Citation Nr: 1801804	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  17-05 341	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for hepatic steatosis, to include due to contaminated drinking water at Camp Lejeune, North Carolina.


REPRESENTATION

The Veteran represented by:  The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran, his wife, D.N. and his daughter, S.N.


ATTORNEY FOR THE BOARD

P. Franke, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from February 1953 to July 1953. 

This appeal is before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a February 2016 rating decision of the VA Regional Office (RO) in Huntington, West Virginia.  The Veteran testified at a Board videoconference hearing in October 2017 before the undersigned Veterans Law Judge and prior to that at a March 2016 RO Formal hearing.  Both transcripts are of record.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  The Veteran served at Camp Lejeune, North Carolina, from early May 1953, to July 29, 1953 and is not presumed to have been exposed to contaminated water at Camp Lejeune between August 1, 1953 to December 31, 1987, as specified in the applicable regulation which otherwise provides for such a presumption.

2.  The Veteran's liver disorder did not manifest within one year of separation from service as a chronic disease, it was not noted in service, there can be no evidence of post-service continuity of symptomatology, and it is not otherwise etiologically related to service.



CONCLUSION OF LAW

The criteria for service connection for hepatic steatosis, to include due to contaminated drinking water at Camp Lejeune, North Carolina, are not met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (a), 3.309 (a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist 	

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions.  The Veteran has not yet been assisted through arrangement for a Compensation and Pension examination and will not be until the instant matter is first addressed by the Board.  

Service Connection 

Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active 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).  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).  See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  

Effective March 14, 2017, regulations provide that a Veteran who had 30 days of service between August 1, 1953 to December 31, 1987 at Camp Lejeune, North Carolina, and develops adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, multiple myeloma, non-Hodgkin's lymphoma, or Parkinson's disease service connection may be presumed.  38 C.F.R. § 3.307, 3.309.  Hepatic steatosis is not on that list, but was on an earlier list providing that in certain circumstances, such disorder was eligible for VA health care benefits.

Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b).

Lay Evidence 
 
Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran Assertions

The Veteran contends both in his October 2017 Board hearing testimony and the statement accompanying his February 2016 notice of disagreement that he spent several weeks in hospital in Camp Lejeune, North Carolina, he subsequently developed hepatic steatosis in-service, he did not receive a diagnosis, he had this disorder when discharged, and he has it currently.  He further asserts that, although his disorder is not one of the disease conditions warranting a presumption of service connection under 38. C.F.R. § 3.309 (f), there is no conclusive clinical evidence to exclude the possibility of the contaminants, singly or in combination, inducing his disorder.  He adds that, although he was not present at Camp Lejeune during the presumptive period beginning on August 1, 1953, the date is only a general point of demarcation as to when the risk of disease was present and cannot possibly accurately account for the ongoing and incremental effects of contaminants in the period directly preceding August 1, 1953.    

Hepatic Steatosis and Presumed Service Connection 

As noted, under 38 C.F.R. § 3.307 (a)(7), a veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune, North Carolina during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service.  The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987.  For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987, as established by military orders or other official service department records.  38 C.F.R. § 3.307 (a)(7) (2017).

Contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987.  38 C.F.R. § 3.307 (a)(7).

If a veteran or former reservist or member of the National Guard was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307 (a)(7), certain diseases shall be service-connected when manifested to a degree of 10 percent or more at any time after service, even though there is no record of such disease during service, subject to the rebuttable presumption provisions of §3.307 (d).  38 C.F.R. §§ 3.307 (a)(7), 3.309 (f).

The National Academy of Sciences' National Research Council published its Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009.  This report included a review of studies addressing exposure to trichloroethylene (TCE) and Tetrachloroethylene (PCE), as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure.  Fourteen disease conditions were identified as having limited/suggestive evidence of an association with TCE, PCE or a solvent mixture exposure.  The National Research Council uses the category "limited/suggestive evidence of an association" when the evidence is "limited by the inability to rule out chance and bias, including confounding, with confidence."  More specifically, the National Research Council concluded that "the epidemiological studies give some reason to be concerned that sufficiently high levels of the chemical may cause the disease, but the studies do not provide strong evidence that they actually do so."

Nonetheless, hepatic steatosis is one of the disease conditions identified as having limited/suggestive evidence of an association to chemicals at Camp Lejeune.  As noted, it may be subject to an award of VA health care benefits, under certain circumstances, but is not on the list for which compensation benefits may be paid.

However, the Veteran's claim to presumed service connection under the regulation is deficient for the most basic of reasons.  He was not present at Camp Lejeune during the period for which the presumption can be applied.  The Board is well aware of the Veteran's argument that the dates bracketing the period cannot with scientific accuracy embrace all instances of the manifestation of the various diseases and that contamination could affect persons on either side of those specific dates.  

The Board directs the Veteran's attention to the very words of the regulation, already set forth above, which provide the definition upon which the presumption is based, that "[f]or purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987, as established by military orders or other official service department records.  38 C.F.R. § 3.307 (a)(7)(iii) (emphasis added)."

The Board is bound by the regulations of the Secretary.  38 U.S.C. § 7104. Moreover, the Board itself cannot render its own independent medical judgments; it does not have the expertise.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Therefore, the Board cannot make a finding as to when the Veteran's disease may have come into existence upon exposure to contaminants.  

The Board must make findings of fact and assess and weigh the evidence accordingly.  See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367   (2001); Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001).  See also 38 U.S.C. § 7104 (a).  The only conclusion left for the Board to make is that the Veteran does not fall within the definition of having served at Camp Lejeune for the purposes of and within the meaning of 38 C.F.R. §3.307 (a)(7)(iii) and § 3.309 (a). 
      
The Veteran in his testimony at the October 2017 Board hearing stated that, regardless of the time spent at Camp Lejeune, he nonetheless incurred his liver disorder in service.  The Board must then determine if service connection can be established on another basis.  38 C.F.R. § 3.309 (a) presents an alternative avenue of presumptive service connection.  As stated earlier in this decision, that regulation states that certain diseases, of which cirrhosis of the liver is one, will be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within the applicable time limits under §3.307 following service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of §3.307 are also satisfied.  Under 38 C.F.R. § 3.309 (a)(3), the period in which the disease must be manifest is one year.  
 
Service treatment records (STRs) indicate that in his February 1953 enlistment examination the Veteran's abdomen and viscera were marked as "NORMAL."  Additionally, "NO" was marked next to whether the Veteran had currently or in the past "stomach, liver or intestinal trouble," "jaundice" or "frequent indigestion."  In his July 1953 discharge examination, the Veteran's abdomen and viscera again were marked as "NORMAL."

The Veteran's treatment records at Beckley VA between 1997 and 2002 indicate normal enzymes in the Veteran liver and overall normal results of tests.  In February 2003, the Veteran had exhibited high liver enzymes and elevated liver function tests.  As results fluctuated between normal and elevated levels, the Veteran was monitored regularly.

Multiple ultrasound imaging studies were carried out.  By June 2015, nodes and an ill-defined density were detected on the Veteran's liver.  In October 2015, the Veteran was assessed with cryptogenic cirrhosis.  At Princeton VA in November 2015, the Veteran presented with elevated liver function tests and was assessed with nonalcoholic cirrhosis of the liver, consistent with fatty liver infiltration disease.  The initial impression/diagnosis stated that the etiology of the fatty liver was "presumably" the Veteran's diabetes mellitus and hyperlipidemia.  In December 2015 gastroenterological examinations at Beckley VA, cirrhosis/fatty liver was identified, but the Veteran was noted as doing well with medical management.  The subsequent record reflects the Veteran's regimen of liver medications.

The foregoing review of the record indicates clearly that there was no manifestation of hepatic steatosis within one year of service separation, as the earliest signs of the disease appear to be in 1997.  However, also stated earlier in this decision, an alternative way of establishing service connection for a chronic disease is by demonstrating continuity of symptomatology, which requires (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology

As indicated in the Veteran's STRs above, neither hepatic steatosis nor cirrhosis generally were noted in service and, therefore, there can be no evidence of post-service continuity of the same symptomatology or a direct connection, or nexus, between the present disability and any post-service symptomatology.

The Board cannot discern in the record any connection of the Veteran's disease to his service, presumed or otherwise, and therefore cannot make a finding to that effect. 

Conclusion 

The Board has carefully reviewed and considered the Veteran's October 2017 Board hearing testimony and that of his wife, D.N. and daughter, S.N., as well as the Veteran's numerous statements submitted to the record.  They have given the Board a better understanding of the nature and development of the Veteran's disorder.   
  
However, for the reasons stated, the Board finds that the Veteran's claim does not fall under a presumption, as defined by 38 C.F.R. § 3.307 (a)(7) or 3.309 (a).  Moreover, continuity of symptomatology is nowhere in the record demonstrated, nor is there any indication that the Veteran's liver-related disease was incurred due to an in-service event, injury or illness or that there is any relation to service whatsoever.  Therefore, the Board further finds that service connection has not been established.

The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence.  The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
	

ORDER

Entitlement to service connection for hepatic steatosis, to include as due to contaminated drinking water at Camp Lejeune, North Carolina, is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs