Citation Nr: 18140748 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-36 202 DATE: October 5, 2018 ORDER Entitlement to service connection for a kidney disability, claimed as renal failure and renal toxicity due to exposure to contaminated water at Camp Lejeune, is granted. FINDING OF FACT The Veteran’s kidney disability is proximately due to exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria to establish service connection for a kidney disability due to exposure to contaminated water at Camp Lejeune are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7), 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from August 1974 to August 1978. The Board has recharacterized the issue on appeal as a claim of service connection for a kidney disability due to exposure to contaminated water at Camp Lejeune stemming from the June 2014 rating decision instead of a claim for clear and unmistakable error (CUE) in the June 2014 rating decision that initial denied the claim. The Board has recharacterized the claim because the record shows that the June 2014 rating decision did not become final because new and material evidence was received by the regional office (RO) in the first post-decision year and the January 2015 CUE claim is premature. See 38 C.F.R. §§ 3.105, 3.156(b). The Service Connection Claim The Veteran claims that his current kidney disability is due to exposure to contaminated water at Camp Lejeune. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). The Board also notes that in order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin’s lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson’s disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309(f). The availability of presumptive service connection for a disability based on contaminants in the water supply at Camp Lejeune does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows the Veteran being diagnosed with end stage renal disease from polycystic kidney disease. See, e.g., VA examination dated ated in April 2014; Dr. Mahathi A. Reddy letter dated in October 2016. The Board also finds the Veteran’s service personnel records showing that he was at Camp Lejeune in 1977 and 1978 and this evidence provides competent and credible evidence of the in-service incurrence of the injury (i.e., exposure to the contaminants in the water supply at Camp Lejeune). See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Lastly, as to a link between the post-service end stage renal disease and military service, the Board notes that after a review of the record on appeal the April 2014 VA examiner opined that the Veteran’s end stage renal disease from polycystic kidney disease was not due to his exposure to the contaminants in the water supply at Camp Lejeune. On the other hand, also after review of the record on appeal, Dr. Reddy, a Nephrologist, opined in October 2016 that the Veteran’s end stage renal disease from polycystic kidney disease was due to his exposure to the contaminants in the water supply at Camp Lejeune. Tellingly, both opinions cite to evidence found in the claims file and medical literature to support their conclusions. Both are highly credible and detailed. We also can not overlook the fact that Dr. Reddy is a nephrologist. The Board finds no flaws in either opinion that would provide a basis to find one opinion to be better than the other in this complicated issue. Further, the Board finds that further development of this case must be avoided due to two factors: (1) The Veteran’s condition; and (2) the fact remains that we have two highly qualitied medical opinions in this case and have no reason to believe that a third opinion would provide a basis to find the truth in this case. Given the quality of both opinions the Board believes that a third opinion would likely provide no evidence that would quantitatively support, or refute, the Veteran’s central contention, and, worse, delay the adjudication of this case, a case that the Board has advanced on the docket due to the Veteran’s condition. Given these equally persuasive etiology opinions the Board finds that the evidence, both positive and negative, as to whether the Veteran’s current end stage renal disease from polycystic kidney disease is due to his exposure to the contaminants in the water supply at Camp Lejeune is at least in equipoise. See Owens, supra. In these unique circumstances and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that end stage renal disease from polycystic kidney disease is due to his exposure to the contaminants in the water supply at Camp Lejeune while on active duty and service connection, on this unique case, is granted. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel