Citation Nr: 22018085 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-36 759 DATE: March 28, 2022 ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for a prostate condition is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's diabetes mellitus, type II, began during active service or within one year of discharge, or that it is otherwise related to his military service, to specifically include his exposure to contaminants in the water supply at Camp Lejeune. 2. The evidence of record persuasively weighs against finding that the Veteran's prostate condition began during active service, or that it is otherwise related to his military service, to specifically include his exposure to contaminants in the water supply at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for prostate condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from August 1967 to November 1968, to include service at Camp Lejeune. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1968 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran's appeal was remanded for further development by the Board in May 2018, which has since been completed. The appeal has been returned to the Board for appellate review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Certain diseases shall be service connected if the Veteran was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of 38 C.F.R. § 3.307(a)(7). 38 C.F.R. § 3.309(f). Although diabetes mellitus, type II, and prostate conditions are not listed as diseases presumptively associated with exposure to the contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection for a disease averred to be related to exposure to the contaminated water at Camp Lejeune, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). For chronic diseases listed in 38 C.F.R. § 3.309(a), including, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran contends that his current diagnoses of diabetes mellitus, type II, and a prostate condition are associated with exposure to contaminants in the water supply at Camp Lejeune. See August 2013 Statement in Support of Claim. Alternatively, the Veteran contends that both conditions were incurred within one year of discharge, which he asserts would be evidenced by treatment records from the Manhattan VA Medical Center and St. Albans. See October 2014 VA Form 9. The question for the Board is whether the Veteran has current disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of diabetes mellitus, type II, and a prostate condition (including an enlarged prostate and surgical residuals of a prostatectomy), and evidence shows that the Veteran has more than thirty days of eligible service at Camp Lejeune, the evidence of record persuasively weighs against finding that the Veteran's diagnoses of diabetes mellitus, type II, and a prostate condition began during service or are otherwise related to an in-service injury, event, or disease, to specifically include on a presumptive basis as associated with exposure to contaminants in the water supply at Camp Lejeune, and as chronic within one year of discharge. Here, the Veteran's claims file shows that he was afforded a general medical examination by VA in October 1969, eleven months following his discharge. The examiner indicated that the Veteran experienced no problems with his endocrine system or with his genito-urinary system. Additionally, records alluded to by the Veteran (or in close proximity to records alluded to by the Veteran) failed to show diagnoses for diabetes mellitus, type II, or a prostate condition. The Manhattan VA Medical Center has responded that there were no indicated records for the Veteran during the 1968-1970 time period; the Manhattan VA Medical Center provided records from 1973 to 1979, which failed to show diagnoses for diabetes mellitus, type II, or a prostate condition. St. Alban's Naval Hospital reported that no records existed for 1969; St. Alban's Naval Hospital provided records from 1968, which also failed to show diagnoses for diabetes mellitus, type II, or a prostate condition. In pertinent part, a July 1968 record from St. Alban's Naval Hospital states: "On physical examination, at time of admission here, all findings were normal, except those as related to the right hand and left shoulder." Records searches from the National Personnel Records Center also failed to return the records alluded to by the Veteran. See January 2019 Request for Information; Military Personnel Records, provided in December 2021. The Veteran has also stated he had been treated from 1968 to the present by Dr. J.P, at the Bronx VA Medical Center for, among others, diabetes and a prostate condition. See May 2012 Release for Information. A request for these records was initiated by VA in October 2012, and again in April 2013. Although VA was only able to obtain treatment records from December 1998 through April 2013, the Veteran requested that his claim be processed with the current VA treatment records. See May 2013 Report of General Information. Notably, also of record is a VA treatment record from August 1993 from the Bronx VA Medical Center, which fails to mention any diagnoses for diabetes mellitus or a prostate condition in the review of symptoms section. The Board notes that the Veteran stated he had been treated from 1978 to the present by Dr. P.B. for, among others, diabetes and a prostate condition. See May 2012 Release for Information. Records provided by Dr. P.B. stated: "Please be informed that [the Veteran] has been seen in this office since 1993" and otherwise failed to demonstrate treatment by Dr. P.B. for diabetes mellitus, type II, or a prostate condition. See September 2012 Statement from Dr. P.B. A September 2012 notification letter from VA references the two attempts that had been made to procure records from Dr. P.B., thereby exhausting reasonable efforts to obtain additional records from Dr. P.B. related to treatment for diabetes mellitus, type II, or a prostate condition. In contrast to the assertions of the Veteran, the earliest reference date for a diagnosis of diabetes mellitus, type II, is April 2001. See, e.g., August 2014 VA Active Problem List; but see December 2004 Primary Care Follow Up Visit ("55 M with DM x 1 year."). The earliest reference date for a prostate condition diagnosis is December 1998. See December 1998 VA Physical Therapy Initial Evaluation Note ("Meds for prostate and shld pain."). As diabetes mellitus, Type II, and prostate conditions are not amongst the conditions eligible for presumptive service connection associated with exposure to contaminants in the water supply at Camp Lejeune, and as there is no competent evidence linking the Veteran's conditions to such contaminants, the Veteran's claims for service connection cannot be granted on this basis. 38 C.F.R. § 3.307(a)(7); 38 C.F.R. § 3.309(f); see also Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Additionally, as there is no evidence that the Veteran's diabetes mellitus, Type II, developed to a compensable degree within one year of discharge, the Veteran's claim for service connection on a presumptive chronic basis cannot be granted for diabetes mellitus either. The Board again notes that prostate conditions are not amongst those for which presumptive chronic service connection may be granted. The Board also points out that the Veteran's credibility is of limited value as to the dates upon which he has received medical treatment, as at least one of his statements to this regard (that he began receiving treatment from Dr. P.B. in 1978) has been significantly called into question by his treating physician (Dr. P.B. stated that he began seeing the Veteran in 1993). See May 2012 Release for Information; See September 2012 Statement from Dr. P.B. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board notes that the Veteran has not been afforded a VA examination to address whether his diabetes mellitus and prostate condition are associated with exposure to contaminants in the water supply at Camp Lejeune. In this case there is no competent or credible indication that the Veteran's diabetes mellitus and prostate condition may be related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's mere contention that his diabetes mellitus and prostate condition are associated with exposure to contaminants in the water supply at Camp Lejeune is insufficient to trigger the duty to obtain an examination, much less to establish a link. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Absent competent and credible evidence linking the Veteran's diabetes mellitus, Type II and prostate condition to exposure to contaminants in the water supply at Camp Lejeune, or demonstrating that his diabetes mellitus had its onset within one year of discharge, the evidence is against the claims. As such, reasonable doubt does not arise, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, Associate 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.