judge_norm: S C KREMBS

condition: eye

benefit: smc

condition: erectile

text:
��Citation Nr: 18102000

Decision Date: 05/11/18	Archive Date: 05/11/18

DOCKET NO. 12-25 956

DATE:	May 11, 2018

ORDER

Service connection for a bilateral eye disorder, claimed as dry eye, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is denied.

REMANDED

The issue of entitlement to service connection for the residuals of the removal of testicular lesions, with groin pain, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is remanded for additional development.

REFERRED

The issues of entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation based on loss of use of a creative organ have been raised by the record, including in a December 2011 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. � 19.9(b).

FINDING OF FACT

The Veteran s current bilateral eye disorder first manifested many years after his separation from service and is unrelated to any incident therein, including his exposure to contaminated water at Camp Lejeune, North Carolina.

CONCLUSION OF LAW

The criteria for service connection for a bilateral eye disorder, claimed as dry eye, have not been met.  38 U.S.C. �� 1112, 1131, 5107(b); 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 from October 1978 to October 1982.  This claim is before the Board following his appeal of an April 2010 rating decision.

In September 2015, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge.  In April 2016, the Board remanded his claim for further evidentiary development.  That development has been substantially completed with respect to the issue that is denied herein.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board s remand instructions were substantially complied with), aff d, Dyment v. Principi, 287 F.3d 1377 (2002).

Entitlement to service connection for an eye disorder

The Veteran is seeking service connection for his current bilateral eye disorder, which has been characterized by clinicians as eyelid twitching and dry eye.  See October 2016 VA Eye H & P Note (diagnosing myokymia of the bilateral upper and lower eyelids, possibly exacerbated by irritation from dry eye syndrome).  He asserts that the disorder was caused by his confirmed exposure to contaminated water while stationed at Camp Lejeune during service.  Unfortunately, following review of the record, the Board finds that service connection for a bilateral eye disorder is not warranted.  See 38 U.S.C. �� 1112, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303, 3.307, 3.309.

Here, a current disability and an in-service event (exposure to contaminated water) have been established.  The Veteran s bilateral eye disorder, however, is not a condition for which service connection may be granted on a presumptive basis based on his exposure to contaminants in the Camp Lejeune water supply, see 38 C.F.R. � 3.309(f).  In addition, the evidence does not suggest, and the Veteran does not assert, that his disability was incurred in service or is related to service for reasons other than exposure to the Camp Lejeune water contaminants.  As such, the sole question before the Board is whether his current eye disability was, in fact, caused by the exposure to contaminated water.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Board finds a negative medical opinion issued by a VA physician in September 2016 to be the most probative evidence of record addressing the foregoing question.  The physician who issued that opinion concluded, citing to supporting medical literature, that the health effects linked to the Camp Lejeune toxins did not include myokymia, dry eyes, eye allergies, or related conditions.  She also noted that the Veteran s eye conditions had been attributed by a treating specialist to seasonal and localized allergic irritation (i.e., allergens in his immediate post-service surroundings), see December 2010 VA Eye H & P Note, and further noted that there was no indication that the Veteran had experienced any increase in those symptoms during service.  The VA physician s opinion is highly probative, because it was based on an accurate medical history and includes an explanation with clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

In reaching the foregoing conclusion, the Board initially notes that the Veteran has asserted that a nexus opinion issued in December 2009 by a private physician provided positive support for multiple service connection claims, including this one.  However, the physician who issued that opinion noted only that the Camp Lejeune water contaminants had been shown to cause a  variety of disorders  and damage a  variety of organ systems.   He did not acknowledge the Veteran s eye disorder or discuss whether it was caused by those contaminants.  The physician went on to discuss a causal relationship between the Camp Lejeune water contaminants and psychiatric disorders, only.  Thus, as the disability at issue was not addressed, the December 2009 opinion is not probative in this context.

Turning to the positive evidence that does address eye disorders, the Board does not find that it creates a state of relative equipoise, such that affording the Veteran the benefit of the doubt is warranted.

In that regard, the Board acknowledges the Veteran s assertion, in December 2011 correspondence, that a cosmetic surgeon who operated on his lower eyelids in 1990 told him that his dry eye syndrome  was possibly environmental, toxins exposure, family heredity, or a combination  of those factors.  However, the equivocal nature of the opinion the Veteran has described renders it insufficient to establish service connection.  See Bostain v. West, 11 Vet. App. 124, 127-28 (1998).

The Board next acknowledges that the Veteran s December 2011 correspondence also included his own unequivocal opinion that, given his lack of a family history of his diagnosed eye disorder, and given the timeline of events and the potential health effects of trichloroethylene (TCE) one of the contaminants present in the Camp Lejeune water it was at least as likely as not that his exposure to toxins at Camp Lejeune caused his eye disorder.  Notably, the Veteran was a medical corpsman in service.  As a result, he possesses medical knowledge beyond that of a layperson.  However, the Board accords greater probative value to the September 2016 VA physician s opinion than to the Veteran s opinion, due to the physician s more extensive medical training and her documented experience in issuing etiological opinions on the specific subject matter at issue.  See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); September 2016 VA Compensation and Pension Examination Report (noting that the VA physician is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project).  Moreover, the Veteran indicated during his September 2015 Board hearing that he was not sure whether his eye condition was caused by toxin exposure.  See Board Hearing Transcript at 10.  That statement decreases the probative value of his earlier opinion.

Finally, the Board acknowledges that the Veteran has submitted various articles in support of his claim.  Articles or treatises can provide important support if they discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion.  Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998).  Here, however, only two of the submitted articles address eye symptoms, and both of those articles do so in contexts that do not apply to this claim.  Specifically, one of the articles a public health statement issued for TCE by the Agency for Toxic Substances and Disease Registry (ATSDR) discusses  eye defects  in the context of reported birth defects.  The other article notes that TCE can cause swelling around the eyes in the context of kidney changes not as a stand-alone condition.

In short, for the reasons just discussed, the evidence indicating that the Veteran s current eye disorder is not at least as likely as not related to his exposure to contaminated water while stationed at Camp Lejeune is more probative than the evidence indicating that it is.  Thus, the preponderance of the evidence is against his claim, and it must be denied.

REMANDED ISSUE

The issue of entitlement to service connection for the residuals of the removal of testicular lesions, with groin pain, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina, is remanded for additional development.

The Board previously instructed the AOJ to schedule the Veteran for another VA examination in connection with his claim of entitlement to service connection for the residuals of the removal of testicular lesions.  In September 2016, an additional medical opinion, but not an examination, was obtained.

The Board finds that a VA examination is still needed, because the nature of the Veteran s claimed condition (whether it affects his skin or is wholly internal) remains somewhat unclear, and because the VA physician who issued the September 2016 opinion did not address all of the relevant diagnoses of record.  See September 2016 VA Compensation and Pension Examination Report (addressing the etiology of testicular microlithiasis and calcinosis of the scrotum, only, and referencing a dermatology journal when discussing calcinosis of the scrotum); May 2011 letter from Dr. S. (characterizing the Veteran s  scrotal lesions  as skin changes); July 2010 VA scrotal ultrasound (diagnosing a varicocele in addition to calcifications in the bilateral tunica and right testis).

The matter is REMANDED for the following action:

Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any testicular and/or scrotal conditions.  Following review of the claims file and examination of the Veteran, the examiner should respond to the following:

(a.) Please identify all current testicular and/or scrotal conditions.  In doing so, please (1) discuss the diagnoses of record, including but not limited to a varicocele, microlithiasis/calcifications in the testes and tunica, and  scrotal lesions;  and (2) clarify whether the calcinosis of the scrotum discussed in the September 2016 VA Compensation and Pension Examination Report is a cutaneous or subcutaneous condition.

For any diagnoses of record that cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed.

In determining the Veteran s diagnoses, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection (in October 2009).  Please note that, although the Veteran may not meet the criteria for a certain diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a  current  diagnosis.

(b.) For each diagnosed testicular and/or scrotal condition, please state whether it is it at least as likely as not (50 percent probability or more) that the condition is related to the Veteran s conceded exposure to contaminants in the water supply at Camp Lejeune.  Please explain why or why not, specifically discussing (1) the May 2011 opinion provided by Dr. S. and (2) the internet article (accessed on 11/28/2011) asserting that vinyl chloride can damage the sperm and testes.

Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions.

A complete rationale for the opinions rendered must be provided.  If you cannot provide the requested opinions without resorting to speculation, please state why that is so.

S. C. KREMBS

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	L. Stepanick, Counsel