Citation Nr: 18160869 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-36 950 DATE: December 28, 2018 ORDER Entitlement to service connection for chronic renal disease (CRD) requiring regular dialysis is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has CRD due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for CRD requiring regular dialysis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from April 1983 to April 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for CRD requiring regular dialysis The Veteran contends that he developed CRD due to exposure to contaminated water while stationed at Camp Lejeune, North Carolina. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, including calculi of the kidney, nephritis, and cardiovascular-renal disease, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Certain diseases manifest to a degree of 10 percent or more at any time after service will be presumed to have been incurred or aggravated in service for veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days during the period from August 1, 1953 to December 31, 1987. 38 C.F.R. § §3.307, 3.309. The eight diseases in question 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. See Diseases Associated With Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (January 13, 2017). VA undertook a deliberative scientific process to determine whether available scientific evidence was sufficient to support a presumption of service connection for any health condition as a result of exposure to the chemicals found in the drinking water at Camp Lejeune. In the present case, the evidence shows that the Veteran was stationed at Camp Lejeune between April to July 1983. Therefore, he is presumed to have been exposed to contaminants in the water supply. Post-service private treatment records show the Veteran was diagnosed with CRD in 2010, 24 years after he separated from service. Additionally, although kidney cancer is one of the enumerated diseases for which presumptive service connection can be granted based on exposure to contaminants in the water supply at Camp Lejeune, chronic renal disease is not. As such, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. The central issue in this case, then, is whether the Veteran’s renal disease, diagnosed in 2010, can otherwise be attributed to service, to include his presumptive exposure to contaminated water. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran’s service treatment records are silent as to any treatment related to his kidneys. Additionally, the October 1982 enlistment exam and the March 1986 separation exam do not note any conditions related to CRD or kidney disease. The Veteran was afforded a VA examination in May 2016. The examiner, identified as a member of the Subject Matter Expert Panel, Camp Lejeune Contaminated Water Project, found that the Veteran’s diagnosis is diabetic nephropathy, which is not caused by or a result of the Veteran’s exposure to Camp Lejeune contaminated water (CLCW). The rationale provided by the examiner was based on several factors including the Veteran’s low exposure duration of 96 days, the 27-year lag time between exposure to CLCW and onset of renal disease, the lack of medical literature directly linking low dose exposures of CLCW with renal disease, and alternative risk factors for a diagnosis of CRD. The examiner cited to a total of 57 medical research articles that support his opinion. The examiner also found that based on studies of CLCW exposure, the average duration of exposure resulting in negative effects was 18 months for Marines and 25 months for civilians, both of which are for a significantly longer duration compared to the Veteran’s 96 days at Camp Lejeune. Additionally, based on a review of the Veteran’s medical records, the Veteran is diagnosed with other conditions including diabetes mellitus with diabetic retinopathy, hypertension, hyperlipidemia, and elevated BMI. The examiner opined that because of the presence of numerous other conditions, which are likely causally related to renal disease, it is not likely that the Veteran’s current CRD was caused by his remote exposure to CLCW. The Board finds that the physician was aware of the Veteran’s medical history, provided a fully articulated opinion, and furnished an analysis that was well reasoned, detailed, and consistent with the other evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board therefore attaches significant probative value to the opinion. The Veteran provided opinions from Dr. C.L. in February 2018 and Dr. T.J. in May 2018. These opinions both stated that the contaminated water from Camp Lejeune may have contributed to his CRD. The Board finds that these opinions have little probative value as the physicians’ opinions were too equivocal, and they did not provide any rationale to support their opinions. Id; Bostain v. West, 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of may also implies may or may not and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4 (1993) (doctor’s statement framed in terms such as could have been is not probative); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (may or may not language by physician is too speculative). In addition, the Board acknowledges that the opinions were provided by treating physicians; however, it is noted that the Court has expressly declined to adopt a ‘treating physician rule’ which would afford greater weight to the opinion of a veteran’s treating physician over the opinion of a VA or other physician. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, these opinions are afforded significantly less weight than the one provided by the VA examiner described above. With respect to whether the Veteran’s renal disease is otherwise related to service, service treatment records are unremarkable for complaints relating to, or treatment for, a kidney disorder. Moreover, there is no indication in the record that the Veteran was diagnosed with, treated for, or had manifestations of chronic renal disease in service or until within a year after service. Thus, the evidence is against an in-service incurrence of a kidney disorder. The Board has considered the Veteran’s statements to the effect that contaminated water at Camp Lejeune caused his renal disease. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature.” Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrates that he has received any special training or acquired the medical expertise necessary to resolve the etiological questions here at issue. The VA examiner’s expert medical opinion is the most probative evidence on that matter. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). The Board also acknowledges the Camp Lejeune Health study provided by the Veteran noting that causes of death, including non-cancerous kidney disease, were shown to have associations with the chemicals in the Camp Lejeune water. However, pursuant to the Camp Lejeune Families Health Act of 2012, the Veteran’s chronic renal disease does entitle him to cost-free healthcare with the VA, but does not presumptively entitle him to compensation. 38 U.S.C. § 1710(e)(1)(F). The Veteran provided another study in January 2016 highlighting the effects of CLCW, but this study discussed the causal link between breast cancer and water exposure, not CRD or kidney disease. The most probative evidence establishes that the Veteran’s renal disease is not related to service. The condition is not shown to have manifest during active service, or within one year of service separation; there is no suggestion of continuity of symptoms since service; and the condition is not shown to otherwise be attributable to service, to include exposure to contaminated drinking water at Camp Lejeune. Accordingly, service connection is not warranted. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert, 1 Vet. App. 49, 54 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel