Citation Nr: 22016805 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-47 567 DATE: March 23, 2022 ORDER Entitlement to service connection for arthritis of the left upper extremity due to exposure to contaminated water at Camp Lejeune is denied. Entitlement to service connection for arthritis of the right upper extremity due to exposure to contaminated water at Camp Lejeune is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. FINDING OF FACT At no time during, or prior to, the pendency of the claims did the Veteran have current diagnoses of arthritis of the left upper extremity and/or right upper extremity, or persistent or current symptoms of such disorders. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis of the left upper extremity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for arthritis of the right upper extremity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1974 to August 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Columbia, South Carolina. In his September 2017 substantive appeal, the Veteran indicated he wanted a Board hearing with a Veterans Law Judge. In an October 2021 correspondence, VA informed the Veteran that the videoconference hearing was scheduled for October 2021. However, in an October 2021 VA Form 21-4138 Statement in Support of Claim, the Veteran withdrew his request for a hearing before a Veterans Law Judge. As the Veteran was properly notified of the time, date, and location of his scheduled hearing and withdrew his request, his hearing request is deemed withdrawn. Service Connection Arthritis of the Bilateral Upper Extremities The Veteran seeks entitlement to service connection for arthritis of the left upper extremity and right upper extremity. Specifically, the Veteran asserts that his arthritis is due to exposure to the contaminated water at Camp Lejeune. See VA Form 21-526EZ, Fully Developed Claim, September 2, 2015. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases such as arthritis to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Turning to the evidence, service treatment records are unremarkable for complaints of, treatment for, or diagnoses of any condition related to arthritis of either of the bilateral upper extremities. Post-service treatment records are also unremarkable for complaints of, treatment for, or diagnoses of any condition related to arthritis of either of the bilateral upper extremities. In the instant case, the probative evidence of record fails to demonstrate current diagnoses of bilateral upper extremity arthritis at any time during the appeal period, and there is no probative evidence of recent diagnosis of such disorders prior to the Veteran's claims. McClain v. Nicholson, supra; Romanowsky v. Shinseki, supra. The Board has considered the evidence in light of the case of Saunders v. Wilkie in which the United States Court of Appeals for the Federal Circuit addressed "the legal issue [of] whether pain without an accompanying pathology can constitute a "disability" under [38 U.S.C.] § 1110." 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). The Federal Circuit held that the Veterans Court erred "as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a 'disability' under [38 U.S.C.] § 1131, because pain in the absence of a presently-diagnosed condition can cause functional impairment." The Federal Circuit "conclude[d] that pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Further, the Federal Circuit held that "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that pain reaches the level of a functional impairment of earning capacity." In this case, there is no evidence or allegation that the Veteran suffered from separately diagnosed arthritis of either of the bilateral upper extremities that was productive of functional impairment. To that end, the record contains no evidence or allegation that the Veteran experienced functional impairment associated with bilateral upper extremity arthritis. Notably, neither the Veteran nor his representative have asserted the Veteran has a current diagnosis related to bilateral upper extremity arthritis. Rather, the Veteran merely asserted that claimed bilateral upper extremity arthritis was due to his exposure to the contaminated water at Camp Lejeune without further elaboration. In addition, the record does not reflect, and the Veteran did not allege, that he suffered from impairment of earning capacity due to his claimed bilateral upper extremity arthritis that is of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of bilateral upper extremity arthritis or other arthritic impairment, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In the instant case, there is no suggestion that the Veteran has developed an expertise in the diagnosis of arthritis. Therefore, as they do not have the appropriate medical training and expertise to competently diagnose bilateral upper extremity arthritis, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Thus, where, as here, the probative evidence indicates that the Veteran does not have current diagnosis of bilateral upper extremity arthritis for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that the Veteran has not been afforded a VA examination addressing his claimed bilateral upper extremity arthritis. However, the Board finds that such an examination is not required. In this regard, in determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As noted above, the service treatment records are otherwise negative for complaints, treatments or diagnoses related to arthritis of either of the bilateral upper extremities. Further, the evidence does not indicate that the Veteran has a current diagnosis of bilateral upper extremity arthritis. See McLendon v. Nicholson, supra. In this regard, while the Veteran himself has advanced such a theory, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide these claims. In summary, the controlling question in this case is answered in the negative. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that service connection presupposes a current diagnosis of the condition claimed, to at least confirm the veteran has it; without this minimum level of proof, there can be no valid claim). Therefore, as the evidence of record shows that the Veteran does not have a current diagnosis of arthritis of the left and right upper extremities, the Board concludes that service connection is not warranted, and no further discussion of the remaining elements is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence is against the Veteran's claims for service connection for arthritis of the left upper extremity and arthritis of the right upper extremity. As such, that doctrine is not applicable in the instant appeals, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Service Connection Claims Peripheral Neuropathy The Veteran contends that he has peripheral neuropathy of the bilateral upper and bilateral lower extremities that is etiologically related to his active service. In this regard, he asserts that his peripheral neuropathy is due to a gunshot wound and/or due to exposure to the contaminated water at Camp Lejeune. See VA Form 21-4138 Statement in Support of Claim, October 1, 2010; see also VA Form 21-526EZ, Fully Developed Claim, September 8, 2015. The Veteran's exposure to contaminated water at Camp Lejeune was conceded by the AOJ in a December 2015 rating decision. The Veteran was afforded the directed VA general medical examination in September 2010. At that time, the VA examiner found the Veteran had peripheral neuropathy, Charcot-Marie Tooth disease, and carpal tunnel syndrome bilaterally. The VA examiner noted the Veteran sustained a gunshot wound in 2002 and was stabbed in his chest in 1992. An opinion as to the nature and etiology of the Veteran's claims for peripheral neuropathy of the bilateral upper and bilateral lower extremities was not rendered at this time. Accordingly, the Board finds the September 2010 VA examination opinions incomplete to decide the claims. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In sum, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left lower extremity, and peripheral neuropathy of the right lower extremity until adequate VA examination reports are obtained. On remand, the AOJ should obtain adequate medical opinions from a qualified medical professional. The examiner should review the claims file, including the medical evidence. After completing his or her review of the records, the examiner should provide opinions addressing the statements of the Veteran regarding the nature and etiology of his claimed bilateral upper and bilateral lower extremity peripheral neuropathy. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently diagnosed peripheral neuropathy of the bilateral upper and bilateral lower extremities. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral upper and bilateral lower extremity peripheral neuropathy had its onset during any period of service, or is otherwise related to such period of service, to include any exposure to herbicide agents and/or contaminated water at Camp Lejeune? A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, 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 medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.