Citation Nr: 21068969 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-26 477 DATE: November 17, 2021 ORDER Service connection for hepatic steatosis is denied. Service connection for esophageal varices is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's hepatic steatosis had its onset in or is otherwise related to his active duty service, to include as due to exposure to contaminants at Camp Lejeune. 2. The preponderance of the evidence is against a finding that the Veteran's esophageal varices had its onset in or is otherwise related to his active duty service, to include as due to exposure to contaminants at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatic steatosis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for esophageal varices have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 September 1962 to August 1964. In January 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In a decision issued in May 2019, the Board denied service connection for esophageal varices and hepatic steatosis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a Memorandum Decision vacating the Board's May 2019 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in the Memorandum Decision. Specifically, the Court found that the Board erred by not discussing a June 2015 medical opinion by Dr. S. The Court further instructed Board to consider whether the Veteran raised a challenge to the December 2013 VA subject matter expert's competence. Lastly, the Court noted that the December 2013 VA examiner did not explain how being overweight was a risk factor in providing an opinion as to the etiology of the Veteran's liver condition. In a March 2021 decision, the Board remanded the matters for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants present in the water supply at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. Persons residing or working at Camp Lejeune from August 1, 1953, to December 31, 1987, were potentially exposed to drinking water contaminated with volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride that were in the on-base water-supply systems. 38 C.F.R. § 3.307(a)(7). If a veteran 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). Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Entitlement to service connection for hepatic steatosis and esophageal varices. The Veteran seeks service connection for esophageal varices and hepatic steatosis, which he contends are due to his active duty service. A review of the record establishes that the Veteran has current diagnoses of esophageal varices and hepatic steatosis. See VA Treatment Record received May 2015. Such evidence is sufficient to meet the first element of service connection, the existence of a current disability, for both claims. However, the Veteran's service treatment records do not show any complaints, symptoms, treatment, or diagnosis for any esophageal or liver disorders. In fact, the Veteran contends his liver disorder symptoms began around 2000. See January 2019 Hearing Transcript. The Veteran was diagnosed with hepatic steatosis in approximately October 2003 and esophageal varices in approximately April 2005. Therefore, it is not shown that the Veteran's esophageal varices or hepatic steatosis had their onset in service. Notably, it is not the Veteran's contention that his claimed conditions manifested in service and continued. Rather, he contends he is entitled to service connection for esophageal varices and hepatic steatosis as he was exposed to contaminants while stationed at Camp Lejeune. See VA Form 9 received August 2015. As the Veteran's service treatment records and personnel records indicate that he was stationed at Camp Lejeune for more than the required 30 days, he is presumed to have been exposed to contaminants while stationed at Camp Lejeune. As indicated above, neither hepatic steatosis nor esophageal varices are subject to presumptive service connection due to contaminated water at Camp Lejeune. Nevertheless, even though hepatic steatosis and esophageal varices may not be presumed to be related to the Veteran's exposure to contaminated water at Camp Lejeune, he is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In December 2013, a VA medical opinion was obtained to evaluate the etiology of the Veteran's hepatic steatosis. Based upon the Veteran's time at Camp Lejeune, the examiner calculated his estimated level of solvent exposure during that time and found his exposure to be of a low potential magnitude. Specifically, the examiner found that his levels of solvent exposure for trichloroethylene (TCE) was several orders of magnitude below a "No Adverse Effect Level" (NAEL) for liver conditions in lab animals. Regarding benzene, the examiner found that the Veteran was exposed to a level which had not caused disease in lab animals. The examiner noted that while high dose solvent exposure can be hepatoxic, the relationship of low dose solvent exposures to liver conditions has been controversial and most epidemiologic studies of human populations have studied very high solvent exposures such as uncontrolled high occupational exposures over many years of exposure. The examiner noted that these studies did not reflect the low intensity or lower duration of exposure found the in the Veteran's case at issue. The examiner further noted that the Veteran's providers diagnosed his cirrhotic condition to be caused by fatty liver which led to nonalcoholic steatohepatitis, although the Veteran's 2003 liver biopsy did not show this, which was likely attributable to random sampling that missed the site of involvement. Furthermore, the examiner noted that fatty liver disease is very common, occurs in about 33 percent of European-Americans, and is observed in up to 75 percent of obese people, 35 percent of whom progress to fatty liver disease, despite no evidence of excessive alcohol consumption. The examiner explained that fatty liver has been thought to be caused by obesity, hyperlipidemia, and certain medications, and that smoking has been associated with insulin resistance and with fatty liver in at least one major study. The examiner concluded that based on a lack of a positive association between health effects in the medical literature of the low levels found at Camp Lejeune and the presence of other conditions which are likely causally related to liver disorder, and based on risk factors for fatty liver, including overweight status, hyperlipidemia, and smoking, it was not likely that the Veteran's fatty liver disorder was caused or aggravated by his exposure to solvents at Camp Lejeune. The examiner included the Veteran's solvent exposure calculations with his report. See December 2013 VA Medical Opinion. The Board finds the December 2013 VA medical opinion to be of limited probative value as it was based on an inaccurate factual premise. In relevant part, the examiner maintained that fatty liver is thought to be caused by obesity, hyperlipidemia and certain medication; however, in his conclusion he stated that the Veteran's overweight status was likely causally related to his liver disorder. The Board notes that the examiner did not indicate that the Veteran was obese, nor did he explain how the Veteran's overweight status contributed to his liver disorder. For this reason, the Board awards limited probative value to the December 2013 VA medical opinion. In correspondence received in July 2015, the Veteran appeared to assert that the December 2013 VA examiner was not competent to provide a medical opinion as he was a pulmonary doctor rather than a liver doctor. See Correspondence received July 2015. The Board is entitled to accept the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the Veteran to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Here, the examiner's competency is challenged based solely on the examiner not being a liver doctor. Although the VA examiner is noted to be a pulmonary specialist, the examiner carries the title of "Staff Physician" and carries a Doctor of Medicine degree. The VA examiner has a medical background enough to give a competent opinion. Further, the examination report indicates that the examiner is a Camp Lejeune contaminated matter expert committee member. Thus, the Board finds that additional evidence or compelling argument has not been submitted to indicate that the VA examiner is not otherwise qualified to offer a nexus opinion pursuant to 38 C.F.R. § 3.159(a)(1). Accordingly, the Board finds that the December 2013 VA examiner was competent to provide a medical opinion; however, as indicated above, the Board awards limited probative value to the December 2013 opinion due to it being based on an inaccurate factual premise. A review of the Veteran's VA treatment records reveals that in July 2015, a VA physician stated it was quite clear that the Veteran's liver cirrhosis was a result of the chemical/toxin exposure during his time at Camp Lejeune. While the Board acknowledges this opinion, the VA physician provided no rationale supporting this position. Accordingly, the Board awards limited probative value to the July 2015 VA treatment record. See STR Medical received August 2015. In December 2018, the Veteran submitted a private medical opinion that found it was more likely than not that the Veteran's hepatic steatosis and esophageal varices, which are a result of his liver disease, were "caused by and/or aggravated by" his exposure to contaminated water at Camp Lejeune. The private medical examiner referenced the 2015 Institute of Medicine's (IOM) Review of VA Clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation. The guidelines state that informed clinical judgment can help identify Veterans or family members whose hepatic steatosis may have resulted from exposure to drinking water at Camp Lejeune on the basis of its persistence since residing at Camp Lejeune and the absence of other likely causes. The guidance states that "if a patient's clinical course is atypical or progresses faster than expected, then exacerbation by TCE, PCE or other organic solvents from Camp Lejeune should be considered." However, the IOM report notes that there is no evidence that solvent exposure would result in an atypical presentation or rapid progression of hepatic steatosis at a later date. The private examiner concluded that the Veteran's clinical course was atypical and progressed faster than expected, which was evidenced by the severe liver damage resulting in liver fibrosis and portal hypertension leading to the development of esophageal varices. Based on this finding in conjunction with the IOM report, the private examiner concluded that the Veteran's hepatic steatosis and esophageal varices were more likely than not caused by his solvent exposure at Camp Lejeune. Additionally, the private examiner maintained that the December 2013 VA examiner did not follow the guidelines because the VA examiner failed to consider the severity of the Veteran's liver damage as evidenced by the presence of esophageal varices. Despite these findings, the Board notes that the private examiner failed to consider the onset of the Veteran's liver disease symptoms decades after the exposure to Camp Lejeune contaminants. Importantly, as mentioned above, the 2015 IOM report states that, "there is no evidence that solvent exposure would result in an atypical presentation or rapid progression of hepatic steatosis at a later date." As the private examiner only considered the severity, not the onset or duration, of the Veteran's liver disease, the private examiner demonstrates that he is uninformed of the pertinent factual premises of the Veteran's issues at hand. The private examiner did not provide a fully articulated opinion by failing to address specifically why the Veteran's hepatic steatosis was caused by the Camp Lejeune solvent exposure. The opinion is not supported by a reasoned analysis, as the private examiner's primary rationale relies on the sentence regarding whether the clinical course is atypical or progresses faster than expected, which remains unsupported by medical evidence in any study, according to the 2015 IOM report. Therefore, the Board finds the December 2018 private medical opinion to be of little probative value. In October 2020, Dr. L.S., a VA physician, opined on the etiology of the Veteran's hepatic steatosis. Dr. L.S. held that the most common cause of hepatic steatosis in Western populations was metabolic syndrome; however, chemicals such as those encountered in the Camp Lejeune water supply, have also been found to cause hepatic steatosis. Dr. L.S. concluded that although the Veteran did have metabolic syndrome, as evidenced by diabetes mellitus, exposure to steatosis causing chemicals would be additive to any liver related effects of diabetes/ metabolic syndrome. See VA Treatment Record received October 2021. Despite this opinion, the Board notes that Dr. L.S. failed to provide an explanation addressing how Camp Lejeune contaminated water contributed to the Veteran's hepatic steatosis. For this reason, the Board awards limited probative value to the October 2020 medical opinion from Dr. L.S. In May 2021, a VA medical opinion was obtained to address whether the Veteran's hepatic steatosis and esophageal varices were caused or related to his active duty service, to include as due to contaminated water at Camp Lejeune. Following a review of the record, the examiner opined that it was less likely than not that the Veteran's hepatic steatosis and resulting esophageal varices were caused by or related to active duty service, including exposure to contaminated water at Camp Lejeune. The examiner indicated that he had reviewed the Camp Lejeune Health Studies document, which indicates that causes of death include non-cancerous liver diseases; however, he stated it was uncertain whether this category of disease included hepatic steatosis/cirrhosis, or cryptogenic cirrhosis. The examiner further noted that insulin resistance was a key factor in the development of hepatic steatosis, and potentially steatohepatitis. Further, the examiner held that while it is possible that being overweight was a contributing factor to hepatic steatosis, it would likely not have been significant. To the contrary, the examiner held that a review of the medical literature indicated it was most likely that the Veteran's hepatic steatosis was caused by a combination of factors to include insulin resistance, hyperlipidemia, and genetic factors. In this regard, the examiner stated that twin studies have demonstrated a strong hereditary component to both hepatic fat content and hepatic fibrosis. Further, he held that at least four genetic variants in four genes responsible with encoding hepatic and lipid metabolism regulatory proteins are associated with the development of nonalcoholic fatty liver disease and that genetic polymorphisms involved in insulin signaling are associated with hepatic fibrosis. Lastly, the examiner indicated that a review of the medical literature revealed a number of factors that were potentially involved in the development of hepatic steatosis; however, low level toxin exposure to TCE, PCE, benzene or vinyl chloride was not among them. See May 2021 VA Medical Opinion. The Board finds that this opinion is highly probative, as it was based on a thorough review of the Veteran's claims file, was well reasoned, and adequately supported. Lastly, in October 2021, the Veteran submitted a private medical opinion dated September 2021 from Dr. S.B. Initially, Dr. S.B. indicated that he was both physician of internal medicine, and also had a PhD. in pharmacology. Following a review of the record and relevant medical treatise evidence, Dr. S.B. opined that the Veteran's nonalcohol steatosis and complications of esophageal varices were more likely than not secondary to Camp Lejeune contaminated water. Dr. S.B. explained that nonalcoholic steatosis was classified in two types; primary, which is related to obesity and diabetes in the absence of excessive alcohol intake; and secondary, which is toxin or drug induced. Additionally, Dr. S.B. explained that Camp Lejeune contaminants had been noted by several studies to have components of trichloroethylene (TCE) tetrachloroethylene (PCE), and 70 other contaminants, to include benzene. Dr. S.B. acknowledged that a July 2009 report released by the National Resource Council of the National Academies found that PCE and TCE found that contamination could not be linked to any health problems; however, he noted that the report failed to address contaminants other than PCE and TCE. Moreover, Dr. S.B. held that numerous studies had identified 14 conditions as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture of exposure. Further, he indicated that multiple studies found a strong nexus between dioxin (benzene) and nonalcoholic steatosis (NASH). In this regard, Dr. S.B. stated that organic solvents are retained in some body tissues for a long time (even decades), so target organ exposure continues even after external exposure ceases. He also noted that research indicated an association between exposure to benzene, epigenetic alterations, and increased susceptibility to develop several diseases, such as cancer and inflammatory diseases. Further, he held that the studies showing a nexus between NASH and dioxin/benzene were not addressed by the previous VA examiner. Lastly, Dr. S.B. took issue with the methodology employed by the VA to calculate doses of contaminants that servicemembers were exposed to at Camp Lejeune. In particular, he held that the dose of Camp Lejeune water contaminant exposure was highly variable and not quantifiable for each Veteran. Further, he stated that the conclusion of Dr. G., wherein he maintained that the Veteran's exposure to Camp Lejeune water contaminants was, "felt to be low" was speculative, and therefore insufficient to conclusively deny the Veteran's claim. Based on the foregoing, Dr. S.B. stated that, "I am convinced without reservations that the Veteran's NASH is most likely than not secondary to [Camp Lejeune contaminated water] exposure." See Private Treatment Record received October 2021. Despite the detailed opinion above, the Board finds the September 2021 private medical opinion to be based on an incomplete factual premise and therefore insufficient for rating purposes. In particular, as Dr. S.B. noted, NASH is classified into two types; primary, which is related to obesity and diabetes in the absence of excessive alcohol intake; and secondary, which is toxin or drug induced. However, Dr. S.B. only provided an opinion as to whether the Veteran's hepatic steatosis is due to toxin exposure, and did not consider whether the condition may be related to his diabetes, which is listed as a diagnosis in the Veteran's VA treatment record. As the private examiner did not consider what effect the Veteran's diabetes may have had on the development of hepatic steatosis and esophageal varices, the Board awards limited probative value to the September 2021 private medical opinion. See VA Treatment record received May 2015. The Veteran maintains in-service exposure to contaminated water while stationed at Camp Lejeune has caused his current liver disability and the Board has considered his assertion. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), but as to the specific issue in this case, the potential relationship between the Veteran's liver condition and his solvent exposure is complex in nature and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, the Board finds that the preponderance of the evidence is against the claim. As discussed above, the Board finds the May 2021 VA medical opinion to be the most probative evidence of record with regard to the etiology of the Veteran's hepatic steatosis and esophageal varices. The examiner based his opinion on a thorough review of the record, the Veteran's medical history, and provided a well-supported rationale. There are no probative medical opinions to the contrary. (Continued on the next page) Based on the foregoing, the Board finds that the preponderance of the evidence is against the claims. The presumptions do not apply to the Veteran's esophageal varices and hepatic steatosis, and there is no other competent evidence linking the Veteran's disorders to his military service, to include as due to contaminated water at Camp Lejeune. The benefit of the doubt doctrine is not for application in this case. Accordingly, the Veteran's claims for entitlement to service connection for hepatic steatosis and esophageal varices are denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.