Citation Nr: 22013996 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 20-23 886 DATE: March 11, 2022 ORDER Entitlement to service connection for a disability manifested by a chronic cough is dismissed. Entitlement to service connection for a thyroid disorder, to include as secondary to the Veteran's service connected disabilities or as due to his conceded exposure to contaminated waters at Camp Lejeune, is denied. Entitlement to service connection for a spleen condition, to include as secondary to the Veteran's service connected disabilities or as due to his conceded exposure to contaminated waters at Camp Lejeune, is denied. Entitlement to service connection for a liver disorder, to include as secondary to the Veteran's service connected disabilities or as due to his conceded exposure to contaminated waters at Camp Lejeune, is denied. Entitlement to service connection for a pancreas disorder, to include as secondary to the Veteran's service connected disabilities or as due to his conceded exposure to contaminated waters at Camp Lejeune, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service connected duodenal ulcer with vagotomy, pylorplasty, appendectomy, and subtotal gastrectomy with gastroesophageal reflux disease (GERD), is remanded. FINDINGS OF FACT 1. At the Board hearing in May 2021, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the issue of whether service connection is warranted for a disability manifested by a chronic cough. 2. The evidence of record persuasively weighs against finding that thyroid, spleen, liver, or pancreas conditions began during active service, or are otherwise related to an in-service injury or disease, including exposure to contaminated waters at Camp Lejeune. 3. The evidence of record persuasively weighs against finding that thyroid, spleen, liver, or pancreas conditions are secondary to the Veteran's service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of the issue of whether service connection is warranted for a disability manifested by a chronic cough are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a thyroid disorder, including as due to exposure to contaminated drinking water at Camp Lejeune, and including as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a spleen condition, including as due to exposure to contaminated drinking water at Camp Lejeune, and including as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for a liver disorder, including as due to exposure to contaminated drinking water at Camp Lejeune, and including as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for a pancreas condition, including as due to exposure to contaminated drinking water at Camp Lejeune, and including as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from July 1968 to July 1970. This matter comes before the Board of Veterans Appeals (Board) from July 2015 and July 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided hearing testimony before the undersigned Veterans Law Judge (VLJ) with regard to the issues addressed in this decision in May 2021. A hearing was held related to the Veteran's claim for service connection for prostate cancer before another VLJ in August 2021. That issue was decided in a separate Board decision. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, at the May 2021 Board hearing, the Veteran, by way of his representative, indicated that the Veteran's chronic cough is part of the Veteran's rating for his service connected duodenal ulcer and not a distinct disability. For this reason, the representative indicated a desire to withdraw that issue as a separate claim and indicated the understanding that the cough was already receiving compensation by way of the 60 percent rating assigned for the duodenal ulcer. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the appeal of entitlement to service connection for a disability manifested by a chronic cough is dismissed. Service Connection The Veteran contends that service connection is warranted for a thyroid condition, a spleen condition, an enlarged liver, and a pancreas condition. 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question in this case is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease, or, in the alternative, is proximately due to or the result of, or is aggravated beyond its natural progress by his service-connected disabilities. The Board recognizes the claims file includes evidence of abnormalities with regard to each of the claimed disorders. Records as recent as November 2020 show the Veteran as having hypothyroidism and being on medication, although not having received testing in months in order to assess the stability of medication dosing. May and June 2021 clinical records continue to show the Veteran being on thyroid medication. An April 2018 MRI shows a mildly enlarged spleen and a December 2018 ultrasound showed mild splenomegaly. As for the liver, an April 2018 MRI revealed scattered tiny nonenhancing cysts within the liver and December 2018 records include notation of a fatty liver, although not enlarged. Finally, November 2018 clinical records indicate atrophy of the pancreas, with a notation that there is no clear etiology for this. The Veteran's service treatment records are without any indication of a thyroid condition, a spleen condition, liver, or pancreas conditions, or any symptoms thereof. The RO has conceded the Veteran was exposed to contaminated waters at Camp Lejeune during this active service. There is a presumption that certain diseases are related to exposure to contaminated water at Camp Lejeune. Those diseases include 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). The Veteran's claimed disabilities are not diseases subject to presumptive service connection from exposure to contaminated water at Camp Lejeune under 38 C.F.R. § 3.309(f). Service connection, therefore, cannot be awarded on a presumptive basis related to the Veteran's in-service exposure to contaminated waters at Camp Lejeune. The Board has reviewed the evidence and there is also no evidence suggesting an actual link between the Veteran's thyroid condition, spleen condition, liver condition, or pancreas condition and his exposure to contaminated waters at Camp Lejeune. At the time of his August 2020 substantive appeal related to the pancreas, liver and spleen conditions, the Veteran's representative indicated the VA Form 9 was being filed to preserve the Veteran's appellate rights as they sought more information and evidence as to the potential for a causal connection between these disorders and the Veteran's exposure to contaminated waters at Camp Lejeune, or, in the alternative, related to the Veteran's service-connected duodenal ulcer. No such evidence and no further argument has been provided. At the May 2021 Board hearing, this potential development of the evidence was again referred to, but no such evidence has since been provided. At the time of a January 2018 VA examination related to the Veteran's service connected duodenal ulcer, the examiner opined that it is less likely than not that the Veteran's thyroid condition and hepatosplenomegaly are proximately due to or the result of his duodenal ulcer. The medical evidence was reviewed and the claim for a pancreas disorder was noted, but this examiner found there to be no medically diagnosed pancreatic condition. The examiner explained that the opinion provided was based upon a review of the claims file to include the Veteran's lay statements and medical records, as well as a review of the known medical literature. The evidence simply does not include information to suggest that any abnormality of the Veteran's thyroid, spleen, liver or pancreas is causally connected to the Veteran's active service, to include his conceded exposure to contaminated waters at Camp Lejeune, or to suggest that any of the abnormalities are proximately due to or being aggravated by the Veteran's service connected duodenal ulcer. The Board recognizes the Veteran is also service connected for a kidney condition, abdominal scars, prostate cancer, erectile dysfunction, and major depressive disorder. The evidence is also without an indication of a connection between the Veteran's thyroid, spleen, liver or pancreas abnormalities and these service-connected disabilities. The evidence supporting such a connection is limited to the Veteran's claim and his and his representative's lay statements. The Veteran and his representative are not competent to provide a nexus opinion regarding these issues. The issues are medically complex, as they require knowledge of the interaction between multiple organ systems in the body and varying pathology with regard to the Veteran's disorders. Therefore, it is outside the competence of the Veteran and his representative in this case because the record does not show that either have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Finally, the Board finds there is no need to remand these claims for additional evidentiary development. The record does not include evidence showing any potential for a causal connection between the claimed disabilities and the Veteran's active service or his service-connected disabilities. The evidence does not give rise for the need for an additional examination or opinion for any of these claims. 38 C.F.R. § 3.159(c)(4). Based upon the foregoing, the claims for service connection for a thyroid condition, a spleen condition, an enlarged liver, and a pancreas condition must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the evidence in this case persuasively weighs against the Veteran's claims, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND Sleep Apnea The Veteran claims service connection is warranted for sleep apnea. The RO denied this claim because there was no indication of symptoms of sleep apnea in the Veteran's service treatment records. The RO recognized the Veteran's exposure to contaminants known to be in the Camp Lejeune water supply, but also found there to be no evidence of a causal connection between that exposure and any current sleep apnea. However, the Veteran's claim is primarily that the sleep apnea is proximately due to or being aggravated by his service-connected duodenal ulcer. 38 C.F.R. § 3.310. At this May 2021 Board hearing, the Veteran described the inability to effectively wear the CPAP for his sleep apnea, because it sends him into coughing and regurgitation episodes. In other words, the Veteran described symptoms of his service-connected duodenal ulcer potentially aggravating his sleep apnea because these symptoms prevent him from effectively using the CPAP device for the sleep apnea. The Veteran has not been afforded a VA examination related to his sleep apnea. The Board cannot make a fully-informed decision on the issue of whether service connection is warranted for sleep apnea because no VA examiner has opined whether the sleep apnea is proximately due to or being aggravated by the Vetearn's service-connected duodenal ulcer. 38 C.F.R. § 3.159(c)(4). Remand is, therefore, necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. The examiner is asked to confirm the presence of sleep apnea and, to the extent possible, identify the approximate date of onset. The examiner is asked to provide a response to the following: Is the sleep apnea at least as likely as not proximately due to the Veteran's service-connected disability characterized as duodenal ulcer with vagotomy, pylorplasty, appendectomy, and subtotal gastrectomy with GERD? Is the sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected disability characterized as duodenal ulcer with vagotomy, pylorplasty, appendectomy, and subtotal gastrectomy with GERD? Is the sleep apnea proximately due to or being aggravated by any of the Veteran's other service connected disabilities (kidney condition, abdominal scars, prostate cancer, erectile dysfunction, or major depressive disorder)? The examination report should include reasons for any opinion expressed. This reasoning should include consideration of the Veteran's May 2021 Board hearing testimony, during which he indicated that the use of a CPAP for his sleep apnea was interfered with by the symptoms of his service-connected duodenal ulcer condition, to include coughing and regurgitation. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the Veteran's claims should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.