Citation Nr: 21070620 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 09-37 060 DATE: November 24, 2021 ORDER Entitlement to service connection for a cardiac disability, to include claimed as due to exposure to contaminated water at Camp Lejeune (CLCW) is denied. FINDING OF FACT The Veteran's cardiac disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise shown to be etiologically related to an event, injury, or disease in service to include his presumed exposure to CLCW. CONCLUSION OF LAW Service connection for a cardiac disability, to include as due to exposure to CLCW, is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 1954 to June 1960. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 Department of Veterans Affairs (VA) rating decision. In September 2010 a Travel Board hearing that was held before the undersigned. in January 2011, August 2012, September 2013, October 2014, November 2017, March 2021, and July 2021, the case was remanded further development. Entitlement to service connection for a cardiac disability, to include claimed as due to exposure to CLCW Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 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). 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). Certain chronic diseases, including arteriosclerosis, cardiovascular disease (including hypertension and organic heart disease), and endocarditis (which includes all forms of valvular heart disease), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or were manifested to a compensable degree within a presumptive period (here, one year) following separation from service; or, were noted in service (or during the presumptive period) with continuity of symptomatology attributable to the chronic disease since service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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 based on exposure to contaminants in the water supply at Camp Lejeune. Essentially, as amended, 38 C.F.R. §§ 3.307 and 3.309 establish a presumption of service connection for veterans who served at Camp Lejeune for no less than 30 days (consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987, and have a diagnosis of any of the following eight diseases, even though there is no record of such disease during service: 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). Such listed diseases shall have to become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). 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). The Veteran alleges that he has cardiac disability that is related to his service. At a September 2010 Board hearing, he testified that he experienced stress in service which played a role in development of his cardiac diagnoses. He stated that he had received no treatment or diagnosis referable to his heart before 1994. He has also claimed that his exposure to CLCW resulted in his heart condition. The Board concludes that, while the Veteran has a current diagnosis of a cardiac disability, and evidence shows that during service he is presumed to have been exposed to CLCW, the preponderance of the evidence weighs against finding that his disability began during service or is otherwise related to an injury, event, or disease in service. Service personnel records show that the Veteran served on active duty from December 1954 to June 1960, during which time he was stationed at Camp Lejeune for more than 30 days. His service treatment records do not show any complaints, treatment, or diagnosis referable to a cardiac disability. On June 1960 service separation physical examination, his heart was normal on clinical evaluation, and there was no indication of a cardiovascular disability such as hypertension. His blood pressure was 118/78, and his weight was 182 pounds on his medium build, 68.5-inch frame. Following service, VA and private treatment records do not indicate cardiac symptoms for decades after service. In November 2008, the Veteran filed a claim seeking service connection for "heart failure". With his claim, the Veteran submitted a November 2008 statement of his private physician, V.E.T., M.D., who noted the Veteran had a normal ejection fraction (60 percent) on echocardiogram in 1990 but an ejection fraction of 45 percent on stress testing in 1997; she stated she was unable to identify a diagnosis of heart failure to a time prior to 1997. Private records show there were complaints of chest pain in the late 1980s (when the Veteran was noted to be obese). An April 1988 EKG showed normal sinus rhythm and lateral subendocardial ischemia. A December 1988 EKG showed a T-wave abnormality consistent with lateral myocardial ischemia, but a subsequent echocardiogram was normal. An October 1989 stress test showed transient ischemic changes of anterior and posterior segments of the left ventricular myocardium. Further testing from 1991 to 1993 showed premature ventricular beats. A December 1994 record indicates the Veteran had a normal cardiac catheterization in 1990 i.e., no coronary artery disease per his cardiologist (which was also noted in a March 1996 record), but had had documented ventricular bigeminy (sensation of the heart skipping a beat). A December 1995 private record notes the Veteran was followed by a cardiologist for "ventricular irritability." Records in October 1997 note complaints of chest pain; on chest X-ray, there was no acute cardiopulmonary disease, but on stress testing there was impaired left ventricular function that was suggestive of ischemia of previous infarct. A March 2000 record notes an assessment of chest pain, and that the Veteran had a negative cardiac evaluation (stress testing then was negative for ischemia and preserved left ventricular systolic function). An April 2000 record indicates that tests showed mild left ventricular hypertrophy. Further stress testing in February 2001, due to unstable angina, showed normal left ventricular systolic function and no evidence of ischemia. An August 2003 echocardiogram showed normal left ventricular cavity size with moderate concentric wall hypertrophy and normal systolic function. An October 2008 record notes a history of atypical chest pain. A March 2009 record shows an assessment of coronary artery disease among a list of other ailments, although no signs or symptoms of the disease were noted (i.e., the basis for such a diagnosis was not established). An April 2013 VA heart examination found the Veteran had left ventricular hypertrophy due to longstanding hypertension. In May 2013, the Veteran underwent VA stress testing and an echocardiogram to rule out coronary artery disease and congestive heart failure [it was noted at the time that he had a "history" of coronary artery disease, despite there being no clear evidence of such], which showed minor abnormalities (his heart was "strong" although he "may have some right sided heart failure"). In October 2018, he was admitted to a private hospital with complaints of chest pain and nausea, and underwent angioplasty and stenting due to obstructive coronary artery disease. Thereafter, VA treatment records, such as those in August 2019 and March 2020 show a diagnosis of coronary artery disease (also a diagnosis of congestive heart failure in March 2020). An April 2021 VA medical opinion notes the Veteran had coronary artery disease. VA medical opinions by two different examiners in August 2021 identify the Veteran as having left ventricular hypertrophy and coronary artery disease. From the foregoing medical history survey, it is not in dispute that the Veteran currently has a variously-diagnosed cardiac disability. The question before the Board is whether his current disability, to include coronary artery disease and left ventricular hypertrophy began during service or is, at least as likely as not, related to an injury, event, or disease in service. The Board initially finds that the Veteran's current cardiac disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with continuity of attributable symptomatology. Moreover, the competent evidence of record is against a finding that his cardiac disability is etiologically related to an event, injury, or disease in service, to include his presumed exposure to CLCW. Medical records show that the Veteran did not have any cardiac (or cardiovascular) complaints or diagnosis until decades after his June 1960 separation from service, and also decades beyond expiration of the applicable presumptive period for cardiovascular diseases. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran is competent to report heart-related symptoms during and since service (but did not do so). He is not competent to determine that any post-service symptoms were manifestations of his current cardiac disability. That issue is medically complex, as it requires knowledge of the pathogenesis of coronary disease and ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Regardless, the Veteran testified at the Board hearing that he did not receive treatment for, or a diagnosis of, a heart disability before 1994. While private medical records show complaints of chest pain beginning several years prior to 1994, he has not alleged that he had any heart-related symptoms, including chest pain, during service or for many years thereafter. The record contains medical opinions addressing whether the Veteran's cardiac disability is at least as likely as not related to an injury, event, or disease in service. In an April 2013 VA opinion, the provider concluded that it was less likely than not that the cardiac condition (diagnosed as left ventricular hypertrophy) was incurred in or caused by the claimed injury, event, or illness in service because it was related to longstanding (non-service-related) hypertension. She also noted that the Veteran was "high risk" for a vascular event, given his multiple risk factors (type 2 diabetes mellitus, hyperlipidemia, advanced age, and being male), but that there was no current evidence (by history or cardiac testing) of coronary artery disease. The April 2013 opinion is not fully adequate, particularly as it did not consider relevant treatment records that were subsequently obtained. Also, the Veteran raised a new theory of entitlement, alleging that his cardiac disability is related to his conceded exposure to CLCW, which the examiner did not address. Under the provisions governing claims based on exposure to CLCW, the Veteran's diagnosed cardiac disability is not among the eight listed diseases warranting a presumption of service connection. Nonetheless, service connection may be established based on such theory of entitlement 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). The VA requested the Veteran to furnish scientific and/or medical evidence (e.g., a doctor's opinion with supportive evidence) to show his claimed disability is related to exposure to contaminants. See December 2019 supplemental statement of the case. Although he has not done so, the VA sought a medical opinion concerning whether his cardiac disability may be related to his presumed exposure to CLCW, as well as whether it may be related to service on another basis. In an April 2021 VA opinion, the consulting provider concluded that the Veteran's cardiac disability was less likely than not incurred in or caused by the claimed injury, event, or illness in service. She noted that there was no indication that the Veteran had coronary artery disease, which was initially treated in 2018 with the placement of two stents, during active duty. The VA sought another medical opinion because the April 2021 opinion did not discuss the Veteran's prior diagnosis of left ventricular hypertrophy and his allegation of stress in service including its role, if any, in the development of coronary artery disease. Also, there was no opinion regarding CLCW, and the Veteran's representative expressed concern that the examiner was not shown to have competence or expertise in cardiology. Therefore, the VA undertook additional medical inquiry, per the Board's July 2021 remand instructions. In August 2021, the VA sought two medical opinions one by a physician (M.D., M.P.H., board-certified in internal medicine with experience in occupational medicine), the other by a nurse practitioner (with extensive background credentials in cardiology). Both concluded that the Veteran's cardiac disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. To support his conclusion, the physician provided a long list of references, including studies on left ventricular hypertrophy, ischemic heart disease (coronary artery disease), the exposure of toxic substances, and the criteria for establishing epidemiologic evidence for a cause-and-effect relationship. The nurse practitioner also provided citations to medical literature pertaining to cardiovascular disease and left ventricular hypertrophy, to support his conclusion. In his opinion, the physician reviewed the pertinent service and post-service evidence, including service personnel and treatment records (with note of the Veteran's service at Camp Lejeune), VA examination and treatment reports and private records, and hearing testimony. He noted any relevant potential risk factors including family history, occupational history, pre/post service history/experiences, exposure to other related carcinogens, and other pertinent history. He stated the following risk factors of the Veteran "temporally and proximally preexisted" his cardiac condition "as would be expected in a pathophysiological manner to manifest" in him: morbid obesity, hypertension, diabetes mellitus, hyperlipidemia, and a family medical history of coronary artery disease. He then surveyed the Veteran's medical history, specifically referencing the records noting his risk factors and development of left ventricular hypertrophy and coronary artery disease that were definitively diagnosed in more recent years. He stated a presumption that the Veteran's exposure to the CLCW substances was associated with the development of the cardiac disability did not satisfy any of the principles contained in Hill's criteria, which is used to establish epidemiologic evidence of a causal relationship between presumed cause and an observed effect (widely used in public health research). He observed the Veteran's approximate length of exposure and noted that the expected clinical timeline after exposure to cardiotoxin in the workplace or general environment to the development of disease was typically measured in days or weeks after the exposure (depending on the toxin, dosage, exposure route, and exposure duration), rather than the lengthy (decades) period of time with the Veteran. He emphasized the Veteran's multiple risk factors that preceded his development of the cardiac disability as the cause rather than CLCW exposure. In his opinion, the nurse practitioner (who also examined the Veteran) diagnosed coronary artery disease with cardiac stents (placed in 2018) and congestive heart failure due to the coronary artery disease. He stated the etiology of the coronary artery disease was multifactorial to include hyperlipidemia, family history of coronary artery disease, and obesity. He specifically took note of the Veteran's most recent echocardiogram in September 2021, stating that it did not show left ventricular hypertrophy. He explained that the Veteran had had longstanding left ventricular hypertrophy, at least since an October 1997 echocardiogram showing it. He commented that left ventricular hypertrophy was not a condition but a symptom showing that longstanding hypertension was causing abnormal changes in the structural wall of the heart. He discussed the major risk factors that the Veteran had which caused him to develop coronary artery disease; these were the same as those identified by the physician, but he added obstructive sleep apnea, living a sedentary lifestyle, and having a poor diet. He also commented on the Veteran's allegation about stress from service resulting in the development of his cardiac disability, finding that "emotional stress can cause cardiovascular events" but that this was not the case for the Veteran, who "overwhelmingly" had other risk factors that contributed to his coronary artery disease development. Further, he explained that a 2018 coronary angiogram revealed evidence of plaque buildup in the Veteran's coronary arteries from his known obesity and hyperlipidemia, causing occlusion, and that stress would not cause such extensive heart damage. The VA examiners' opinions are probative, because collectively they are based on an accurate medical history and provide an explanation that cites to medical principles and contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In that regard, the Board observes that the physician's rationale contains statements that are somewhat at odds with other evidence in the record in terms of the diagnosis of obesity ([he noted] 2007), hypertension (2010), left ventricular hypertrophy (2013), and coronary artery disease (2018). In other words, he did not appear to acknowledge medical evidence that indicated earlier diagnoses of those conditions. For example, the nurse practitioner indicated the Veteran had left ventricular hypertrophy since at least 1997. Numerous records dated from September 1995 to March 2000 from his private physician (D.E., M.D.) note a diagnosis of exogenous obesity that was "central" to his problems with diabetes, hyperlipidemia, and hypercholesterolemia. A March 2009 private record included coronary artery disease among other ailments, despite no definitive basis for it in the record at that time. Nevertheless, the Board finds that any inaccuracies that may be found in that regard does not negate the probative value of that VA opinion. The medical opinions of both examiners are read together, and the underlying, cited medical principles when applied to the general facts of this case would not change those conclusions. Both providers found that the Veteran's cardiac disability was attributable to numerous non-service-related risk factors, which preceded the development of his present cardiac disability. The duration between his presumed exposure to CLCW and the rise of his cardiac symptoms was another pivotal factor of the opinion. The record contains no medical opinion addressing the issue of a nexus to service that is favorable to the Veteran's claim, whether on a direct basis or presumptive basis including his CLCW exposure. The Board acknowledges the Veteran's belief that his cardiac disability is related to an in-service injury, event, or disease including exposure to CLCW. However, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the pathogenesis of cardiac disease and the ability to interpret complicated diagnostic medical testing. Therefore, it is outside his competence, as he is a layperson, and the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in this matter must be denied. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.