Citation Nr: 21001686 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-18 350 DATE: January 11, 2021 ORDER Entitlement to service connection for fatty liver (hepatic steatosis), to include as due to exposure to contaminants in the water supply at Camp Lejeune, is denied. FINDING OF FACT The evidence of record is against a finding that fatty liver (hepatic steatosis) began during, or otherwise is related to, the Veteran’s period of active duty service, to include presumed exposure to water contaminants at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for fatty liver (hepatic steatosis) are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7), 3.309(f) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In March 2020, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript is included in the claims file. Following certification to the Board of the present appeal, the Veteran submitted new evidence in support of his claim. However, as the evidence was submitted by the Veteran, referral to the RO for initial consideration of the evidence is not necessary. See 38 C.F.R. § 1304(c). On appeal, the Veteran contends that the exposure to the contaminants in the water supply at Camp Lejeune (CLCW) have caused him fatty liver (hepatic steatosis). A presumption of service connection arises for certain diseases if the disease manifests itself to a degree of 10 percent or more following exposure to contaminants present in the water supply at Camp Lejeune. Service at Camp Lejeune means no less than 30 days of 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. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). 38 C.F.R. § 3.309(f) specifically lists the diseases that qualify for a presumption of service connection for those who served at Camp Lejeune. Those diseases include the following: kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. Fatty liver (hepatic steatosis) is not on that list. Therefore, an analysis on presumptive service connection is not warranted for the issue in this case, and the Board will analyze the Veteran’s claim only on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (1994); 38 C.F.R. § 3.309(f). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Upon review of the entire claims file, the Board finds that service connection for fatty liver (hepatic steatosis), to include as due to exposure to Camp Lejeune water supply contaminants, is denied. In this case, the service treatment records (STRs) are negative for any complaints, treatment for, or diagnosis of the claimed condition. Therefore, the evidence does not show that the Veteran experienced an event, injury, or illness in service. In addition, the evidence does not show that the Veteran’s disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. Post-service treatment records reveal that, since May 2013, the Veteran has been treated with lactulose and xifaxin for non-alcoholic steatohepatitis (NASH). Medical records further reflect that the Veteran underwent two liver biopsies in 2013 and 2014 that revealed fatty infiltration with a moderate quantity of macro fat, minimal portal inflammation, and no fibrosis. See November 2016 CAPRI records. The Board recognizes and accepts that the Veteran is being treated and currently takes medication for liver condition. Thus, the first element of service connection has been established. With respect to a direct service connection analysis, the Board recognizes and accepts that the Veteran was stationed at Camp Lejeune from January 4, 1979 until December 6, 1979 and December 21, 1979 until May 30, 1980. Thus, the Veteran is presumed to have been exposed to contaminants in the water supply during active service at Camp Lejeune during the relevant period. 38 C.F.R. § 3.307(a)(7)(iii). Thus, the second element of service connection is established. In the October 2016 VA specialist’s medical opinion, the examiner opined that the Veteran’s fatty liver disease is less likely as not related to, caused by, or the result of his exposure to contaminated water at Camp Lejeune. He reasoned that the Veteran has two very well-defined risk factors for fatty liver disease, (1) obesity and (2) borderline diabetes, and regular, although possibly not daily, alcohol use. Fatty liver disease, as a syndrome, has clearly defined causes, in this case related to the conditions of obesity and borderline diabetes, with a suggestion of at least alcohol as a possible third contributor. Moreover, the examiner stated in the rationale the following: No evidence exists to support attribution of fatty liver disease to environmental contamination with halogenated hydrocarbons, even though some evidence supports attribution to occupation. That latter literature suggests that hepatotoxicity results from interactions with other phenomena, including obesity and alcohol consumption. In the face of those three other well defined and recognized conditions, attribution of liver disease to organic solvents is not appropriate. Turning to the third element, the Board finds that such evidence is lacking. Private medical records dated in December 2017 include an opinion submitted by Dr. K.D., M.D. in which he stated the following: [The Veteran] has been diagnosed with [Non-alcoholic Steatohepatitis] (NASH). [The Veteran] has no previous history of alcohol use or abuse to contribute to this diagnosis. [The Veteran] states he had been exposed to the environmental pollutants at Camp Lejeune in the past. The contaminated water that he was exposed to at that time could have contributed to his fatty liver and NASH. [The Veteran] has a history of obesity and has recently been diagnosed with diabetes which can also cause fatty liver and NASH. However, I do not have any evidence to disprove the effects of the pollutants on his liver. [The Veteran] should be considered as a potential candidate for illness related to his exposure while serving at Camp Lejeune given his diagnosis of NASH. The Board finds the October 2016 VA opinion far more probative as it more thorough and explains in detail the Veteran’s disability. In this regard, the VA examiner is a specialist who possesses a Master of Public Health (M.P.H.) and a member in the Washington DC VA Medical Center Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project. Moreover, his medical opinion is supported by medical literature. See October 2016 CAPRI records. Thus, the Board affords this opinion considerable probative weight. In contrast, there is no indication Dr. K.D. has any expertise in this specialized area of medical science. Moreover, the opinion itself is inconclusive, stating that the Camp Lejeune contaminated water “could have contributed to his fatty liver and NASH . . . [and that he Veteran] should be considered as a potential candidate for illness related to his exposure while serving at Camp Lejeune.” A mere possibility cannot sustain a claim under VA law. It is well-settled law that medical opinions raising only a possibility of diagnosis or medical nexus are insufficient. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the hearing dated March 2020, the Veteran’s spouse testified that she is a registered nurse. Moreover, the spouse stated that the Veteran’s condition should be related to the chemical exposure due to the water. Additionally, the spouse testify that she knows that the Veteran’s NASH is one step above fatty liver and that the Veteran has not made it to the fibrosis stage yet. The spouse stated that in 2013 the Veteran was not as heavy as he is now (March 2020), and she thinks it was a contributing factor in his case considering the Veteran was a lot thinner and his lab work was a lot healthier. In the hearing dated March 2020, the Veteran also testified that he drank the water for a whole year and the body had totally weakened but, the Veteran did not provide evidence to substantiate his contention that any weakness he may have experienced was the result of the contaminants at the water supply at Camp Lejeune. Accordingly, the Veteran believes that there is a good possibility that it could have come from the water or maybe not. However, the Veteran, a lay person, is not competent to opine on the etiology of his liver condition. Whether his liver condition is related to his presumed exposure to contaminants in the water supply at Camp Lejeune is a complex medical question that requires specialized scientific training, knowledge, and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The lack of complaints of fatty liver (hepatic steatosis) in the STRs led the VA examiner to believe that such exposure etiologically could not be related to the Veteran’s service. While the Veteran alleged that has been experiencing liver issues due to chemicals in the contaminated water, the weight of the most probative and persuasive medical evidence of record does not support that contention. To the contrary, the medical evidence displays that the Veteran has been taking medication for NASH since May 2013 thirty-three years after separation from service. Therefore, the Board finds that the weight of the most probative, persuasive medical evidence is against a nexus evidence to support a connection between the Veteran’s presumed exposure to Camp Lejeune water contaminants and his current fatty disease. Because a preponderance of the evidence weighs against the Veteran’s claim for entitlement to service connection for fatty liver disease, the appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, supra; 38 C.F.R. § 3.303(a). Since VA has obtained all relevant identified records and has satisfied its duty to provide an examination and obtain a medical opinion, its duty to assist in this case is satisfied. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has raised any other specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Javier Peluyera, 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.