(7)(ii). A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the 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. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune means any 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 (a)(7)(iii). Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101 (24)(B) and (C). If an individual described in paragraph (a)(7)(iii) develops a disease listed in §3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307 (a)(7)(iv). Under 38 C.F.R. § 3.309 (f) "disease associated with exposure to contaminants in the water supply at Camp Lejeune," if a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of §3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): (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. For the purposes of hospital care and medical services for Camp Lejeune veterans, "neurobehavioral effects" is among the covered illnesses or conditions. 38 C.F.R. § 17.400(b). For a Camp Lejeune veteran, VA will assume that a covered illness or condition is attributable to the veteran's active duty service at Camp Lejeune unless it is clinically determined, under VA clinical practice guidelines, that such an illness or condition resulted from a cause other than such service. 38 C.F.R. § 17.400(c) An Axis IV assessment listing an experience represents an "etiologically significant psychosocial stressor" that may indicate a plausible connection between the current condition and that experience. Hernandez-Toyens v. West, 11 Vet. App. 379, 381-82 (1998). The Veteran's personnel records for his active duty service indicate that he was stationed at Camp Lejeune between November 1966 and May 1967. The Veteran's service treatment records show multiple complaints of headaches that were usually associated with sinus or nasal symptoms that included congestion. A July 1967 report notes complaints of headache and dizziness associated with a six-month history of being kicked in the right temporal-parietal area. X-rays of the skull were negative. The Veteran's separation examination report, dated in May 1969, shows that his neurological system and psychiatric condition were clinically evaluated as normal. As for the post-service medical evidence, a September 1990 report from a private physician, J.H., M.D., states that the Veteran has been suffering from two conditions that may cause behavioral changes that usually correct themselves when they are treated. First, he has an adenomatous thyroid causing symptoms that include extreme fatigue. Second, he has endogenous depression, which probably started with thyroid symptoms but never resolved after his thyroid operation, characterized by symptoms that include chronic fatigue, loss of interest in people and places, irritability and loss of temper, difficulty in concentrating and remembering, uncontrolled crying spells and mood swings, and eventually suicidal thoughts. VA reports show that in March 1990, the Veteran reported having depression and fatigue. He was noted to be taking Prozac. In January 1991, the Veteran was treated for a self-inflicted gunshot wound to the left arm while cleaning his pistol. In February 1991, he was admitted for psychiatric treatment with assessments of depression and suicidal ideation. He indicated that his self-inflicted gunshot wound in January was related to a suicide attempt. He was also diagnosed with an adjustment disorder with depressed mood. A July 1991 VA examination report notes complaints of fatigue following a June 1989 right total thyroidectomy and removal of isthmus with reimplantation of right inferior parathyroid gland. VA reports dated beginning in 1992 note complaints of fatigue and heat intolerance and a history of partial thyroidectomy. Beginning in 1997, the Veteran continued to receive psychiatric treatment that included cognitive therapy, with notations of anxiety and depression. VA progress notes, dated in July 2001, show that the Veteran was noted to have depression and anxiety "primarily because of financial stressors" He was noted to be a teacher without a source of income during the summer, and to have unexpected bills. His other symptoms included poor concentration, irritability, moodiness, and marked indecision. The Axis I diagnoses were dysthymic disorder and generalized anxiety disorder (GAD). The Axis III diagnoses included hypothyroidism. The Axis IV diagnosis was partial employment. An October 2001 report notes "major depression mildly responsive to pharmacotherapy hypothyroidism." In 2002, he was noted to have chronic depression and anxiety, and he reported that he had these symptoms during service. He reported an increased problem with remembering certain words and episodes of poor memory. He speculated that these symptoms may be due to use of Bupropion. Between 2005 and 2020, there are multiple notations showing that the Veteran reported that he had a significant degree of motor coordination and neurological functioning, to include reports that he enjoys skiing, working out, making furniture, and building model airplanes. The was a finding that his memory was poor and "waning" and that he had a history of difficulty with concentration. There were multiple findings that his cognition was grossly intact, that all of his actions were reality-based, that his memory was within normal limits, that he was oriented to person, place, time and/or situation, and that he did not have any neurological deficits. His diagnoses included dysthymic disorder and GAD. A VA central nervous system (CNS) disability benefits questionnaire (DBQ) from K.V., M.D., dated in September 2020, shows that the Veteran reported that he has had hopelessness and anxiety since 1969. He reported that he has days in which it is difficult to get out of bed, and that he experiences feelings of hopelessness, loss of energy, and difficulty concentrating. On examination, speech, gait, reflexes and strength were normal. The examiner indicated that the Veteran does not have cognitive impairment or dementia or any other mental health condition attributable to a CNS disease or its treatment. The examiner stated, "For the claimant's claimed condition of neuro behavioral effects there is no diagnosis because the Veteran does not have a central nervous system disorder." The Veteran is claiming anxiety and depression. The examiner concluded that it is less likely as not that the Veteran has a CNS condition that was incurred in, or caused by, his service. The examiner explained that the Veteran does not have a CNS disorder. In an opinion, dated in October 2020, a VA physician, A.S., M.D., provided a lengthy discussion of the facts of this case, summarized as follows: The claimed "neurobehavioral effects" are identified as anxiety and depression, and they are of long-standing duration. The Veteran has reported that he has had these symptoms since 1969. He has a long history of problems in school with concentrating and staying focused. The Veteran is noted to have significant psychiatric pathology going back to at least 1991, at which time there was a suicidal gesture. The Veteran was on medication and under medical care for the next 20 + years. Entrance notes to the military do not indicate psychopathology, and the Veteran's notes from care in the military do not detail psychiatric care. His psychiatric condition is clearly of long-standing duration and has been attributed to multiple causes, with one physician blaming it on sequelae to thyroid disease. The Veteran has several risk factors for depression, to include a family history of mental illness. The cause of major depressive disorder is unknown. The biopsychosocial model proposes that biological, psychological, and social factors all play a role in causing depression. Depression is felt to be genetic in origin with components from environmental exposures, but ultimately, causal factors for endogenous depression, believed to be a form of chemical imbalance in the brain, remains of uncertain origin. In this instance, however, multiple issues are present which may be culpable for the Veteran's condition, to include family history and thyroid disease. There are several clinical issues present which could be connected with the Veteran's depression and anxiety, although ultimate causality for the condition remains essentially unknown. Applicable data shows no association between CLCW and depression, nor does any other medical or scientific literature. There is no relationship between CLCW exposure and psychiatric disease in the ASDTR (Agency for Toxic Substances and Disease Registry) data or other medical literature. When all the evidence is taken together, and noting the Veteran's relatively short-term duration of exposure at Camp Lejeune, the data clearly supports the conclusion that the claimed condition is less likely as not caused by, or a result of, the Veteran's exposure to contaminated water at Camp Lejeune. (citations omitted). A VA mental disorders DBQ, dated in December 2020, shows the following: The Veteran started getting mental health treatment in 1991, with use of medication. He has not had therapy for the last five years. He has not taken medication for control of psychiatric symptoms since 2015. He is being treated for a thyroid condition. The Veteran is currently retired. He reports he has all kinds of hobbies, plays golf, skis, builds model airplanes, and that he has a number of friends. He reported that he has a good relationship with his wife. The examiner stated that while the Veteran reports a long history of depression and anxiety, he does not currently endorse a mental health disorder. The examiner determined that there is no mental disorder diagnosis. An opinion from a VA psychologist, dated in January 2021, shows that the examiner noted that the Veteran's reports of depression and anxiety are primarily from the past and that they relate to being exposed to radiation while serving as a nuclear ammunition guard when stationed at Camp Pendleton. The Veteran did not report depression, anxiety, sleep issues or any other mental health symptoms during the current examination. Currently, the Veteran does not endorse a DSM-5 mental health disorder. With regard to the possibility of direct service connection, the Veteran is not shown to have been treated for neurobehavioral symptoms or psychiatric symptoms during service, nor was a neurobehavioral disorder or an acquired psychiatric disorder noted upon separation from service. The Veteran is not shown to have a disease manifested by neurobehavioral effects. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). With regard to an acquired psychiatric disorder, this was not shown upon recent examination. However, there is evidence of depression and anxiety during the appeal period. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no competent opinion of record to show that service connection is warranted for an acquired psychiatric disorder on the basis of direct service connection, to include as due to exposure to chemicals or toxins. 38 C.F.R. § 3.303. Accordingly, service connection in a direct basis is not warranted. Id. A relevant organic disease of the nervous system is not shown within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. With regard to a claim based on exposure to contaminated water at Camp Lejeune, the Veteran is shown to have had at least 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. Neurobehavioral effects are specifically recognized by VA as residuals of contaminated water at Camp Lejeune pursuant to 38 U.S.C. § 1710 and 38 C.F.R. § 17.400. However, the Veteran is not currently shown to have a disease manifested by neurobehavioral effects. Gilpin. VA examiners have concluded that the Veteran is, in fact, claiming service connection for an acquired psychiatric disorder (depression and anxiety). However, there is no medical evidence or opinion of record to show that the Veteran has an acquired psychiatric disorder, to include depression and anxiety, as a residual to exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The only competent opinions of record are Dr. J.H.'s September 1990 opinion, and the VA opinions, all of which weigh against the claim. Accordingly, the claim must be denied on this basis. Finally, the Veteran has asserted that he has a neurobehavioral disability due to exposure to radiation. The Veteran's personnel records show that as of at least March 1969 he had a secret security clearance and a reliability screening certificate. The Veteran's discharge (DD Form 214) shows that his specialty was engineer equipment mechanic. A statement from the Navy Environmental Health Center Detachment, dated in July 1994, states that there is no record of the Veteran every having received occupational exposure to ionizing radiation. A statement from a nurse practitioner, dated in July 2000, states that the Veteran was a munitions guard in service and that he guarded nuclear artillery, and indicates that he may have been exposed to radiation. To the extent that the nurse practitioner's statement indicates that the Veteran was exposed to ionizing radiation during service, this evidence is afforded no probative value, as it is not shown to have been based on a review of any of the Veteran's records or a detailed and reliable medical history, it appears to have solely been based on the Veteran's self-reported history, and it is not corroborated by any objective evidence in the claims file. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). A radiation risk activity information sheet (RRAIS), received in April 2015, shows that the Veteran indicated that he had not been issued, or worn, a film badge during service. He did not indicate exposure to a nuclear test blast. He reported that he had guarded a black box with a radiation symbol on it "a few times" while he was stationed at Camp Pendleton with an engineering battalion between October 1968 and June 1969. As exposure to ionizing radiation is not shown during service, further development, to include development under 38 C.F.R. § 3.311, is not warranted. Wandel v. West, 11 Vet. App. 200, 204-205 (1998). The Board notes that 38 C.F.R. § 3.311 does not create a presumption for service connection. Rather, it provides special procedures for evidentiary development and adjudication of a claim. Implicit in the regulation is the requirement for evidence of a medical nexus between the exposure to the ionizing radiation and the current disability. The Veteran does not qualify as a radiation-exposed veteran involved in radiation-risk activity, that is, either as a participant in a test of a nuclear device or in the occupation of Hiroshima or Nagasaki, Japan by U.S. forces during the period beginning on August 6, 1945 and ending on July 1, 1946. See 38 C.F.R. § 3.309 (d)(3). Therefore, the presumption of service connection for specific diseases for radiation-exposed veterans under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d) does not apply. As the presumption of service connection under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d) does not apply to the claimed condition, there is no legal basis to relate a neurocognitive disorder or an acquired psychiatric disorder to exposure to ionizing radiation under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d). Given the foregoing evidence, service connection for a neurocognitive disability, to include an acquired psychiatric disorder, is not warranted under the procedures as set forth in 38 C.F.R. § 3.311. A neurocognitive disability is not shown. There is no competent evidence of record to show an etiological relationship between a demonstrated acquired psychiatric disorder and his service. Combee. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's own contentions, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the issues of diagnosis and etiology fall outside of the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's personnel records and service treatment reports, and the post-service medical records, have been discussed. There is no competent opinion of record in favor of the claim. A neurocognitive disability is not shown, and an acquired psychiatric disorder is not shown for many years following separation from active duty service. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions to the effect that he has the claimed condition due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.