Citation Nr: A24029749 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 240419-434202 DATE: June 6, 2024 ORDER Entitlement to service connection for hypercholesterolemia, to include as due to exposure to contaminated water at Camp Lejeune is denied. Entitlement to service connection for hypertension, to include as due to exposure to contaminated water at Camp Lejeune is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to contaminated water at Camp Lejeune is denied. Entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune is denied. Entitlement to service connection for liver cancer, to include as due to exposure to contaminated water at Camp Lejeune is denied. FINDINGS OF FACT 1. The Veteran's claimed hypercholesterolemia is not a disability for which service-connected compensation may be awarded. 2. The Veteran, without good cause presented, failed to attend VA examinations for his claims for service connection for hypertension, GERD, and colon and liver cancers. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypercholesterolemia, to include as due to exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655. 2. The criteria for entitlement to service connection for hypertension, to include as due to exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655. 3. The criteria for entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655. 4. The criteria for entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655. 5. The criteria for entitlement to service connection for liver cancer, to include as due to exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Marine Corps from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2023 by a Department of Veterans Affairs (VA) Regional Office (RO). Given the date of the rating decision on appeal, this appeal is governed by the modernized review system, also known as the AMA. In May 2024, the Veteran filed a VA Form 10182 Notice of Disagreement (NOD) and selected the Direct Review Lane in which the Veteran opted not to have a Board hearing or submit additional evidence in support of the appeal. As the November 2023 rating decision found that new and relevant evidence had been received and the RO readjudicated the claims, the issue of whether new nad relevant evidence has been received to warrant readjudication is not before the Board. The Board may only consider all evidence of record at the time of the November 2023 rating decision. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. (Continued on next page) Service Connection 1. Entitlement to service connection for hypercholesterolemia, to include as due to exposure to contaminated water at Camp Lejeune. 2. Entitlement to service connection for hypertension, to include as due to exposure to contaminated water at Camp Lejeune. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to contaminated water at Camp Lejeune. 4. Entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune. 5. Entitlement to service connection for liver cancer, to include as due to exposure to contaminated water at Camp Lejeune. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hypertension, colon cancer, and liver cancer, may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The regulations at 38 C.F.R. §§ 3.307 and 3.309 were amended to provide a presumption of service connection for certain diseases associated with contaminants in the base water supply at Camp Lejeune. See 82 FR 4173-4185 (January 13, 2017). The eight diseases presumptively associated with exposure to Camp Lejeune contaminated water (CLCW) 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. See 38 C.F.R. § 3.309(f). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible?for?determining whether the evidence supports the claim or is in approximate balance, with the veteran prevailing in either event, or whether the persuasive weight of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski,?1?Vet. App.?49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5?Vet. App.?60 (1993). The Veteran asserts that his claimed hypertension, hypercholesterolemia, colon cancer, liver cancer, and GERD are related to his active service, to include exposure to contaminated water while he was stationed at Camp Lejeune. In its November 2023 rating decision, the RO made a favorable finding that the Veteran was exposed to contaminated water during his military service at Camp Lejeune. Under the AMA, the Board is bound by favorable findings by the RO in the absence of clear and unmistakable error. See 38 C.F.R. § 3.104(c). Additionally, in its November 2023 rating decision, the RO also found that the Veteran had currently been diagnosed with GERD, hypertension, and hypercholesterolemia. At this point, having established the Veteran's in-service exposure to contaminated water and (for at least three of his claimed disabilities) evidence of a current disability, it is important to establish a timeline of the procedural history. In August 2022, the President signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). Among other changes, this law provided that Veterans who had toxic exposures during their service would be scheduled for VA examinations in service connection claims when their claimed disabilities were contented to be related to such toxic exposures (assuming that such disabilities were not presumptive). In March 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim. This Supplemental Claim included each of the five issues currently on appeal, and the Veteran noted on the claim that he was filing these claims pursuant to the PACT Act. In July 2023, the RO prepared a Toxic Exposure Risk Activity (TERA) memorandum, detailing the Veteran's in-service exposure to contaminated water at Camp Lejeune. Accordingly, the RO then began the process of scheduling the Veteran for examinations consistent with his claims and his toxic exposures. In August 2023, the Veteran contacted the private firm who would be performing his examinations. A report of contact noted that the Veteran "expressed concerns with attending their appointments" on account of COVID-19, and that the Veteran did not attend his scheduled examinations. These reports of contact reflect that the Veteran may have had the coronavirus at the time of his scheduled examinations. Accordingly, the RO then rescheduled the Veteran for his examinations in October 2023, some two months later. This time, the Veteran did not attend his scheduled examinations, nor did he provide a reason for not attending these examinations. The RO then denied these claims in a November 2023 rating decision. The Veteran filed his Notice of Disagreement to the Board in April 2024. Depending on the type of claim involved, VA regulations provide for different outcomes after a claimant fails to report for a VA examination without providing good cause as to why such an examination should be rescheduled. Pursuant to 38 C.F.R. § 3.655(b), when an examination "was scheduled in conjunction with . . . a supplemental claim for a benefit which was previously disallowed, . . . the claim shall be denied." That regulation governs the result here. While the Veteran provided good cause for not attending his initially scheduled examinations in August 2023, he did not provide any cause for missing his rescheduled examinations in October 2023. There is no evidence, and the claims file does not reflect, that the Veteran did not receive notice of these examinations. The Veteran also did not contact VA after the November 2023 rating decision or prior to filing his April 2024 Notice of Disagreement stating why these examinations should be rescheduled. In their May 2024 informal hearing presentation, the Veteran's representative argued that there was not any notification of the Veteran's missed VA examinations in the Veteran's claims file or documentation of any emails, letters, or phone calls to inform the Veteran of any pending VA examinations for the issues of on appeal. Again, however, there is no indication that the Veteran did not receive notice of the VA examinations. The Veteran's claims file reflects the same notification prior to his August 2023 examinations (for which he did provide good cause as to why he could not attend) as for his October 2023 examinations. Despite the contentions of the Veteran's representative, it is not clear why such notification prior to the August 2023 examinations were sufficient for the Veteran to be informed of their existence and to respond to the examiner regarding his current condition, but such notification would then not be sufficient for his rescheduled examinations. In the end, the Board acknowledges, but disagrees, with the representative's argument. In that same informal hearing presentation, the Veteran's representative also contended that his claimed GERD may be related to herbicide agent exposure or may be secondary to his service-connected bronchitis. As to the first argument, the Veteran has not been recognized as being in a location subject to presumptive herbicide agent exposure, and there is insufficient evidence to reach any conclusion on a facts found basis at this point. As to the second, the Veteran's representative did not point to evidence in the Veteran's claims file reflecting a secondary relationship, nor can the Board find competent evidence reflecting such. Further, with respect to both, arguments and contentions raised after the initial rating decision on appeal has been issued in the AMA context cannot create a duty to assist error, as such errors must have occurred prior to the rating decision being appealed. See 38 C.F.R. § 20.802. Finally, to the extent that the Veteran's GERD may be a secondary condition, that is information that may have been gleaned from an examination, but the Veteran did not attend his rescheduled examinations. Again, 38 C.F.R. § 3.655(b) compels the result here. The Veteran did not attend examinations scheduled in conjunction with the Supplemental Claim he filed in March 2023. Accordingly, his claims for service connection for hypertension, GERD, and liver and colon cancers must be denied. The Board omitted any discussion there of the Veteran's claim for service connection for hypercholesterolemia. The notification letters in the Veteran's file were clear that this claimed disability was not among those for which an examination and opinion were required, so it cannot be the case that the Veteran failed to attend a scheduled examination for that claim. That said, hypercholesterolemia is the medical term for high cholesterol, as that condition is defined as "excessive cholesterol in the blood." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 891 (32d ed. 2012). Here, the Board's reliance on a medical dictionary to define a term is not prejudicial to the Veteran. See, e.g., O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014) (referencing DORLAND'S for nature of and symptoms associated with a condition); 38 C.F.R. § 20.908(b). VA's position is that hypercholesterolemia and elevated cholesterol are laboratory findings and are not disabilities in and of themselves for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (explaining that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities and are, therefore, not appropriate entities for the rating schedule). To the extent that any argument could be raised that, following Saunders v. Wilkie, any previous adjudicatory treatment regarding the nature of high cholesterol should be revisited, there is no contention or evidence in this case that the Veteran's high cholesterol has resulted in any functional impairment. 886 F.3d 1356 (Fed. Cir. 2018) In this case, although treatment records reflect hypercholesterolemia, given the above definitions and position of VA with regard to the nature of hypercholesterolemia and elevated cholesterol, the Board finds that the condition for which the Veteran is claiming service connection is a laboratory finding that manifests itself only in laboratory test results. Tt is not a disability for which service connection can be granted. As such, service connection for hypercholesterolemia is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.