09-33 868
09-33 868
| Board of Vet. App. | Jul 6, 2017Background
- Veteran served in the Marine Corps from July 1977 to July 1981 and was stationed at Camp Lejeune during the relevant period (presumed exposure to contaminated water).
- Claims on appeal: service connection for coronary artery disease (CAD), diabetes mellitus, and an intestinal disability (benign colon polyp), each asserted as caused by Camp Lejeune water exposure; and an increased initial rating for a service‑connected right shoulder disability (periods: 7/25/2006–6/15/2011 and 8/1/2011–10/23/2015).
- VA development included service treatment records, private and VA medical records, and multiple VA medical examinations (2012–2016) including a Camp Lejeune subject‑matter expert opinion.
- Examiners and the expert reviewed risks, medical literature, and the record; they concluded CAD, diabetes, and the benign polyp were not caused by service or Camp Lejeune exposure, citing veterans’ personal and family risk factors and lack of established association.
- For the right shoulder, objective testing showed limitation of motion (at worst to approximately 65–115 degrees depending on exam and repetitive use) with pain on motion and functional loss, but not to the degree required for ratings above 20 percent during the appealed periods.
- Board concluded VA satisfied notice and duty‑to‑assist and denied all four claims on the merits (preponderance of evidence against service connection for the three medical conditions; no higher shoulder rating warranted; extraschedular evaluation not appropriate).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for CAD (including Camp Lejeune exposure) | CAD was caused by in‑service exposure to contaminated water at Camp Lejeune | Medical evidence and examiners: no established causal link between Camp Lejeune contaminants and CAD; veteran has multiple non‑service risk factors | Denied — preponderance shows no service connection or causation by Camp Lejeune exposure |
| Service connection for diabetes mellitus (including Camp Lejeune exposure) | Diabetes caused by Camp Lejeune exposure | Examiners: diabetes not on Camp Lejeune presumptive list; veteran’s risk factors and timing favor non‑service etiology | Denied — no nexus to service or Camp Lejeune exposure |
| Service connection for intestinal disability / benign colon polyp (including Camp Lejeune exposure) | Benign polyp (claimed as colon cancer) caused by Camp Lejeune exposure | Examiners: benign polyps not among conditions linked to Camp Lejeune exposure; long latency and risk factors point away from service causation | Denied — no service connection or causal link to Camp Lejeune exposure |
| Increased initial rating >20% for right shoulder (pre‑6/16/2011 and 8/1/2011–10/23/2015) | Shoulder pain, limited ROM, weakness, flare‑ups and work impact warrant higher rating or extraschedular evaluation | Objective ROM and functional testing do not meet criteria for higher schedular ratings; no exceptional combined effect to require extraschedular rating | Denied — 20% rating adequately contemplates impairments; no extraschedular referral warranted |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VA notice obligations)
- Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir.) (elements for service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (chronic disease presumption/continuity of symptoms)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir.) (establishing direct causation apart from presumptions)
- Thun v. Peake, 22 Vet. App. 111 (Vet. App.) (extraschedular evaluation test)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit of the doubt rule)