Citation Nr: 22020004 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 14-31 830A DATE: April 4, 2022 ORDER Entitlement to service connection for diabetes mellitus type II (DM II), to include as due to contaminated water exposure at Camp Lejeune, is denied. FINDING OF FACT The evidence persuasively weighs against a finding that the Veteran's DM II began during active duty or active duty for training (ACDUTRA), was incurred within a year of active duty, or is otherwise related to any incident of service, to include contaminated water exposure at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for DM II, to include as due to contaminated water exposure at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1974 to July 1977. Subsequently, he served in the United States Marine Corps Reserve from July 1977 to June 1980, and in the United States Army Reserves Alabama Army National Guard from April 1984 until July 2011, including a single period of active duty from January 2003 to June 2003, and various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Veteran passed away in March 2016. The appellant, who is the Veteran's widow, was granted substitution as the claimant in January 2020. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the appellant and her son, testified at a video-hearing before the undersigned Veterans Law Judge, and a transcript of that hearing is of record. During the pendency of the appeal period, the RO granted service connection for pancreatic cancer and hypertension. Service connection having been awarded for these claims constitutes a full grant of the service connection benefit sought; thus, these issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Having reviewed the evidence of record, the Board finds there has been substantial compliance with its January 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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" the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). As a threshold matter, only "veterans" are entitled to VA compensation. 38 U.S.C. § 1131. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101; 38 C.F.R. § 3.1. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty; or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, in which occurred during such training. 38 U.S.C. §§ 101, 106; 38 C.F.R. § 3.6. Active duty for training includes full-time duty with the Reserves, or the National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32 (32 U.S.C. §§ 316, 502, 503, 504, or 505), or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(b) and 38 U.S.C. §§ 101(22)(C); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or National Guardsman's initial period of training. Inactive duty training includes service with the Reserve (other than full-time duty) that usually indicates weekend drills or training. 38 U.S.C. § 101(23)(A), 38 C.F.R. § 3.6(d). Inactive duty training also includes service in the National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32 (32 U.S.C. §§ 316, 502, 503, 504, or 505), or the prior corresponding provisions of law (including drill weekends under 32 U.S.C. § 502(a). See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6 (d). As noted above, the Veteran has confirmed active duty service from 1974 to July 1977 and from January 2003 to June 2003, but his service also included periodic times of ACDUTRA and INACDUTRA in the Reserves. Moreover, he was a civilian from June 1980 to April 1984. See Army National Guard Current Annual Statement. Additionally, a veteran with 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). If a 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), the enumerated diseases listed at 38 C.F.R. § 3.309 (f) shall be service-connected even though there is no record of such disease during service. See 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). In this case, the evidence of record confirms the Veteran's service at Camp Lejeune during a period of conceded exposure to contaminated drinking water. However, as for the theory of entitlement advanced by the appellant (that is, due to contaminated water at Camp LeJeune), diabetes is not among the diseases listed at 38 C.F.R. § 3.309(f), so service connection under the presumptive provisions of 38 C.F.R. § 3.309(f) is not possible. This, however, does not "preclude or authorize the VA to preclude the veteran from proving actual direct causation if the veteran is able to do so." See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (holding that "the presumptive provisions are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. The list... while an exclusive catalogue of maladies triggering presumptive service connection, is not the only means of showing service connection. Veterans retain the opportunity to show direct service connection by establishing direct actual causation."). In addition to the presumptions specifically related to Camp Lejeune, service connection may also be established on a presumptive basis for certain "chronic diseases" listed in 38 C.F.R. § 3.309(a) where the evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.307; see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Diabetes mellitus constitutes as one of the "chronic" diseases listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Service connection may also be considered on a secondary basis pursuant to 38 C.F.R. § 3.310. The evidence must demonstrate an etiological relationship between a service-connected disability and the condition said to be proximately due to or the result of the service-connected disability. See Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service-connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for DM II is denied The appellant attributes the Veteran's DM II to his exposure to contaminated water at Camp Lejeune and contends that the Veteran likely had symptoms as early as during his active duty period, even though he did not seek treatment until later. Prior to passing away, the Veteran contended that his DM occurred during his inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) training while serving in the Army National Guard. He also stated that his DM was initially found during a physical health assessment while on duty and that he started noticing symptoms of diabetes during his inactive drill periods. The Board finds that the persuasive evidence of record weighs heavily against the claim, and the appeal must be denied. Initially, the evidence of record confirms diagnosis of DM II prior to the Veteran's death. The Veteran's service treatment records are silent as to any complaints, diagnosis, or treatment relating to DM II. His July 1977 separation examination shows all clinically normal condition, except an unrelated "marks and scars." In this case, it is important to note that the matter is further complicated in this case, because after July 1977, he entered the Reserves the next day until July 2011 (in the United States Marine Corps from July 1977 to April 1944, and in the United States Army Reserves Alabama Army National Guard from April 1984 until July 2011). Other than a single period of active duty from January 2003 to June 2003 (and also excluding from June 1980 to April 1984, where he took a civilian break, and from May 1988 to May 1989, where he had an inactive National Guard period), it appears his subsequent service in the Reserves from July 1977 included various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Veteran's physical evaluation proceeding (PEB) dated September 24, 2009, for "ARNGUS-troop/unit/active drilling member" shows "fit for duty within limitations of profile. Is referred for DM controlled by meds. This does not interfere with the performance of his duties. the profile permits performance of an alternate APFT." Although it is not entirely clear whether the Veteran's service on this date was ACDUTRA or INACDUTRA, there is no indication in his personnel records that he ever received a line of duty determination for a specific DM-related injury. The Veteran also did not state otherwise prior to passing away. The pertinent inquiry, here, then is whether the DM II that the Veteran had prior to passing away was likely incurred in or attributable to a period of active duty or a period of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010); 38 U.S.C. § 101 (24). As for the inquiry as to whether the Veteran's DM II was likely incurred in or attributable to a period of active duty, the Board also points out that the Veteran's exposure to contaminated drinking water during his service at Camp Lejeune has already been conceded by the Board. However, as noted earlier, DM II is not presumptively related to exposure to contaminated water at Camp Lejeune. Nonetheless, the law still requires consideration of direct service connection where presumptive service connection is in applicable. Combee, 34 F.3d 1039. There are two medical nexus opinions pertaining to the Veteran's alleged DM II conditionJune 2021 and December 2021 VA medical nexus opinions. A June 2021 VA medical opinion provides that it is less likely as not that the Veteran's DM II had its onset in or is otherwise causally related to service, to include his exposure to contaminated water at Camp Lejeune. The examiner attributed the Veteran's DM II to various non-service-related risk factors, to include weight gain and decreased physical activity, and the examiner emphasized the prevalence of impaired glucose and DM II in the States in the past two decades. Even after acknowledging the Veteran's presumed exposure to contaminated water at Camp Lejeune and reviewing the general medical literature and epidemiological studies related to veterans exposed to contaminated water at Camp Lejeune, the examiner indicated there is no conclusive studies showing a medical nexus between such exposure and DM II. In December 2021, another VA medical nexus opinion was obtained by the RO, addressing negative secondary service connection between the Veteran's recently service-connected pancreatic cancer and DM II (both causation and aggravation for secondary service connection). While DM II was noted to be a risk factor for developing pancreatic cancer, pancreatic cancer was not found to be a risk factor for causing or aggravating DM II. The examiner further emphasized that the Veteran's DM II was diagnosed years prior to the diagnosis of pancreatic cancer. There is no other medical nexus opinion of record. His VA and private treatment records merely list diagnosis and treatment provided for DM II and do not otherwise provide any pertinent information. The Board assigns a high probative value to the June 2021 and December 2021 VA medical opinions, as these were furnished after extensive review of all pertinent records, corroborated by concrete factual findings. The Board finds that the weight of the competent and credible evidence also does not establish chronic and continuous symptoms of DM II in service or continuously after service. Evidence does not show, and neither the Veteran nor the appellant contended, that his hypertension was noted as chronic in service, or that it manifested to a compensable degree within one year after his separation from service. While the Veteran indicated in his VA Form 21-526 that he was treated for DM from January 2003 and onward, the Veteran did not otherwise contend, prior to his death, that he had continuous symptoms of DM II since service. The evidence of record did not show a diagnosis of DM in 2003; in contrast, the evidence of record shows that he was first diagnosed with diabetes as of November 2009, outside a period of confirmed active duty or ACDUTRA. Although the Veteran had various periods of ACDUTRA throughout this time period, there is no indication that he was first diagnosed with diabetes or, said another way, first incurred diabetes, during a period of active duty or ACDUTRA. Indeed, there is no line of duty determination, and the records diagnosing the Veteran with diabetes are not military records, they suggest the condition was diagnosed outside of his military service. See also Smith, 24 Vet. App. 40 (2010) (generally explaining that when a veteran's service consists of numerous periods of ACDUTRA or INACDUTRA, he cannot be presumed to have entered each period in sound condition unless he was given unique entrance examinations for each period of ACDUTRA and INACDUTRA otherwise statutory and regulatory presumptions do not apply). In conclusion, the Board has considered the circumstances of the Veteran's service and recognizes his in-service contaminated water exposure at Camp Lejeune. However, based on the lay evidence and the medical evidence of record, the Board finds that the Veteran's current DM II did not begin during active service or manifest, to a compensable degree, within one year of separation from active service, or is secondary to service-connected pancreatic cancer; and while the Board is cognizant of the September 2009 PEB finding that the Veteran "Is referred for DM controlled by meds," there is no line of duty determination suggesting that the Veteran's DM II developed in the line of duty during a period of ACDUTRA. Smith, 24 Vet. App. 40. Rather it appears that as of September 2009, the Veteran already had DM II. (Continued on the next page) The Board also considered the appellant's contention that the Veteran's exposure to contaminated water at Camp Lejeune caused his DM II. While a lay person is competent to report any symptoms he experiences or observes, s/he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his or her condition. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the appellant's contention is insufficient to provide the requisite nexus. The specific issue in this case, the potential relationship between diabetes and contaminated water exposure is complex in nature and falls outside the realm of common knowledge of a lay person. Moreover, it is outweighed by the findings to the contrary by the VA examiner, a medical professional and subject matter expert who considered the pertinent evidence of record and opined against such a relationship, and also provided an in-depth explanation citing to various other potential risk factors. In light of these findings, the most persuasive evidence of record is against the claim, and the benefit of the doubt rule not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claim is denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.