Citation Nr: 22014979 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 18-33 298 DATE: March 15, 2022 ORDER 1. Entitlement to service connection for a bowel disability, to include as being due to contaminated water at Camp Lejeune, is denied. 2. Entitlement to service connection for a gastrointestinal disability, to include as being due to contaminated water at Camp Lejeune, is denied. 3. Entitlement to service connection for a kidney disability, to include as being due to contaminated water at Camp Lejeune, is denied. 4. Entitlement to service connection for a urinary disability, other than a kidney disability, to include as being due to contaminated water at Camp Lejeune, is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a bowel disability at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that a gastrointestinal disability was incurred in or otherwise related to service. The evidence of record establishes that the Veteran served less than 30 days at Camp Lejeune. 3. A kidney disability did not have its onset in service, was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service. The evidence of record establishes that the Veteran served less than 30 days at Camp Lejeune. 4. The evidence of record persuasively weighs against finding that the Veteran has had a urinary disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a bowel disability, to include as being due to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a gastrointestinal disability, to include as being due to contaminated water at Camp Lejeune, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a kidney disability, to include as being due to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a urinary disability, other than a kidney disability, to include as being due to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps on from July 1969 to January 1970 with additional periods of reserve duty. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in July 2021. The Board has recharacterized the Veteran's claim for entitlement to service connection for a stomach disability as a claim for entitlement to service connection for a gastrointestinal disability. Although VA treatment records note the diagnosis of a right inguinal hernia, the Board finds that the Veteran's claim to entitlement for service connection for a stomach disability does not encompass this diagnosis. If the Veteran wishes to file a claim for compensation for this issue, he may do so separately. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more of active service, and certain chronic diseases, such as kidney disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. 38 C.F.R. § 3.307(a)(7)(iii). In a June 1971 service treatment record from the Veteran's reserve duty, the Veteran received medical treatment at Camp Lejeune. In a September 1972 letter, the Veteran stated he was stationed in Camp Lejeune for a training camp in March 1971. At the July 2021 Board hearing, the Veteran stated he was assigned to Camp Lejeune three times for his annual training requirement during his reserve duty, for a total of 45 days. The Veteran's service personnel records do not support that the Veteran was assigned to service in Camp Lejeune on other occasions, including for active duty for training purposes. For example, a "Record of Service" documents the Veteran's locations and dates of service. The record included the Veteran's active duty and reserve duty, and span from July 1969 to October 1974. The record shows that the Veteran was stationed to various locations in California and Indiana, but do not support that the Veteran was assigned to Camp Lejeune. In a Standard Form 600, Chronological Record of Medical Care, the Veteran's medical care between January 1970 and May 1974 is documented. Between 1971 and 1974, these records include notations that the Veteran was found to be physically qualified for annual training and document that he was examined in various geographic locations, but do not support notations of duty at Camp Lejeune. In a NAVMC 798-DR, Reserve Retirement Credit Report, it is documented that the Veteran was assigned to duty in South Bend, Indiana. Accordingly, these records do not support that the Veteran had additional duty at Camp Lejeune, and the Board finds that the evidence persuasively establishes that the Veteran did not have the minimum 30 days of service at Camp Lejeune to establish presumptive service connection due to exposure to contaminated water at Camp Lejeune. 38 C.F.R. § 3.307(a)7(iii). If a veteran is presumed to have been exposed to contaminants in the water supply during service at Camp Lejeune and develops certain diseases to a compensable degree any time after such service, the disease shall be service-connected 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. The diseases are 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(e). Notwithstanding the foregoing, a veteran may establish service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee, 34 F.3d 1039, 1042. 1. Entitlement to service connection for a bowel disability, to include as being due to contaminated water at Camp Lejeune In a November 2016 VA Form 21-4138, Statement in Support of Claim, the Veteran stated that his bowels are inconsistent, and that he experiences both diarrhea and constipation, and attributed his bowel disability to service at Camp Lejeune. In light of the following analysis, which shows that the Veteran was found to have clinically normal evaluations of his bowels on numerous occasions, including after a colonoscopy examination, the Board shall consider the Veteran's constipation symptoms as a part of his gastrointestinal disability. In the December 2017 Notice of Disagreement (NOD) the Veteran stated that his bowel problems were documented in June 1972 and January 1974 service treatment records, and contended that they were due to exposure to contaminated water at Camp Lejeune. At the July 2021 Board hearing, the Veteran testified that he treats his bowel issues through the use of over-the-counter medication such as "Pepto." The Veteran stated that he does not have bowel cancer. The Veteran stated he had not been diagnosed with a bowel disability. The question for the Board as to this issue 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 disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for service connection to be established, there needs to be competent evidence of a current disability. The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against a finding that the Veteran has a current bowel disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). For example, a July 2017 VA treatment record shows the examiner documented the Veteran reported there was no change in bowel symptoms, and was found to have normal bowel sounds in all four quadrants of his gastrointestinal system. An August 2017 VA treatment record shows the Veteran was found to have a normal nonobstructive bowel gas pattern. A March 2018 VA treatment record shows the Veteran once again reported no change in bowel symptoms and was found to have normal bowel sounds in all four quadrants of his gastrointestinal system. The Board notes that in a June 8, 2018 VA treatment record, it was documented that the Veteran underwent a colonoscopy. After the procedure, the Veteran reported a change in his bowel habits, and complained of blood in the stool, hemorrhoids, and constipation. However, in a June 11, 2018 VA treatment record, it was documented that the Veteran denied bowel problems. In a June 12, 2018 VA treatment record, the results of the colonoscopy were documented, and no diagnosis of a bowel disability was made. By the time of a July 2018 VA treatment record, the Veteran reported no change in his bowels, and was found to have normal bowel sounds in all four quadrants of his gastrointestinal. Accordingly, the Veteran's reported bowel symptoms were a result of the colonoscopy, and thus were temporary, as evidenced by the Veteran's denial of bowel problems a few days later, and the finding of a normal clinical evaluation of the Veteran's bowels in July 2018. The VA treatment records do not support complaints of diarrhea or other bowel symptoms. Accordingly, while the Veteran is competent to report symptoms, the Board affords more probative value to the Veteran's reports of symptoms to VA treatment providers, which did not include complaints of diarrhea, including when the Veteran's bowels were examined, as they were made in the context of seeking medical care, and the Veteran would be motivated to provide accurate medical information in such a context. Accordingly, the Board finds that the Veteran's report of experiencing diarrhea is not credible, and the Board affords more probative value to the Veteran's VA treatment records, as they include regular evaluation of the Veteran's bowels as well as surgical examination of the Veteran's colon. The Board concludes that the evidence persuasively weighs against a finding that the Veteran has current bowel disability, to include symptoms that cause functional impairment that affects earning capacity, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). For example, of record are medical records from June 2017 to November 2018, and the evidence during this time period does not support a current bowel disability, to include symptoms that cause functional impairment that affects earning capacity. The affirmative denial of bowel symptoms is evidence against the claim for service connection for a bowel disability. In sum, without competent evidence of a current disability, the Board concludes that the evidence is persuasively against the Veteran's claim for service connection for a bowel disability. For these reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for a bowel disability is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. Entitlement to service connection for a gastrointestinal disability, to include as being due to contaminated water at Camp Lejeune In a November 2016 VA Form 21-4138, Statement in Support of Claim, the Veteran stated that his bowels are inconsistent, and that he experiences constipation, and attributed his stomach disability to service at Camp Lejeune. In the December 2017 NOD, the Veteran stated that his stomach problems were documented in June 1972 and January 1974 service treatment records, and contended that they were due to exposure to contaminated water at Camp Lejeune. At the July 2021 Board hearing, the Veteran testified that his gastrointestinal disability results in constipation, and that he utilizes stool softener medication to resolve the symptoms. The Veteran attributed his disability to the requirement of eating quickly during service. The Veteran denied a family history of similar problems. The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of service connection for a gastrointestinal disability. The reasons follow. The Veteran has been diagnosed with a gastrointestinal disability, and thus there is evidence of a current disability. For example, VA treatment records note that the Veteran receives treatment and medication for chronic constipation. Thus, the facts establish that the first element of a service-connection claim is met. As to an in-service disease or injury, the evidence supports a finding of a disease or injury in service indicative of a gastrointestinal disability. The service treatment records (STRs) show that the Veteran was treated for diarrhea in August 1969. A June 1972 service treatment record from the Veteran's Reserve duty shows he complained of stomach pain and reported a history of stomach ulcers, although it was documented that this diagnosis was not confirmed. The Veteran was assessed to have stomach pain due to irritation from alcohol, which was documented to be due to his own misconduct. A July 1973 service treatment record from the Veteran's Reserve duty shows he complained of upset stomach and diarrhea. A January 1974 service treatment record from the Veteran's Reserve duty shows he complained of recurrent nausea for five days, without any blood or change of bowel movements. Upper gastrointestinal tract x-rays were negative, and the Veteran was found to have a soft abdomen with good bowel sounds. The Veteran was diagnosed with intestinal flu. Another January 1974 service treatment record from Reserve duty shows the Veteran complained of stomach distress. In a July 1974 Report of Medical Examination, the Veteran was found to have a normal clinical evaluation of his stomach and viscera. In a Report of Medical History from July 1974, the Veteran reported a positive history of stomach and intestinal problems, which supports that he had experienced gastrointestinal symptoms in service. Accordingly, the Board finds the evidence supports a finding of complaints or symptoms related to a gastrointestinal disability during service, and the in-service disease or injury element is met. However, the evidence is persuasively against a nexus between a post-service gastrointestinal disability and service. For example, in a November 2016 VA Form 21-4138, Statement in Support of Claim, the Veteran first reported his constipation, which is approximately 46 years after service, which does not lend to a finding that the disability had its onset in service. With regard to the Veteran's contention that his gastrointestinal disability is due to service at Camp Lejeune, as discussed above, the evidence does not show that the Veteran had the minimum requisite service of at least 30 days for presumptive service connection due to service at Camp Lejeune. Additionally, a gastrointestinal disability, to include a diagnosis of chronic constipation, is not a disease that is entitled to presumptive service connection due to exposure to contaminated water at Camp Lejeune, and the evidence does not support that the Veteran's gastrointestinal disability is directly caused by the Veteran's service at Camp Lejeune. While the Veteran alleges that the gastrointestinal disability is related to service, he is not competent to attribute the disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the gastrointestinal disability and service, and the nexus element of a service-connection claim is not met. VA did not provide the Veteran with a VA examination or medical opinion in connection with this claim. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) 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, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, for the reasons described above, the Board finds that the evidence does not support an indication that the gastrointestinal disability may be associated with the Veteran's service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for this claim. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for a gastrointestinal disability is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, 21 F.4th 776. 3. Entitlement to service connection for a kidney disability, to include as being due to contaminated water at Camp Lejeune In a December 2017 VA Form 21-4138, Statement in Support of Claim, the Veteran contended that his kidney disability is due to his service at Camp Lejeune. The Veteran stated he had no history of kidney issues within his family. At the July 2021 Board hearing, the Veteran testified that he now has Stage 4 kidney disease. The Veteran reported that he takes medication for his kidney problems. The Veteran stated that his doctor told him that high blood pressure is common amongst black people, and that this can cause kidney problems. The Veteran reported that he has not been diagnosed with kidney cancer, and reiterated that he has no family history of kidney problems. The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of service connection for kidney disability on a direct or presumptive basis. The reasons follow. The Veteran has been diagnosed with kidney disability, and thus there is evidence of a current disability. For example, a March 2018 VA examination report shows the examiner documented the Veteran received a diagnosis of nephrosclerosis, Stage 3 kidney disease in November 2107. At the July 2021 Board hearing, the Veteran reported that his condition had advanced to Stage 4 kidney disease. Thus, the facts establish that the first element of a service-connection claim is met. As to an in-service disease or injury, the evidence does not support a finding of a disease or injury in service indicative of a kidney disability. The service treatment records (STRs) show that the Veteran was found to have a normal clinical evaluation of his genitourinary system in a Report of Medical Examination from July 1974, Reserve duty after his period of active duty that ended in 1970. In the corresponding Report of Medical History, the Veteran denied a history of kidney stones or blood in the urine, and denied a history of painful urination, which tends to show that he was not experiencing kidney disability at that time, which was approximately four years after service. Accordingly, the Board finds the evidence persuasively weighs against a finding of an in-service disease or injury related to the kidneys, and the in-service disease or injury element is not met. Additionally, the evidence persuasively weighs against a nexus between kidney disability and service. For example, in a November 2017 VA treatment record, the Veteran was first diagnosed with Stage 3 kidney disease, which is approximately 47 years after service, and which does not support a finding that the kidney disability had its onset in service. In the March 2018 VA examination report, the examiner opined that the Veteran's kidney disability was less likely than not incurred in or otherwise related to service. The examiner explained that the Veteran's service treatment records did not support complaints or treatment related to the kidney. The examiner reported that although the Veteran's medical care during service was poorly managed, the Veteran's kidney disability cannot be related to his in-service medical issues. In light of the VA examiner's review of the Veteran's medical history, his analysis of the Veteran's current disability in comparison to the Veteran's service treatment records, and his comments regarding the quality of the Veteran's medical care during service, the Board affords this opinion probative value and finds that it is evidence against a finding that the kidney disability is related to service. In a June 2018 VA treatment record, the Veteran stated that although he contended that his kidney problems were due to exposure to contaminated water at Camp Lejeune, his nephrologist did not provide an opinion. This does not support that the Veteran's kidney disability is incurred in or otherwise related to service, to include service at Camp Lejeune. With regard to the Veteran's contention that his kidney disability is due to service at Camp Lejeune, as discussed above, the evidence is persuasively against a finding that the Veteran had the minimum requisite service for presumptive service connection due to service at Camp Lejeune. While kidney cancer is a presumptive disease related to exposure to contaminated water, Stage 4 kidney disease is not a presumptive disease due to exposure to contaminated water at Camp Lejeune, and the evidence does not support that the Veteran's kidney disability is directly caused by the Veteran's service at Camp Lejeune. As to presumptive service connection for a chronic disease, the Board finds that the Veteran did not incur an event, injury, or disease related to his current kidney disability in service and that his kidney disability did not manifest during service or within one year of separation from service. Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There were no complaints, diagnosis, or treatment for this disorder for approximately 47 years following service discharge until the Veteran was diagnosed with a kidney disability in November 2017. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 47 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. While the Veteran alleges that the kidney disability is related to service, he is not competent to attribute the kidney disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the kidney disability and service, and the nexus element of a service-connection claim is not met. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for kidney disability is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, 21 F.4th 776. 4. Entitlement to service connection for a urinary disability, other than a kidney disability, to include as being due to contaminated water at Camp Lejeune, In a December 2017 VA Form 21-4138, Statement in Support of Claim, the Veteran contended that his urinary disability is due to his service at Camp Lejeune. At the July 2021 Board hearing, the Veteran testified he experiences difficulty with emptying his bladder and frequent urination. The Veteran stated that he experiences urinary incontinence. The Veteran stated that these problems are a source of embarrassment for him. The question for the Board as to this claim 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 disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for service connection to be established, there needs to be competent evidence of a current disability. The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against a finding that the Veteran has a current urinary disability, separate from the kidney disability, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). A November 2017 VA treatment record shows the Veteran complained of dark and foul-smelling urine. He was referred for a nephrology consultation for his kidney disability. This evidence establishes that this symptom is related to the Veteran's kidney disability. In the March 2018 VA examination report for the Veteran's kidney disability, the examiner documented that the Veteran reported that over the last year his urine had changed in color. However, the examiner noted that the November 2017 urinalysis was normal. The examiner wrote that the Veteran does not have a history of recurrent symptomatic urinary tract infections. This evidence is against a finding of a current urinary disability that is separate from the kidney disease. A June 2018 VA treatment record shows the Veteran reported that he had no urinary problems. This evidence establishes that the Veteran does not have a diagnosis of a urinary disability. With regard to the Veteran's statement that he experiences urinary incontinence twice a day, has other problems with urination throughout the day, and experiences frequent urination at night, the Board affords more probative weight to the clinical findings documented within the Veteran's VA treatment records that do not document these symptoms. If the Veteran experienced these symptoms, he would have reported them in the context of seeking medical treatment for other problems with his urine. Instead, the Veteran denied experiencing urinary problems, as documented in the June 2018 VA treatment record. Accordingly, the Board finds that the Veteran's statements of a urinary disability separate from his kidney disease are not credible. The Board concludes that the evidence is persuasively against a finding that the Veteran has a current urinary disability separate from the kidney disease, to include symptoms that cause functional impairment that affects earning capacity, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). As stated above, the VA treatment records from June 2017 to November 2018 do not support a current urinary disability, again, separate from the kidney disease, to include symptoms that cause functional impairment that affects earning capacity. The affirmative denial of urinary symptoms is evidence against the claim for service connection for a urinary disability. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for a urinary disability, separate from the kidney disease, is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, 21 F.4th 776. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.