Citation Nr: 21042678 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-06 874 DATE: July 13, 2021 ORDER Service connection for cardiomyopathy, claimed as heart disease including as caused by herbicide exposure and/or contaminated water at Camp Lejeune is denied. Service connection for chronic obstructive pulmonary disease (COPD) including as claimed due to herbicide exposure and/or contaminated water at Camp Lejeune is denied. Service connection for renal disease including as due to herbicide exposure and/or contaminated water at Camp Lejeune is denied. REMANDED The issue of a rating greater than 10 percent for right tibia stress fracture with degenerative joint disease is remanded. The issue of a rating greater than 10 percent for left tibia stress fracture and left knee strain with degenerative joint disease is remanded. The issue of a compensable rating for nonpainful scars of the right knee is remanded. The issue of special monthly compensation (SMC) based on aid and attendance/housebound is remanded. FINDINGS OF FACT 1. The Veteran's cardiomyopathy claimed as heart disease is not the result of any incident of service or service-connected disorder. 2. The Veteran's COPD is not the result of his service, to include due to exposure to contaminated water at Camp Lejeune or exposure to herbicides. 3. The Veteran's renal disease is not the result of his service, to include due to exposure to contaminated water at Camp Lejeune or exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria to establish service connection for cardiomyopathy claimed as heart disease, to include as due to exposure to contaminated water at Camp Lejeune or exposure to herbicides have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for COPD, to include as due to exposure to contaminated water at Camp Lejeune or exposure to herbicides have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria to establish service connection for renal disease, to include as due to exposure to contaminated water at Camp Lejeune and exposure to herbicides have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1971 to October 1974 and served in Thailand. See Record of Assignments; NAVMC Form 118(9); showing "served in Nam Phong, Thailand." Effective May 2008, the Veteran's combined rating of service-connected disorders is 100 percent. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran was exposed to an herbicide agent during active military, naval, or air service and certain disabilities become manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The disabilities include: AL amyloidosis, chloracne, or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda (PCT), prostate cancer, respiratory cancers, and some forms of soft-tissue sarcoma. PCT, chloracne, and early-onset peripheral neuropathy must become manifest to a compensable degree within one year from last exposure. Veterans who served in the Republic of Vietnam during the Vietnam Era (from February 28, 1961, to May 7, 1975) are presumed exposed to herbicides under 38 C.F.R. § 3.307(a)(6). However, the Veteran did not serve in Vietnam, contrary to information contained on his report of separation from the Armed Forces. As noted, his record of assignments shows that he served in Thailand. Through his representative, the Veteran also reported during a July 2015 hearing that he did not serve in Vietnam. His claimed exposure to herbicide agents is unsubstantiated. Veterans who lived or worked at the United States Marine Corps Base, Camp Lejeune, North Carolina, from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs), including perchloroethylene (PCE), trichloroethylene (TCE), benzene, and vinyl chloride. 78 Fed. Reg. 55,671, 55,672 (Sept. 11, 2013). Under 38 C.F.R. §§ 3.307 and 3.309 relating to presumptive service connection, there are several diseases and disorders for which a "Camp Lejeune" veteran may receive service-connected compensation. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (Jan. 13, 2017). This rule is that presumptive service connection is available for veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days, either consecutively or nonconsecutively, during the period, and who have been diagnosed with any of the following diseases: adult leukemia, aplastic anemia/myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin lymphoma, and Parkinson's disease. Id. at 4184-85. The final rule is effective March 14, 2017, and the amended provisions of 38 C.F.R. §§ 3.307 and 3.309 apply to claims received by VA on or after March 14, 2017, and claims pending before VA on that date. However, the Veteran does not have any of these disorders. Veterans who were exposed to contaminated water at Camp Lejeune are also eligible for hospital care and medical treatment for fifteen (15) conditions, some of which are not included on the presumptive list described above. 38 U.S.C. § 1710 (e)(1)(F); 38 C.F.R. § 17.400. However, the Veteran does not have a diagnosis for one of these 15 conditions. The Veteran's exposure to contaminated water at Camp Lejeune is presumed. However, the Veteran does not have a disorder which is presumed caused by contaminated water at Camp Lejeune. Therefore, the Veteran is not entitled to a presumption of in-service injury under the relevant regulations. However, the Veteran can still show entitlement to service connection for these disabilities based on a direct nexus that is, when VA receives competent evidence indicating that service caused the claimed disorder. The Veteran has not submitted any evidence supporting direct service connection. In the Veteran's March 2021 hearing, he was offered 60 days to submit additional evidence to support his claims. However, the Veteran said that 30 days would be sufficient and was informed that he could request an additional 30 days if necessary. The Veteran also opted not to testify about his service connection claims for his heart disease, renal disease, or pulmonary disease. The Veteran stated additional evidence would be provided to the Board within the 30 days following the hearing, however, no additional evidence has been received. In addition, the Veteran has not requested additional time to submit evidence. 1. Service connection for heart disease The Veteran's service treatment records (STRs) are silent for complaints relevant to his heart and his September 1974 examination for service separation contained no relevant complaints, treatments, or diagnoses. In a June 2016 treatment record, medical care providers noted the Veteran had a history of congestive heart failure. A February 2017 treatment record indicates the Veteran had surgery on sinoatrial node (SA node) in 1994. A January 2018 VA medical examiner found that the Veteran did not have IHD but had cardiomyopathy. The examiner specifically noted that none of the Veteran's heart conditions were within the medical definition of IHD. The examiner also found that the cause of the Veteran's cardiomyopathy was his history of cocaine abuse. The examiner found that the Veteran did not have a history of myocardial infarction. The preponderance of evidence is against the Veteran's claim of service connection for heart disease. The Veteran has not submitted and the record does not contain any evidence suggesting that his cardiomyopathy was caused by any incident of military service or any presently service-connected disorder. The claim is therefore denied. 2. Service connection for COPD In service treatment records (STRs) from November 1971, December 1971, February 1972, October 1973, and March 1974 the Veteran had complaints of cold symptoms, such as coughing, sore throat, and sinus congestion. However, the symptoms regularly resolved, and the Veteran was not diagnosed with a condition during service. The Veteran's September 1974 examination for service separation was also silent for relevant complaints, treatments, or diagnoses. In a December 2003 treatment record, the Veteran was noted to have a likely diagnosis of reactive airway disease with a component of COPD. The clinician noted that the Veteran was a smoker. In a July 2012 treatment record, the Veteran indicated that he was a smoker and did not want to be referred for a smoking cessation program. In a separate July 2012 treatment record and a July 2016 record, the Veteran was encouraged to quit smoking. In a September 2019 treatment record, the Veteran was noted to have at least a 30-year history of smoking. However, the clinician noted that the Veteran does not use tobacco every day. The Veteran contends that his COPD is the result of his service. However, there is no evidence that supports this contention or suggests that the disorder is related to his Camp Lejeune service. A VA examination is not necessary in this instance. A conclusory generalized statement that a condition was caused by service does not entitle him to a VA examination. Waters v. Shinseki, 601 F. 3d 1274 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case) The Veteran is not competent, however, to offer an opinion as to the etiology of his COPD, due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A preponderance of the evidence is against a finding that the Veteran's COPD originated during or because of his service. The first indication that the Veteran had COPD was in December 2003, many years after service separation, but there is no competent medical evidence that the Veteran's COPD began in or because of service. The Veteran's in-service complaints were all diagnosed as acute cold and sinus symptoms with no long-term diagnosis. Therefore, service connection is not warranted, and the claim is denied. 3. Service connection for renal disease The Veteran's STRs and examination for service separation are silent for complaints related to kidney disease or other relevant conditions. A February 2018 VA examiner noted that there is a link between end stage renal disease (which the Veteran does not have) and exposure to Trichloroethylene (TCE). However, the examiner found that the Veteran's chronic kidney disease (CKD) is not the result of the Veteran's exposure to contaminated water at Camp Lejeune. Instead, the examiner noted that the Veteran had a lengthy history of hypertension, which is a cause of CKD. The record shows that the Veteran was counseled by VA medical care providers in July 2007, January 2008 and June 2008 about the "risks of uncontrolled BP (blood pressure), including renal (disease)." The Board has considered the Veteran's assertions that his renal disease is caused by his military service. The Veteran is not competent, however, to offer an opinion as to the etiology of this type of medical condition due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A preponderance of the evidence is against a finding that the Veteran's renal disease was caused by service. The Veteran was first noted to have possible kidney function problems in October 2002, many years after service separation. There is no competent medical evidence that the Veteran's renal disease began in or as a result of service. Therefore, service connection is not warranted, and the claim is denied. REASONS FOR REMAND The issue of entitlement to a rating greater than 10 percent for right tibia stress fracture with degenerative joint disease is remanded. The issue of entitlement to a rating greater than 10 percent for left tibia stress fracture and left knee strain with degenerative joint disease is remanded. The issue of entitlement to a compensable rating for nonpainful scars of the right knee is remanded. The issue of entitlement to SMC based on aid and attendance/housebound is remanded. The Board has determined that more development is necessary, and the matter is REMANDED for the following: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran testified in March 2021 that his knee disabilities had worsened over the preceding three to four years. Specifically, the Veteran has noted trouble with balance, falling, painful motion, swelling, difficulty with stairs, and prescribed use of assistive devices. The Veteran has also noted that the scar resulting from his knee surgery has become painful. Remand is necessary to obtain updated examinations for the Veteran's lower extremity increased rating claims. The Veteran's SMC claim is remanded as intertwined with the other claims. THE REMAND DIRECTIVES FOLLOW. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Schedule the Veteran for a VA examination to determine the symptomatology of his bilateral knee disability and the symptomatology of the scar on his right knee. The examiner must test the Veteran's active motion, passive motion, and perform testing with weight-bearing and without weight bearing. The examiner must elicit information about the severity, frequency, and duration of any flareups, and the degree of functional loss during flareups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should review the entire file, but his/her attention is drawn to the following: * In May 2012, the Veteran was afforded a VA examination. The Veteran was noted to have had arthroscopic surgery on his right knee. The Veteran was also noted to have a left knee strain. The examiner noted a history for bilateral knee instability but indicated no instability upon testing. The examiner indicated both knees had range of motion measurements including flexion from 0 to 130 degrees with no limitation of extension, to include after repetitive use. However, the examiner did note functional loss causing less movement than normal. The Veteran was also noted to have a stable but non-painful scar on his right knee. * In February 2016, the Veteran was afforded a VA examination. The Veteran was noted to have degenerative arthritis in both knees and knee instability in the right knee. The Veteran's right knee range of motion included forward flexion from 0 to 115 degrees and extension from 115 to 0 degrees. The Veteran's left knee range of motion included forward flexion from 0 to 120 degrees and extension from 120 to 0 degrees. The Veteran did not experience additional loss of motion after repetitive use. The examiner noted moderate instability and functional loss in both knees. The examiner stated that the Veteran was not being evaluated during a flare-up and that it would be speculation to describe additional limitation during a flareup in terms of range of motion. The Veteran also had stable and non-painful scars on his right knee that measured 1 x 0.3 cm and 1 x 0.5 cm. 4. Thereafter, and after undertaking any additional development necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wozniak, Associate Counsel The Board's decision is binding only with respect to this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.