Citation Nr: 21066546 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-46 717A DATE: November 1, 2021 ORDER 1. Entitlement to service connection for diabetes mellitus, to include as secondary to Camp Lejeune contaminated water (CLCW), is denied. 2. Entitlement to service connection for kidney disease, to include as secondary to CLCW, and/or as secondary to diabetes mellitus, is denied. FINDINGS OF FACT 1. The Veteran's diabetes mellitus was not manifested in service or within a year following his discharge from active duty, and the preponderance of the evidence is against a finding that it is etiologically related to his service, to include as due to exposure to CLCW therein. 2. The Veteran's kidney disease was not manifested in service or (as nephritis) within a year following his discharge from active duty, and the preponderance of the evidence is against a finding that it is etiologically related to his service, to include as due to exposure to CLCW therein; diabetes mellitus is not service connected. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus is not warranted. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. Service connection for kidney disease is not warranted. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1958 to November 1962, including service at Camp Lejeune. He died in April 2014. The appellant is his surviving spouse and has been substituted for him as claimant/appellant for claims pending before VA when he died. These matters are before the Board on appeal from an October 2012 Department of Veterans Affairs (VA) rating decision. In February 2021, a Board hearing was held before the undersigned; a transcript is in the record. At the hearing the appellant requested, and was granted, a 60-day abeyance period for submission of additional evidence; additional evidence was received. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-7 (Fed. Cir. 2004). Certain chronic diseases (to include diabetes mellitus and nephritis) may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for diabetes mellitus and nephritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For diseases listed in 38 C.F.R. § 3.309(a), service connection may be established by showing continuity. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to provide a presumption of service connection for certain diseases (listed in 38 C.F.R. § 3.309(f) based on exposure to contaminants in the water supply at Camp Lejeune. The eight diseases listed in § 3.309(f) 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. 38 C.F.R. §§ 3.307(a), 3.309(f); diabetes mellitus and kidney disease (other than cancer) are not among the eight listed diseases warranting presumptive service connection. Service connection may nonetheless be established as due to CLCW by affirmative evidence supporting that theory of entitlement. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to CWCL, is denied. 2. Entitlement to service connection for kidney disease, to include as due to exposure to CWCL, and/or as secondary to diabetes mellitus, is denied. The appellant alleges that the Veteran's diabetes mellitus and kidney disease were related to his exposure to contaminated drinking water at Camp Lejeune. The Veteran's service personnel records confirm that he was stationed at Camp Lejeune from February 1959 to November 1962. His STRs are silent for complaints, findings, treatment, or diagnoses related to diabetes mellitus or kidney disease. On November 1962 service separation examination, the genitourinary and endocrine systems were normal on clinical evaluation; in a contemporaneous report of medical history, he denied any history of frequent or painful urination, kidney stone or blood in urine, or sugar or albumin in urine. On September 2012 VA examination, the diagnosis was chronic kidney disease with end stage renal disease. The Veteran reported that he received diagnoses of diabetes mellitus, type 2 and hypertension in 1989, at age 50, and that his chronic kidney disease was diagnosed in about 1999. He reported having acute renal failure after surgery in April 2009 and was on inpatient dialysis for 30 days; he did not require dialysis after discharge from the hospital. He related that his renal failure progressed to end stage renal disease, and he was started on dialysis again in January 2012; he was currently on hemodialysis 3 times per week. The examiner noted that the Veteran did not have a benign or malignant neoplasm or metastases related to his diagnosed kidney disease. Following a physical examination, the examiner opined that the Veteran's kidney disease was less likely than not incurred in or caused by exposure to contaminated water at Camp Lejeune in service. The examiner explained that the Agency for Toxic Substances and Disease Registry (ATSDR) determined that drinking small amounts of trichloroethylene (TCE) for long periods may cause liver and kidney damage, but that according to the National Research Council, the "highest levels of either TCE or PCE measured in the mixed water samples at Camp Lejeune were much lower than the lowest dose that caused adverse effects in the most sensitive strains and species of laboratory animals." The examiner noted the Veteran's report that he lived in the barracks on base at Camp Lejeune for 2 years and in a trailer park for 1 year and 9 months. The examiner opined that a review of the literature from the National Kidney Foundation states that the two main causes of chronic kidney disease are diabetes and high blood pressure, which are responsible for up to two-thirds of the cases. The examiner noted that a review of the Veteran's medical history of diabetes mellitus type 2 and hypertension since 1989 and the development of chronic renal failure in 1999 indicates that his current end stage renal failure is most likely related to his diabetes and hypertension. The examiner opined that it is less likely than not that the Veteran's end stage renal disease is related to exposure to contaminated water at Camp Lejeune. In February 2016, a VA physician who is a member of the subject matter expert panel on the Camp Lejeune Contaminated Water Project, and who reviewed the record, provided a medical advisory opinion in this matter. The physician opined that the Veteran's diagnosed chronic kidney failure is less likely as not caused by or a result of his exposure to CLCW. The provider noted that the first full medical record available is of admission for diabetes management in April 2009; the record there states that he developed acute renal failure on top of chronic renal failure after bilateral inguinal hernia repair. The provider noted that a February 2012 nephrology consult documented a long list of diagnoses associated with kidney damage, hypertension, hypothyroidism, and obesity, and there was no discussion of etiology; the only diagnosis listed is chronic kidney disease, unspecified. The provider noted that hospitalizations for, among other things, worsening kidney failure in 2012 preceded a hospitalization in 2014 when the Veteran expired after two days. The provider noted that the death certificate lists cardiorespiratory arrest in the presence of end-stage renal disease on dialysis, type II diabetes, and a gastrointestinal bleed with anemia. The provider cited other possible risk factors for the Veteran including diabetes, hypertension, and obesity. The provider opined that the normal exit examination from service in 1962 with the length interval to presentation of progressive kidney disease speak against solvents-induced kidney damage around 1960. The provider opined that diabetes and hypertension are far more clearly associated with kidney failure in this clinical presentation. The provider noted that the record documents poor control of diabetes, putting the Veteran at risk for kidney disease, and the record also documents neurological complications of diabetes, clarifying that the poor control had adverse consequences for other organs. The provider noted that the presence of a normal urinalysis on separation from service in 1962 suggests the absence of kidney disease in 1962. The provider stated that the date of onset of kidney disease is unclear, but the record documents acute exacerbation around surgery, at an unknown date. The provider opined that, in all, the Veteran had two active, well-recognized, causes of chronic kidney disease and appears to have had no kidney disease on separation of service. The provider opined that the dose of organic solvents commonly associated with the development of disease is substantially higher than that encountered in low-level environmental contamination such as occurred at Camp Lejeune, and the clinical course here is not suggestive of an etiology. The provider opined that exposure to contaminated water at Camp Lejeune did not to contribute to or cause the development of the Veteran's renal disease. In February 2019, a second VA physician who is a member of the subject matter expert panel on the Camp Lejeune Contaminated Water Project, and who reviewed the record, provided a medical advisory opinion in this matter. The physician opined that the Veteran's end stage renal disease was less likely than not caused by or a result of his exposure to CLCW. The physician noted that there are multiple risk factors for chronic kidney disease, including diabetes mellitus (the leading cause of chronic kidney disease and end stage renal disease in both developed and developing countries), hypertension (which has long been a defined risk factor for both chronic kidney disease and end stage renal disease, and accounts for 27% of all end stage renal disease patients in the United States), family history, being male, race, age, smoking, obstructive sleep apnea, alcohol and recreational drugs, and excessive use of analgesic drugs and exposure to heavy metals. The provider cited the website for the Agency for Toxic Substances and Disease Registry, and described in detail several cohort studies regarding the health effects linked with solvent exposure at Camp Lejeune. The provider noted that the medical literature shows that end stage renal disease was found to be elevated and statistically significant in workers exposed to medium to high solvent exposure levels for more than 10 years, whereas the Veteran spent 3.8 years at Camp Lejeune at levels below those identified in the studies. The provider further noted that the Veteran had two of the primary risk factors for developing end stage renal disease: hypertension and diabetes. The provider opined, given the multiple risk factors the Veteran had for chronic kidney disease (hypertension, diabetes, age at diagnosis (72), gender (male), sleep apnea, and long latency from exposure to diagnosis (50 years)), that his end stage renal disease on dialysis was less likely as not caused by or related to his exposure to CLCW. The appellant submitted a February 2021 "Nexus Statement" signed by a family medicine practitioner who stated that she reviewed the treatment records since the Veteran's separation from service and opined that his renal failure/kidney disease was "as most likely caused or a result of (51% probability or better)" related to an onset or events while in service. The provider opined, "Secondary to exposure at Camp Lejeune water supply is a contributory factor to renal failure and CKD [chronic kidney disease]." The appellant also submitted a March 2021 "Nexus Statement" signed by an internal medicine practitioner who stated that he reviewed the treatment records since the Veteran's separation from service and opined that his renal failure/kidney disease was "as most likely caused or a result of (51% probability or better)" related to an onset or events while in service. The provider opined, "Due to exposure from Camp Lejeune water it is very likely a major contributor to his renal failure (listed as contributing factor on death certificate)." It is not in dispute that the Veteran had diabetes mellitus and kidney disease. His service personnel records show that he was stationed at Camp Lejeune from February 1959 to November 1962. Accordingly, his exposure to contaminated drinking water at Camp Lejeune is conceded, and not in dispute. The critical question remaining is whether there is competent evidence of a nexus between his service, to include his exposure to contaminated drinking water therein, and his diabetes mellitus and kidney disease. There is no evidence, or allegation, that either the Veteran's diabetes mellitus or his kidney disease was manifested in service or (kidney disease as nephritis) in the first postservice year. Diabetes mellitus was not diagnosed until 1989 (by the Veteran's self-report, as records from that time are unavailable), approximately 27 years following separation from service, and kidney disease was not diagnosed until 1999, approximately 37 years following separation from service. Consequently, service connection on the basis that either diabetes mellitus or kidney disease became manifest in service and persisted, or on a presumptive basis (for diabetes mellitus or the kidney disease of nephritis under 38 U.S.C. §§ 1112, 1137) is not warranted. There is also no evidence of postservice continuity of diabetes or kidney disease symptoms that would warrant service connection based on continuity (under 38 C.F.R. § 3.303(b)). Inasmuch as neither diabetes mellitus nor any kidney disease other than kidney cancer is listed among the 8 diseases for which presumptive service connection based on exposure to contaminated water at Camp Lejeune is warranted, service connection for the claimed disabilities based on such exposure may not be presumed. 38 C.F.R. §§ 3.307(a), 3.309(f). What remains then is the question of whether, in the absence of a showing of onset in service and continuity since, the Veteran's diabetes mellitus and kidney disease are otherwise shown to be etiologically related to his service. The record includes both medical evidence that tends to support the appellant's claims and medical evidence against her claims. The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Supporting the appellant's claims are statements submitted by the appellant in February and March 2021 from two physicians (who are Board-certified physicians in family medicine and internal medicine, respectively, and are competent to provide medical opinions in these matters). These providers opined that the Veteran's renal failure/kidney disease was at least as likely as not caused by his exposure to contaminated water at Camp Lejeune, based on a rationale that such exposure is very likely a major contributor to his renal failure (listed as contributing factor on death certificate). The February 2016 and February 2019 opinions against the appellant's claims are by VA physicians who, as members of the Camp Lejeune Contaminated Water Project, have specific subject matter expertise and are also at least equally competent to offer medical opinions in these matters. The providers expressed familiarity with the entire record and provided clear explanations of rationale for the opinion that the Veteran's kidney disease was less likely than not caused by exposure to contaminated water at Camp Lejeune. In contrast to the brief and conclusory February and March 2021 opinions by the private providers, the consulting VA physicians cited to extensive medical studies and literature, noting that research does not suggest an association exists between kidney disease and contaminated drinking water at Camp Lejeune (as studies have not shown a greater incidence of kidney disease among servicemen stationed there). Furthermore, there are significantly more detailed explanations of rationale with citation to accurate supporting factual data from the record. The Board finds the VA consulting physicians' opinions highly probative evidence in these matters. Considering the limited rationale (and lack of citation to supporting textual evidence) provided, the Board finds that the February and March 2021 private opinions merit far less probative value in these matters. Comparing the two private providers' opinions in tandem with the detailed explanation by the VA consulting experts, who cite more extensively and accurately to supporting medical studies, and provide much more detailed rationale, the Board finds the VA providers' opinions merit substantially more probative value than those by the private physicians, and finds them persuasive in these matters. Because service connection for diabetes mellitus has not been established, and is denied on appeal herein, the secondary service connection theory of entitlement for kidney disease must also be denied. The Board has considered the appellant's and the Veteran's own assertions that his diabetes mellitus and kidney disease are due to contaminated water exposure. As laypersons, they are not competent to provide an opinion regarding the etiology of his diabetes mellitus or kidney disease (as that is a complex medical question). As discussed above, the opinions the appellant has provided in support of these claims are outweighed in probative value by the VA experts' opinions. Considering the foregoing, the Board concludes that the preponderance of the evidence is against these claims. Accordingly, the appeal seeking service connection for diabetes mellitus and kidney disease must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.