Citation Nr: 1445364 Decision Date: 10/14/14 Archive Date: 10/22/14 DOCKET NO. 11-32 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for coronary artery disease, to include in-service exposure to contaminated drinking water at Camp Lejeune. 2. Entitlement to service connection for acute renal failure, to include in-service exposure to contaminated drinking water at Camp Lejeune. 3. Entitlement to service connection for hypercoagulable state with anemia, to include in-service exposure to contaminated drinking water at Camp Lejeune. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from February 1977 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction over this case has subsequently been transferred to Louisville, Kentucky. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. During his active duty service, the Veteran was stationed at Camp Lejeune during the period of time when the water was contaminated; thus, the Veteran is presumed to have been exposed to contaminated water during active duty. 2. The probative competent evidence of record is in equipoise as to whether the Veteran's coronary artery disease was causally related to in-service exposure to contaminated drinking water at Camp Lejeune. 3. The probative competent evidence of record is in equipoise as to whether the Veteran's renal insufficiency was causally related to in-service exposure to contaminated drinking water at Camp Lejeune. 4. The probative competent evidence of record is in equipoise as to whether the Veteran's hypercoagulable state with anemia was causally related to in-service exposure to contaminated drinking water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1153, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for renal insufficiency have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1153, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. The criteria for service connection for hypercoagulable state with anemia have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1153, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The Board need not discuss in detail the sufficiency of VCAA notice in light of the fact that the Board is granting the Veteran's claim below. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. II. Applicable laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the 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." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). 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 chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). III. Analysis The Veteran asserts that his current coronary heart disease, acute renal failure and hypercoagulable state with anemia are due his exposure to contaminated water at Camp Lejeune. For judicial economy, the Board will discuss these issues together below as all three issues are claimed to be from a common etiology. VA acknowledges that there was contamination of the ground water at Camp Lejeune from 1957 to 1987. Specifically, in the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. The contaminated wells supplying the water systems were identified and shut down by February 1985. In 2008, the National Academy of Sciences' National Research Council (NRC) and the Agency for Toxic Substances and Disease Registry (ATSDR) initiated studies. NRC undertook a study to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009), NRC reviewed previous work done by ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual. To address potential long-term health effects, NRC focused on diseases associated with TCE, PCE, and other VOCs. Based on analyses of scientific studies involving these chemicals, NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. The NRC analysis utilized categories of potential disease "health outcomes." The categories included: (1) sufficient evidence of a causal relationship; (2) sufficient evidence of an association; (3) limited/suggestive evidence of an association; (4) inadequate/insufficient evidence to determine whether an association exists; and, (5) limited suggestive evidence of no association. The analysis found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, 14 diseases were placed into the category of limited/suggestive evidence of an association. A number of diseases were also identified that fell into the category of inadequate/insufficient evidence to determine whether an association exists. NRC indicated that placement of diseases in these categories was based primarily on studies of highly exposed industrial workers, where the amount and duration of toxic chemical exposure greatly exceeded that experienced by individuals at Camp Lejeune. The specific diseases with limited/suggestive evidence of an association include: esophageal cancer; lung cancer; breast cancer; bladder cancer; kidney cancer; adult leukemia; multiple myeloma; myelodysplasic syndromes; renal toxicity; hepatic steatosis; female infertility miscarriage, with exposure during pregnancy; scleroderma; and neurobehavioral effects. Manifestation of any of these diseases is considered to be sufficient to initiate a VA medical examination and request an opinion regarding its relationship to Camp Lejeune service. However, this is not an exclusive list. Medical evidence provided by a veteran indicating that some other disease may be related to the known water contaminants could also be sufficient to initiate a VA examination. It is important to note that, to date, no definitive scientific studies have provided conclusive evidence that an individual who served at Camp Lejeune during the period of water contamination developed a particular disease as a result of that service. As a result, there are currently no "presumptive" diseases attributed to service at Camp Lejeune by statute, regulation, or VA policy. Accordingly, when VA receives a claim based on chemical exposure at Camp Lejeune, VA first must determine if the veteran was stationed at Camp Lejeune and if so for how long and in what capacity. Here, the evidence establishes that the Veteran was stationed at Camp Lejeune during a portion of his active military service from around July 1977 to around May 1979. The personnel file is not included in the file. Therefore, the dates of when the Veteran was stationed at Camp Lejeune are based on service treatment records. The next step is to verify, with medical evidence obtained through a VA medical examination or other authoritative medical sources, whether a claimed current disease or disability is at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune. The Veteran submitted statements from two private physicians. In an August 2009 letter, Dr. B., the Veteran's treating physician, explained that the Veteran had been treated for coronary artery disease, anemia, and acute renal failure related to hypercoagulable state. The examiner explained that the Veteran was exposed to PCE, Benzene and TCE during service. These have been noted to cause anemia and may have precipitated some potential for a hypercoagulable state as well as mood disorders, which the Veteran certainly continued to have. Although the examiner could not definitively state whether these disorders stemmed from exposure, he could neither deny the possible link. It appears that the examiner could not deny a link between the Veteran's anemia and a hypercoagulable state and exposure to perchloroethylene (PCE), Benzene and trichloroethylene (TCE) during service. In a December 2009 letter, Dr. Y., another of the Veteran's treating physicians, explained that the Veteran had diagnoses for coronary artery disease (with bypass surgery) and hypercoagulable state secondary to deep venous thrombosis as a relatively young 30 year old. He had a history of acute renal failure secondary to surgery after umbilical hernia repair. Although he recovered from the acute renal insufficiency, he currently had some mild renal insufficiency. The physician noted that the Veteran had been exposed to PCE, benzene, and TCE in the water at Camp Lejeune in the past which was documented by the Veteran. The examiner opined that the Veteran had diseases that have been shown to be associated with exposure to these substances. The physician could not definitely state that these diseases stemmed from exposure, but he "certainly could not deny that there was a link" between the problems that the Veteran was currently having and the exposure to these chemicals. The Veteran received two VA examinations for his claimed service-connected disabilities. The first VA examination was conducted in July 2010. The examiner diagnosed the Veteran was ischemic heart disease, acute renal failure, resolved, with mild renal insufficiency, anemia, resolved with no residuals, and hypercoagulability. The examiner opined that each of these diagnoses were not caused by or a result of his exposure to PCE, Benzene and TCE while stationed at Camp Lejeune because preponderance of medical evidence does not support a nexus. The examiner provided no further rationale for his opinion. In February 2012, the Veteran received a second VA examination. The examiner opined that the Veteran's ischemic heart disease, first diagnosed in 2000, was less likely than not caused by or related to Camp Lejeune water exposure and as likely as not caused by or related to smoking, hyperlipidemia, and strong family history of CAD. The examiner opined that the anemia, diagnosed in 2007, was less likely than not caused by or related to Camp Lejeune water exposure and as likely as to due to Vitamin B12 deficiency which is documented in the record. The examiner opined that the Veteran's chronic nephritis was less likely than not caused by or related to Camp Lejeune water exposure because there was clear documentation in VA records showing thrombosis from the IVC filter to the leg which caused apparent renal vein obstruction and acute renal failure. The evidence of record shows that the Veteran has current diagnoses for coronary artery disease, renal insufficiency, and hypercoagulated state and anemia. The question then becomes whether these disabilities are at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune. The standard to be met in a service connection case is not that the evidence must be sufficient to definitively establish that the disability at issue is due to service, but rather, sufficient to establish that it is at least as likely as not that the disability is related to service. The term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Such standard has been met in this case. The Board is not entirely satisfied with the opinions provided. For instance, the physician who provided the August 2009 opinion did not provide an opinion as to each of the Veteran's claimed disabilities. The July 2010 VA examiner did not provide a rationale for his opinion. However, when read as a whole, the private opinions adequately support a link, while the VA opinions adequately support the lack of a link. Accordingly, the Board finds that the evidence for and against the Veteran's assertions that his current diagnoses are due to exposure of contaminated water at Camp Lejeune is at least in equipoise. The United States Court of Appeals for Veterans Claims stated that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 526 (2014), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Accordingly, in resolving all reasonable doubt in favor of the Veteran, service connection for coronary artery disease, renal insufficiency, and hypercoagulable state with anemia due to in-service exposure to contaminated drinking water at Camp Lejeune, is granted. ORDER Entitlement to service connection for coronary artery disease, to include in-service exposure to contaminated drinking water at Camp Lejeune, is granted. Entitlement to service connection for renal insufficiency, to include in-service exposure to contaminated drinking water at Camp Lejeune, is granted. Entitlement to service connection for hypercoagulable state with anemia, to include in-service exposure to contaminated drinking water at Camp Lejeune, is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs