Citation Nr: 18150000 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-29 441 DATE: November 14, 2018 ORDER Service connection for a kidney disorder, to include as secondary to exposure to contaminants in the water supply at Camp Lejeune is denied. FINDING OF FACT The Veteran’s kidney disease did not have its onset in service and is not otherwise related to service, to include exposure to contaminates in the water supply at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for a kidney disorder, to include as secondary to exposure to contaminants in the water supply at Camp Lejeune are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 through April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Entitlement to service connection for a kidney disorder The Veteran contends that his exposure to contaminated water during military service was the cause of his current kidney disorder. See July 2018 brief. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including kidney disease, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during 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 may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain diseases based upon exposure to contaminants in the water supply at Camp Lejeune may be awarded on a presumptive basis. 38 C.F.R. § 3.307. A veteran who served at Camp Lejeune is presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(7), (d). Service at Camp Lejeune is defined as service of no less than 30 days (consecutive or nonconsecutive) within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River (MCAS), North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 U.S.C. § 101(24)(B) and (C); 38 C.F.R. § 3.307(a)(7)(iii). For veterans presumed to have been exposed to contaminants, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 C.F.R. § 3.307(a)(7) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(f). The enumerated diseases which are deemed to be associated with contaminant exposure include kidney cancer; liver cancer; non-Hodgkin’s lymphoma; adult leukemia; multiple myeloma; Parkinson’s disease; aplastic anemia and other myelodysplastic syndromes; and bladder cancer. 38 C.F.R. § 3.309(f). Even if presumptive service connection is not for application, service connection can be alternatively established on a direct basis by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Initially, the Board finds that the presumptive regulations concerning Camp Lejeune discussed above are not for application, because the Veteran was not at Camp Lejeune for the required amount of time to trigger the presumption. The Veteran alleges that his kidney disease is related to exposure to contaminants during his military service at Camp Lejeune. See May 2014 claim. However, the Veteran’s personnel records show he was stationed at Camp Lejeune from June 19, 1969 to July 15, 1969. See March 1975 record of service. Similarly, the Veteran’s service treatment records (STRs) show that he was stationed at Camp Lejeune from June 18, 1969 to July 14, 1969. See April 1971 abstract of service and medical history. A subject matter expert (hereinafter, VA examiner) who also reviewed the Veteran’s STRs and personnel records noted that the Veteran’s service at Camp Lejeune was for 26 days. See October 2014 VA examiner’s report. For these reasons, the Board finds that the presumptive regulations are not for application, as the Veteran did not serve at Camp Lejeune for at least 30 days. 38 C.F.R. § 3.307(a)(7)(iii). The Board notes, without conceding the presumptive regulations apply, that even if they did, the Veteran is diagnosed with IgA nephropathy, which is not an enumerated disease deemed to be associated with contaminant exposure at Camp Lejeune. See March 2007 private treatment record (diagnosing Veteran with IgA nephropathy, proven by biopsy). As addressed above, even if service connection on a presumptive basis is not for application, VA must still consider whether service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service, as well as for certain chronic diseases, including kidney disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309; Combee, 34 F.3d 1039; Walker, 708 F.3d at 1331; and Fountain, 27 Vet. App. at 271-72. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s nephrologist, Dr. FRA, diagnosed IgA nephropathy (kidney disease), proven by biopsy in March 2007. See March 2007 private medical records. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran alleges an in-service event, in the form of, drinking the water while stationed at Camp Lejeune. See May 2014 claim. The Veteran’s STRs and personnel records confirm he was stationed at Camp Lejeune. The Veteran’s entrance examination shows that the Veteran reported a family history on his mother’s side of “kidney trouble,” but the examining physician at that time did not note any renal disorders or deficiencies prior to induction. See March 1969 entrance examination. During service, the Veteran did not receive any treatment related to his kidneys. See September 1970 STRs (treatment for a cold); October 1970 STRs (treatment for a foot wart); and March 1970 STRs (treatment for a cough). Similarly, the Veteran was examined prior to his release from service, at which time only a vision defect was noted. See April 1971 separation examination. Third, the Board finds that the evidence of record does not support a finding that the Veteran’s kidney disease is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran first sought treatment for his kidney disorder in 2006, and a review of those records shows routine care and medication management. See September 2006 through December 2012 private medical records. Specifically, Dr. FRA, a nephrologist, first saw the Veteran for his kidney condition in September 2006. At that time, the Veteran complained of blood in his urine and frequent voiding at daytime and at night. See September 2006 private medical records. On physical examination, Dr. FRA noted the Veteran was a well-developed, well-nourished individual who looked older than his stated age, but was in no acute distress, appropriately dressed, clean, well-groomed, and had a moderate build. The Veteran’s liver, kidney, or spleen were palpable. Dr. FRA ordered laboratory testing, which under urinalysis, revealed high levels of creatine. By the end of September 2006, Dr. FRA continued to work up the Veteran’s kidney condition, but suspected it was likely primary glomerulonephritis. Upon follow up in October 2006, Dr. FRA noted that further work up was required to rule out glomerulonephritis, and he recommended a biopsy. From October 2006 through February 2007, Dr. FRA discussed treatment options and encouraged the Veteran to undergo a biopsy. By March 2007, a biopsy had been performed and Dr. FRA reported that it confirmed the presence of IgA nephropathy (kidney disease), at which time the Veteran was prescribed medications. The Veteran continued to receive treatment from Dr. FRA through December 2012. See June 2007 through December 2012 private medical records. In October 2014, a VA kidney examiner reviewed the Veteran’s treatment records to determine if the Veteran’s kidney disease was related to his in-service exposure to contaminants. The VA examiner opined that it was less likely as not (less than 50/50 probability) that the Veteran’s kidney disorder was caused by or the result exposure to contaminants in the drinking water at Camp Lejeune. See October 2014 VA examiner’s report. In rendering this opinion, the examiner rationalized that the Veteran’s kidney disease had not been associated with the contaminants found in the drinking water at Camp Lejeune and that the Veteran’s mother had kidney trouble, so he may have had a genetic predisposition to his condition. Since that time, the Veteran’s VA treatment records show routine care for unrelated conditions. See January 2015 VA treatment record (optometry); March 2015 VA treatment record (optometry); April 2015 VA treatment record (primary care; specifically noting kidney disease followed by Dr. FRA); and June 2015 VA treatment record (optometry). The Board acknowledges that the October 2014 VA examiner did not review treatment records from Dr. FRA, but since those records only show routine care and do not provide an etiological opinion, the Board finds that the October 2014 VA examiner’s report is still of significant probative value. Although the Veteran asserts that his kidney disorder is related to exposure to contaminants, he is not competent as such an opinion is not capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The development of kidney disease, an internal condition, as due to exposure to contaminants is not a simple determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). In the Veteran’s October 2015 notice of disagreement, he did provide an article discussing the pathogenesis of kidney disease, but this article does not address the particular facts of the Veteran’s case nor does it address whether the Veteran’s kidney disorder is etiologically linked to contaminants. See October 2015 article on pathogenesis of IgA nephropathy. Thus, the Board does not accord significant probative value to these assertions. In summary, the Veteran’s time at Camp Lejeune is less than the required duration to qualify for presumptive service connection, and even if it were, the Veteran’s kidney disorder, is not a disease eligible for presumptive service connection. 38 C.F.R. §§ 3.307(a), 3.309(f). In addition, the record fails to provide an etiological link between the Veteran’s current disability and his military service. Accordingly, service connection for a kidney disorder is denied. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel