Javit v. Wilkie
| Decision Date | 22 January 2020 |
| Docket Number | 19-0513 |
| Parties | John M. Javit, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Nicholas L. Phinney, Esq. VA General Counsel (027)
Before MEREDITH, Judge.
The appellant, John M. Javit, through counsel appeals a December 31, 2018, Board of Veterans' Appeals (Board) decision that denied entitlement to disability compensation for amputation of toes on the left and right feet and peripheral neuropathy of the left and right feet, all including as a result of contaminated water exposure. Record (R.) at 7-18. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App 23, 25-26 (1990). For the following reasons, the Court will affirm the Board's decision.
The appellant served on active duty in the U.S. Marine Corps from March 1978 to March 1981. R. at 8072. His service treatment records reflect that, in September 1978, he was treated for a "small plant[a]r[] wart on [the right] heel"; there was "no infection but pain [was] noted when pressure [was] applied to [the] area"; and the clinician removed "skin on top of [the] core of [the] plant[a]r[] wart." R. at 8043.
According to VA medical records from April 1996, the appellant was "consuming about 3 to 4 cases of beer [and] 2 quarts of whiskey per week" and acknowledged that alcohol use "became [a] problem by age 16." R. at 8228. In January 1998, he was admitted to a VA hospital for detoxification; the physician noted that he had "a long history of chronic alcohol abuse," including, lately, drinking "about a case of beer a day," and diagnosed "[c]hronic alcohol abuse." R. at 7896-97; see R. at 7893. Private treatment records from 2012 and 2013 reflect complaints of a wound and callouses of his feet and a diagnosis of "[n]europathy [o]ther [s]pec[.] [i]diopathic [p]eripheral." R. at 8119; see R. at 8112-14, 8117-19, 8122-24.
The appellant filed a claim for disability compensation for peripheral neuropathy of both feet in March 2014. R. at 8108-09. VA medical records indicate that, later that year, he was diagnosed with gas gangrene of the left and right foot and had multiple toes amputated or resected. R. at 3935. A VA regional office subsequently denied disability compensation for amputated toes on each foot and bilateral peripheral neuropathy of the feet. R. at 3260-66, 3992-4000; see R. at 6588-93, 6604-10. The appellant filed a Notice of Disagreement and ultimately perfected an appeal to the Board. R. at 3099-101, 3252-54; see R. at 3104-29. In March 2018, the Board remanded the matters to afford him an examination to determine the nature and etiology of the claimed foot disabilities. R. at 3053-67. The Board specified that the examiner must opine whether his foot disabilities are the result of military service, including exposure to contaminated water at Camp Lejeune, North Carolina, and address "lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service." R. at 3065-66.
On August 13, 2018, a VA physician completed a Camp Lejeune Contaminated Water disability benefits questionnaire. R. at 180-84. The physician acknowledged that the appellant was diagnosed with bilateral peripheral neuropathy approximately 32 years after service but opined that it was less likely than not caused by the contaminated water "because it [was] almost certainly due to alcohol abuse instead." R. at 181. The physician noted that the appellant had "an extensive history of alcohol abuse with a weekly consumption of 3-4 cases of beer and 2 quarts of whiskey before quitting in 2001" and explained that "[l]ong-term, excessive consumption of alcoholic beverages commonly produces a peripheral neuropathy." Id. The physician further opined that the appellant's toe amputations were less likely than not caused by contaminated water "because it is almost certainly due to a combination of peripheral neuropathy and peripheral vascular disease instead." R. at 181-82. She explained that those conditions "led to multiple foot ulcers, which unfortunately became severely infected and required multiple amputations." R. at 182. In addition, the physician noted that she had undergone special training regarding the contaminated water at Camp Lejeune and was "familiar with the toxicology data and research pertinent to [Camp Lejeune contaminated water] from" multiple listed sources and medical literature in general. R. at 180.
Later that month, on August 24, the appellant underwent a VA examination. R. at 201-08. The examiner noted that the service treatment records were "a poor copy and not all information could be read" but that "the records are silent for any foot or neuropathy complaints or treatment." R. at 202; see R. at 204. She opined that it was less likely than not that his bilateral peripheral neuropathy was incurred in or caused by service, reasoning that the "rationale has been provided by an expert" on August 13, 2018, relating the condition to alcohol abuse. R. at 202. She further opined that it was less likely than not that his toe amputations were incurred in or caused by service, again referencing the rationale provided in the August 13, 2018, medical opinion. R. at 204-05. Finally, the examiner acknowledged that she was required to address the appellant's lay statements regarding the onset of his disability and any continuing symptomatology since service and noted that "the information was reviewed as well as the lay statements." R. at 207.
In December 2018, the Board denied entitlement to disability compensation for amputation of toes from the left and right feet and peripheral neuropathy of the left and right feet, all including as a result of contaminated water at Camp Lejeune. R. at 7-18. This appeal followed.
The appellant contends that the August 13, 2018, medical opinion is inadequate because the physician relied on an assumption regarding his alcohol consumption after military service and may have failed to address studies indicating that peripheral neuropathy is common among those exposed to contaminants in the water supply at Camp Lejeune. Appellant's Brief (Br.) at 5-7, 10. Additionally, he contends that the Board failed to ensure compliance with its prior remand because the physician did not address continuity of symptomatology since his discharge from service. Id. at 8-10. The appellant further asserts that the August 24, 2018, examiner failed to consider his in-service treatment for a wart. Id. at 9-10. Finally, he argues that the Board failed to consider whether entitlement to disability compensation for peripheral neuropathy or toe amputations was warranted based on continuity of symptomatology. Id. at 11-12. The Secretary disputes these contentions and requests affirmance. Secretary's Br. at 8-14.
Establishing that a disability is service connected for purposes of entitlement to VA disability compensation generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2019). For chronic diseases included in the provisions of 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), there are two alternative methods of establishing service connection-chronicity and continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1335-36, 1340 (Fed. Cir. 2013). Continuity of symptomatology is established if a claimant demonstrates (1) a condition "noted" during service; (2) evidence of postservice continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1336, 1340; 38 C.F.R. § 3.309(a) (2019); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (). Continuing symptoms, not treatment, must be the focus of the evidentiary analysis. Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991).
Additionally, VA has recognized that certain contaminants-including trichloroethylene, perchloroethylene, vinyl chloride, and benzene-were "present in the base water supply" at Camp Lejeune, North Carolina, between August 1, 1953, and December 31, 1987. 81 Fed. Reg. 62, 419-01, 62, 419 (Sept. 9, 2016). VA has determined that "service connection on a presumptive basis is warranted for claimants who served at Camp Lejeune during the relevant period and for the requisite amount of time and later develop certain diseases," specifically kidney cancer, non-Hodgkin's lymphoma, adult leukemia, liver cancer, bladder cancer, multiple myeloma, Parkinson's disease, and a plastic anemia and other myelodysplastic syndromes. Id. at 62, 422; see 38 C.F.R. § 3.309(f). A claimant may also establish entitlement to service connection on a direct basis by showing that a disorder was caused by exposure to contaminants in service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ().
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