Citation Nr: 19171237 Decision Date: 09/17/19 Archive Date: 09/13/19 DOCKET NO. 17-01 337 DATE: September 17, 2019 ORDER Entitlement to service connection for diabetes mellitus, type II is granted. Entitlement to service connection for kidney disease is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus, type II is linked to his active service. 2. The Veteran’s kidney disease is linked to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, are satisfied. 38 U.S.C. §§ 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for kidney disease are satisfied. 38 U.S.C. §§ 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1951 to October 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. In June 2016, a new VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, was received at the Agency of Original Jurisdiction appointing the representative listed on the title page above. The Board recognizes this change in representation. 1. Entitlement to service connection for diabetes mellitus, type II is granted. The Veteran maintains that his diabetes mellitus, type II is related to his active service. Specifically, the Veteran believes that his diabetes mellitus, type II was caused by exposure to chemicals contained in contaminated water while stationed at Camp Lejeune and/or solvents he used as a Tank Mechanic during his active service. For the reasons discussed below, the Board finds that service connection is warranted. Service connection means that a veteran has 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). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). 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 establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). “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. Id. When exposure to the contaminants in the water supply at Camp Lejeune is established in accordance with § 3.307(a)(7), certain diseases associated with such exposure will be service-connected if they manifest to a degree of 10 percent or more at any time after service. Id.; 38 C.F.R. § 3.309(f). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307(d), 3.309(f). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The record shows that the Veteran had service at Camp Lejeune within the time frame set forth in § 3.307(a)(7). However, the Veteran did not have 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the applicable time period. The Veteran’s service personnel records indicate that he served at Camp Lejeune from April 18, 1952 to August 10, 1953. Thus, the Veteran was stationed at Camp Lejeune for 10 days, at most, during the applicable time period. Exposure to the contaminants in the water supply at Camp Lejeune, including TCE, PCE, and benzene and vinyl chloride, cannot be presumed. Further, diabetes mellitus, type II is not among the diseases for which a presumption of service connection has been established based on exposure to the contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). Accordingly, presumptive service connection may not be awarded based on such exposure. See 38 C.F.R. §§ 3.307, 3.309. While service connection may not be granted on a presumptive basis, service connection on a direct basis is still available to the Veteran. In terms of service connection on a direct basis, the Veteran’s VA treatment records indicate that he has a current diagnosis of diabetes mellitus, type II. Thus, the first element of service connection, the existence of a current disability, has been satisfied. Second, the Veteran maintains that he was exposed to TCE and PCE via cleaning solvents that he used as a tank mechanic. See September 2012 Written Statement. The Veteran’s Certificate of Release or Discharge, DD Form 214, indicates that his military occupational specialty was a Tank Mechanic. In this regard, the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds the Veteran’s account of in-service exposure to chemical solvents containing TCE and PCE to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evidence therefore satisfies the second element of service connection, an in-service incurrence or aggravation of a disease or injury. 38 C.F.R. § 3.303(a). Therefore, the lone question to answer is whether there is a relationship between the Veteran’s chemical exposure during his active service and his current diabetes mellitus, type II. In this regard, the Veteran’s claims folder contains a June 2019 private medical opinion that advises that there is a greater than 50 percent probability that his diabetes mellitus is related to TCE and PCE exposure. In support, the medical opinion provides that the Veteran was exposed to TCE and PCE via his use of cleaning solvents without protective clothing, respiratory filters, and ventilation system. The medical opinion also states that TCE is a known carcinogen and has been banned in the United States since 2016. PCE is a known carcinogen and that both TCE and PCE are suspected of having a role in diabetes mellitus, type II according to the medical opinion. Further, the medical opinion advises that the Veteran does not have common risk factors for the development of diabetes mellitus, type II as he developed it at an early age, he is thin, and there is no family history of diabetes. The Board finds the June 2019 private medical opinion to be adequate and especially probative. The private medical opinion represents the informed conclusion of a medical professional supported by a sufficient explanation and is based, in part, on his research and citation to medical literature concerning the link between diabetes mellitus, type II, and TCE and PCE exposure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Moreover, the probative value of these findings is bolstered by the private physician’s familiarity with the personal medical treatment of the Veteran. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no “treating physician rule” requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran’s condition the clinician may be). Additionally, the record does not contain a negative etiological opinion. Thus, the Board finds that service connection for diabetes mellitus, type II is warranted. Because the preponderance of the evidence is in favor of the award of service connection for diabetes mellitus, type II, the benefit of the doubt doctrine is not applicable in the instant appeal and service connection is granted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-57. 2. Entitlement to service connection for kidney disease is granted. As noted above, the Veteran believes that his kidney disease was caused by exposure to chemicals contained in contaminated water and/or in solvents he used during his active service. For the reasons discussed below, the Board finds that service connection is warranted. Again, exposure to the contaminants in the water supply at Camp Lejeune, including TCE, PCE, and benzene and vinyl chloride, cannot be presumed. Additionally, kidney disease is not among the diseases for which a presumption of service connection has been established based on exposure to the contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). Accordingly, presumptive service connection may not be awarded based on such exposure. See 38 C.F.R. §§ 3.307, 3.309. Service connection on a direct basis is again available to the Veteran. In terms of direct service connection, the Veteran’s VA treatment records indicate that he has a current diagnosis of kidney disease. Thus, the first element of service connection, the existence of a current disability, has been satisfied. And, because the Veteran competently and credibly reported exposure to TCE and PCE during his active service while working as a Tank Mechanic, the second element of service connection, an in-service incurrence or aggravation of a disease or injury, is satisfied. 38 C.F.R. §§ 3.303(a). Again, the question to answer is whether there is a relationship between the Veteran’s chemical exposure during his active service and his current kidney disease. In this regard, the Veteran’s claims folder contains a June 2019 private medical opinion that advises that there is a greater than 50 percent probability that his kidney disease is related to TCE and PCE exposure. As discussed above, the medical opinion recounts the Veteran’s exposure to TCE and PCE during his active service and notes that both chemicals are carcinogenetic. The medical opinion further states that TCE is known to be a nephrotropic and that the Veteran is diagnosed with chronic renal failure. The Board finds the June 2019 private medical opinion to be adequate and especially probative for the same reasons as above. The Board acknowledges the negative etiological opinions evidence of record in the form of the May 2013 VA medical opinion and August 2014 VA medical opinion disassociating the Veteran’s kidney disease from his active service. Both medical opinions conclude that the Veteran’s kidney failure was not noted until at least 2006 and that this gap in time since the exposure does not provide probative evidence for a temporal nexus between the claimed condition and the time of any exposure in service. However, the Board finds that the medical opinions are inadequate because neither contain a thorough explanation of the conclusions reached with citation to the Veteran’s medical history, relevant medical literature, or the details of his reported in-service chemical exposure. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124 (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”); see also Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (reflecting that the Board is free to assess medical evidence and is not obligated to accept a physician’s opinion). The May 2013 VA medical opinion and August 2014 VA medical opinion are also based on inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The May 2013 VA medical opinion states that the presumptive period for exposure to the contaminants in the water supply at Camp Lejeune is between 1957 and 1987. However, 38 C.F.R. § 3.307(a)(7) indicates that the presumptive period for exposure to the enumerated chemicals at Camp Lejeune cover the period beginning on August 1, 1953, and ending on December 31, 1987. The May 2013 VA medical opinion provides that the Veteran was stationed at Camp Lejeune in July and August 1951. The August 2014 VA medical opinion indicates that the Veteran was stationed at Camp Lejeune from July 6, 1953 to August 11, 1953. But, the Veteran’s service personnel records indicate that he served at Camp Lejeune from April 18, 1952 to August 10, 1953. Therefore, the Board finds that service connection for kidney disease is warranted. Because the preponderance of the evidence is in favor of the award of service connection for kidney disease, the benefit of the doubt doctrine is not applicable in the instant appeal and service connection is granted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran has not been afforded a VA examination to determine the nature and etiology of his current hypertension. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. As noted above, the Veteran competently and credibly reported exposure to TCE and PCE in cleaning solvents while working as a Tank Mechanic during his active service. Further, the Veteran’s VA treatment records from 2016 indicate that he has a history of hypertension of 57 years. Because there is at least an indication that the Veteran’s current hypertension may be related to his active duty service, a VA examination and opinion must be provided to make an informed decision on this claim. McLendon, 20 Vet. App. at 83; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2016 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any adequately identified physicians and facilities relating to treatment for his hypertension, including from Total Family Healthcare. Make two requests for the authorized records from all adequately identified physicians and facilities relating to treatment for his hypertension, including from Total Family Healthcare, unless it is clear after the first request that a second request would be futile. 3. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. (a.) The examiner must opine whether it is at least as likely as not that the Veteran’s hypertension was caused by his in-service exposure to cleaning solvents that contained trichloroethylene (TCE), perchloroethylene (PCE) while performing duties as a Tank Mechanic. (b.) The examiner must opine whether it is at least as likely as not that the Veteran’s hypertension was either (i) caused by or (ii) aggravated by his diabetes mellitus and/or kidney disease. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.