Citation Nr: 18145118 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-21 995 DATE: October 26, 2018 ORDER Entitlement to service connection for stomach polyps, to include as due to exposure to contaminated drinking water at Camp Lejeune is denied. Entitlement to service connection for renal toxicity, to include as due to exposure to contaminated water at Camp Lejeune is denied. REMANDED Entitlement to service connection for a heart disability, to include as due to exposure to contaminated drinking water at Camp Lejeune is remanded. Entitlement to service connection for anemia, to include as due to exposure to contaminated drinking water at Camp Lejeune is remanded. FINDINGS OF FACT 1. The evidence is insufficient to show that the Veteran had a diagnosis of stomach polyps during the appeal period. 2. The evidence is insufficient to show that the Veteran’s renal toxicity had its onset in service, is related to chemical exposures in Camp Lejeune, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to stomach polyps have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c). 2. The criteria for entitlement to service connection for renal toxicity have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1973 to July 1976 and March 1983 to April 1986. The Veteran filed a claim of entitlement to compensation under U.S.C. § 1151 for renal toxicity is April 2017. The claim has been acknowledged by the Agency of Original Jurisdiction (AOJ) but has not been fully adjudicated. Thus, it is not before the Board. Service Connection Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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). For certain chronic disorders, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases establishing presumptive service connection for exposure to contaminants in the water supply at Camp Lejeune. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). The listed diseases are adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. Additionally, under the Camp Lejeune Act of 2012, VA will provide cost-free health care for 15 additional listed conditions. See 38 C.F.R. § 17.400. 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) service 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). Renal dysfunction and stomach polyps are not presumptive conditions under 38 C.F.R. §3.309(f). VA is also required to consider service connection on a direct basis for any other disease not listed in 38 C.F.R. § 3.309(f) that is alleged to have been caused by the contaminant in the water supply at Camp Lejeune if there is (1) evidence of a current disease or disability, (2) evidence of exposure to the contaminated water at Camp Lejeune while on active duty, and (3) a medical nexus between the two, supported by a sufficient scientific explanation. See M21, Part IV.ii.2.C.6.a. The Veteran contends that his stomach polyps and renal toxicity are related to contaminated water exposure at Camp Lejeune. The Veteran’s personnel records confirm he had service at Camp Lejeune during the qualifying period. 1. Entitlement to stomach polyps, to include as due to exposure to contaminated drinking water at Camp Lejeune The Veteran asserts that he has stomach polyps as a result of exposure to contaminated drinking water at Camp Lejeune. However, VA and private treatment records are silent for complaints of or treatment for stomach polyps. To be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. The Court has held that this requirement “is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); but see Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) (holding that “when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.”). The Veteran’s February 1986 separation examination report indicates he denied stomach trouble. A February 1996 private treatment record showed a diagnosis of a stomach ulcer but the remainder of his stomach, esophagus, and duodenum were normal. The Veteran’s VA and private treatment records throughout the appeal period consistently show a normal stomach. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for renal toxicity, to include as due to exposure to contaminated water at Camp Lejeune The evidence shows the Veteran has a current diagnosis of chronic renal failure. See VA Treatment Notes. Thus, the issue that remains disputed is whether the Veteran’s renal toxicity had its onset in service, is related to contaminated water at Camp Lejeune or is otherwise related to service. To this end, the preponderance of the evidence is against the claim. The Veteran’s service treatment records are silent for complaints of or treatment for renal dysfunction. In an October 2013 medical opinion, the examiner opined that the Veteran’s renal toxicity was not due to exposure to contaminated water at Camp Lejeune. The examiner reasoned that the medical scientific literature does not support the Veteran’s contention. The Veteran’s exposure at Camp Lejeune was limited and did not involve years of cumulative or high-level exposure. Moreover, the Veteran’s medical treatment records show the Veteran’s chronic kidney disease is due to his hypertension with acute renal damage from his overuse of NSAID medication. The examiner further indicated that both hypertension and overuse of NSAID medication are well known causative factors of kidney damage. Hypertension is not known to be caused by drinking contaminated water at Camp Lejeune and the Veteran reported a family history of hypertension. In rendering an opinion, the examiner cited to several entries in the Veteran’s treatment notes including the fact that the Veteran’s hypertension was difficult to control, he showed noncompliance, and he had a family history of hypertension. The examiner also cited to 2011 VA treatment records indicating the Veteran’s renal failure may be secondary to hypertension and overuse of NSAIDS. The examiner also cited to several articles regarding diseases the cause kidney failure and the relationship between NSAIDs and acute kidney injury. Also of record is an April 2018 private nexus opinion from Dr. J.A.C. Dr. J.A.C. stated, “[The Veteran] is a patient that I follow for kidney failure. He is requiring dialysis at this time. He showed me information that during his tenure in the marines, he was exposed to chemicals in the drinking water at Camp Lejeune. He was stationed there from April 1975 to July 1976. Some of the substances he was exposed to are associated with toxicity to the kidneys. It is likely this contributed to [the Veteran] developing kidney failure by being an initial assault to his kidneys. His kidney function deteriorated over the years to his current level and requirement for dialysis.” When reviewing conflicting medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board has carefully considered this information, and ultimately finds that the VA examiner’s opinion is afforded more probative weight compared to the private examination. Dr. J.A.C.’s opinion fails to address the Veteran’s medical history or the role of the Veteran’s hypertension and use of NSAIDs in his opinion. In addition, Dr. J.A.C. generally indicates that “some of the substances [the Veteran] was exposed to are associated with toxicity to the kidneys” without providing any rationale. The Board finds the October 2013 VA medical opinion probative to the question at hand. The examiner considered an accurate history, to include the Veteran’s contentions regarding the onset of her gastrointestinal symptoms. The opinion was definitive and supported by a rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In support of this contention, the Veteran also submitted a medical article regarding acute renal failure. See May 2018 Correspondence. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1). However, while the article submitted by the Veteran addresses renal failure it does not contain any information or analysis specific to the Veteran’s case. As such, the evidence is of limited probative value. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the Board acknowledges that the Veteran has some medical training, as he consistently reported serving as a respiratory therapist for several years. See June 2013 Correspondence. Nevertheless, the Veteran is not competent to opine that his current renal disability is related to exposure to contaminated water at Camp Lejeune. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s renal condition is not related to service. Accordingly, entitlement to service connection for renal toxicity is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a heart disability, to include as due to exposure to contaminated drinking water at Camp Lejeune is remanded. The Veteran was afforded a VA examination regarding his heart disability in May 2015. The examiner summarily opined, “It is more unlikely than not that the diagnosis of G6PD deficiency is the result of his congestive heart failure.” The examiner’s opinion is not responsive to the issue of whether the Veteran’s heart disability had its onset in service, manifested to a compensable degree within one year of separation, or is related to exposure to contaminated water at Camp Lejeune. Thus, a new examination is warranted. 2. Entitlement to service connection for anemia, to include as due to exposure to contaminated drinking water at Camp Lejeune is remanded. The Veteran was afforded a VA examination regarding his anemia in May 2015. The examiner summarily opined, “It more unlikely than not that the anemia is related to the G6PD deficiency that was noted in July 1973, his anemia is related to his kidney failure and subsequent recent start on dialysis.” The examiner’s opinion is not responsive to the issue of whether the Veteran’s anemia had its onset in service, manifested to a compensable degree within one year of separation, or is related to exposure to contaminated water at Camp Lejeune. Thus, a new examination is warranted. The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination to determine the current nature and severity of his heart condition and anemia. For each diagnosis, the examiner should issue medical opinions as to whether it is at least as likely as not (50 percent probability or higher) the condition had its onset in service, manifested to a compensable degree within one year of separation, or is related to exposure to contaminated water at Camp Lejeune. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel