Citation Nr: 1815985 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 17-54 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for kidney disease, claimed as due to exposure to contaminated drinking water at Camp Lejeune. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1956 to February 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the RO included the issue of the Veteran's entitlement to service connection for heart problems, as secondary to kidney disease, in the statement of the case and supplemental statement of the case. However, in both the Veteran's June 2016 notice of disagreement and his October 2017 substantive appeal (VA Form 9), he expressly indicated that he was only appealing the claim for service connection for kidney disease. As such, the Board does not have jurisdiction to consider the heart claim. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). FINDING OF FACT 1. The Veteran served at Camp Lejeune for more than 30 days in 1956 and is therefore presumed to have been exposed to contaminants in the water supply. 2. Kidney disease did not manifest during active service, or within one year of service separation, and is not otherwise attributable to service, to include exposure to contaminated drinking water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for kidney disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks to establish service connection for kidney disease. He believes that the disease is due, at least in part, to his exposure to contaminated drinking water while stationed at Camp Lejeune. VA has met all statutory and regulatory notice and duty to assist provisions with respect to the matter herein decided. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.103, 3.156(a), 3.159, 3.326; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dingess v. Nicholson, 19 Vet. App. 473 (2006). No further notice or evidentiary development is required. Under applicable law, 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(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 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 the contrary. 38 C.F.R. § 3.307(a)(7)(iii). For purposes of this presumption, "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)(i). "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. Id. 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), the following diseases shall be service connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): 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). Provided, however, that such diseases shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). In the present case, the Veteran's service personnel records reflect that he served at Camp Lejeune for more than 30 days in 1956. Therefore, he is presumed to have been exposed to contaminants in the water supply. Post-service treatment records show the Veteran was diagnosed with kidney disease in 2009. Therefore, he has a current disability. 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 kidney disease is not. As such, service connection on a presumptive basis is not warranted. The central issue in this case, then, is whether the Veteran's kidney disease, diagnosed in 2009, 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). In that regard, the Veteran was afforded a VA examination in November 2015. The physician, identified as a member of the Subject Matter Expert Panel, Camp Lejeune Contaminated Water Project, found that the Veteran had chronic kidney disease, but that it was less likely than not (i.e., less than 50 percent likely) caused by or the result of exposure to water contaminants at Camp Lejeune. In support of this opinion, the physician discussed in detail, among other things, the medical literature concerning the renal effects of the chemicals to which the Veteran is presumed to have been exposed. As to other causal factors, the examiner stated, in part: Per documented laboratory findings, the Veteran did not have kidney disease as of 12/12/2001, which was more than 40 years after his one year sojourn at Camp Lejeune. He did have kidney disease in 2009, at which time he had multiple risk factors for kidney disease including hypertension, Type II diabetes mellitus, and acute on chronic renal failure post CABG. Hypertension and Type II diabetes mellitus are the two strongest risk factors for kidney disease. At this time, diabetic nephropathy is the leading cause of chronic kidney disease in the United States and other Western societies, and is responsible for 30-40% of all end-stage renal disease cases in the United States. Hypertensive nephropathy accounts for 28% of all end-stage renal disease cases in the United States, and is the second most common cause of ESRD in white people (23%) and the leading cause of ESRD in black people (46%.) In addition, advanced age is also correlated with decreased kidney function and the Veteran was 70 in 2009. The physician was clearly 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 Board has considered the Veteran's statements to the effect that contaminated water at Camp Lejeune caused his kidney 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 expert's 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 most probative evidence establishes that the Veteran's chronic kidney 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. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the preponderance is against the claim, the claim must be denied. ORDER Service connection for kidney disease is denied. ______________________________________________ DAVID A. BRENNINGMEYER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs