Citation Nr: 21005316 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-35 481 DATE: February 1, 2021 ORDER Entitlement to service connection for chronic kidney disease, to include as secondary to service-connected disability is denied. FINDINGS OF FACTS 1. The Veteran was stationed at the United States Marine Corps Base at Camp LeJeune, and he has presumed exposure to contaminated water. 2. The Veteran’s chronic kidney disease first manifested decades after his separation from service, and the preponderance of the evidence is against a finding that it was otherwise result of his period of service, to include caused or aggravated by his service-connected diabetes mellitus and coronary artery disease disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic kidney disease, to include as secondary to service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Marine Corps from January 1966 to January 1968. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including cardiovascular-renal diseases, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 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). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Entitlement to service connection for chronic kidney disease, to include as secondary to service-connected disability The Veteran seeks entitlement to service connection for chronic kidney disease as result of his period of service. He contends that his chronic kidney disease is a result of his exposure to contaminated water at Camp LeJeune. In the alternative, he has asserted that his chronic kidney disease is secondary to his service-connected diabetes mellitus and coronary artery disease disability. See March 2017 VA 21-526EZ, Fully Developed Claim (Compensation), March 2018 notice of disagreement, and June 2018 substantive appeal. The competent medical evidence of record shows that the Veteran has a current diagnosis of chronic kidney disease, stage III. See Private treatment records and April 2017 VA kidney examination report. At the outset, the Board notes that the Veteran’s service medical records do not reveal any complaints, findings, treatment, or diagnoses relating to chronic kidney disease, and he has not asserted that his chronic kidney disease first manifested during service or within a year of his separation from service. Rather, the Veteran has consistently asserted that he was first diagnosed with kidney disease in 2012 or 2013, and the available private medical records reflect assessment of chronic kidney disease in February 2014. Therefore, the competent evidence of record does not demonstrate that the Veteran’s chronic kidney disease was incurred during his period of service nor has he experienced continuity of a chronic kidney disease since his period of service. See 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker, 708 F.3d at 1331. The Board also notes the record shows that the Veteran had active service in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. However, chronic kidney disease is not among the list of diseases that are presumed related to exposure to herbicide agents under 38 C.F.R. § 3.309 (e). As such, presumptive service connection based on herbicide agent exposure is not warranted. Moreover, the Veteran has not asserted, and the record does not demonstrate that, that his chronic kidney disease is otherwise related to his presumed exposure to herbicide agents. Without basic evidence or assertions explaining associating his chronic kidney disease to his presumed exposure to herbicide agents, VA has no duty to provide a medical examination or opinion in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). Turning to the Veteran’s contentions, the Board will first address whether the Veteran’s chronic kidney disease is a result of his exposure to chemicals while stationed at Camp Lejeune. The Veteran’s service personnel records show that he was stationed at Camp LeJeune from June 1966 to September 1966 and from November 1967 to January 1968. The Board must consider both presumptive service connection as well as direct causal service connection with respect to the Veteran’s exposure to toxic chemicals in the water at Camp Lejeune. In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she suffered from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). However, kidney disease is not listed under 38 C.F.R. § 3.309 (f) as a disease subject to presumptive service connection, and as such, service connection on this presumptive basis is denied. Notwithstanding the provisions of 38 C.F.R. § 3.309 (f), relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the presumed exposure at issue actually causes a disability. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (d). The Board must consider whether the evidence of record supports that there is actual nexus between the Veteran’s chronic kidney disease and his exposure to contaminated water at Camp LeJeune. However, the Board finds that it does not. In this regard, the record contains a June 2019 VA medical opinion report, in which the VA examiner concluded that it was less likely than not that the Veteran’s chronic kidney disease was attributable to his exposure to contaminated water at Camp Lejeune. In support of this medical opinion, the VA examiner noted a review of the Veteran’s medical records and provided an extensive list of relevant medical literature reviewed in conjunction with the medical opinion. The June 2019 VA examiner noted that chronic kidney disease is common and almost half of people greater than age 70, such as the Veteran, have chronic kidney disease. The most common causes are diabetes and hypertension, which account for almost three-quarters of all cases, and the Veteran has both conditions. It was also noted the Veteran has history of kidney stones and gout, which both are considered increased risk factors for the development of chronic kidney disease. Further, the June 2019 VA examiner noted that studies of the contaminated water supplies at Camp Lejeune revealed that trichloroethylene (TCE) had a very small nephrotoxic potential in humans and that the other solvents at Camp Lejeune were not associated with any excess risk of kidney disease. The June 2019 VA examiner concluded that given that the Veteran is in an age group in which almost half of individuals have chronic kidney disease, he has four other risk factors for chronic kidney disease, he had low levels of exposure to solvents based on only 150 days at Camp Lejeune, and the small nephrotoxic of the solvents in humans, it is less likely as not that his kidney disease was caused by or related to his exposure to contaminated water at Camp LeJeune. The Veteran’s representative’s asserts that the June 2019 VA medical opinion is inadequate, because the VA examiner did not discuss the health issues associated with kidney conditions and his exposure benzene, vinyl chloride and other contaminants found in contaminated water at Camp LeJeune. See January 2021 informal hearing presentation. However, the Board finds that the opinion is adequate. In this regard, the VA examiner provide an extensive list of medical literature concerning the health issues resulting from exposure to toxins from the contaminated water at Camp LeJeune, which was reviewed and considered in support of the medical conclusion rendered. While the VA examiner did not specifically identify benzene, vinyl chloride and other contaminants, the VA examiner had stated that the other contaminants at Camp Lejeune were not associated with any excess risk of kidney disease. Moreover, the record shows that the June 2019 VA examiner is a subject matter expert on the Camp Lejeune Contaminated Water Project, and the Board can presume such medical expertise includes knowledge and consideration of other contaminants and the associated health issues. Notably, the representative has not questioned the VA examiner’s medical expertise in this matter. Finally, the Board highlights the fact that the Veteran’s representative has not identified any study or medical literature in support that other contaminants are associated with development of kidney disease. Based on the foregoing, the Board finds the June 2019 VA examiner’s medical opinion is adequate, and there is no obligation for the Board to engage in further development in support of this particular argument. The Board finds that the June 2019 VA medical opinion is highly probative in this matter as it is based on a review of the medical records and relevant medical literature and supported by adequate rational statement. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no competent evidence of a medical nexus between the Veteran’s chronic kidney disease and his exposure to contaminated water at Camp LeJeune. Therefore, the preponderance of the evidence is against a finding that the Veteran’s chronic kidney disease is a result of his exposure to contaminated water at Camp LeJeune. Finally, the Board turns to the Veteran’s assertion that his chronic kidney disease is secondary to his service-connected diabetes mellitus and/or coronary artery disease disabilities. However, the Board finds that weight of the evidence of record is against finding that the current kidney disorder was either caused or worsened beyond its normal progression by the service-connected diabetes mellitus and/or coronary artery disease. The record contains VA medical opinions that weigh against the finding that the Veteran’s chronic kidney disease is secondary to his service-connected diabetes mellitus and/or coronary artery disease. In January 2020 VA medical opinion report, the VA examiner concluded that it is less likely than not that that Veteran’s chronic kidney disease proximately caused by or result of his service-connected diabetes mellitus and coronary artery disabilities. In support of this medical opinion, the VA examiner references medical literature that explained that the diagnosis of chronic kidney disease is determined by the presence of kidney damage and/or the level of kidney function. In clinical terms, chronic kidney disease is defined as persistent and usually progressive reduction in glomerular filtration rate (GF) and/or an albuminuria based on the spot urine collection. The Veteran’s laboratory results reflect a reduction of the glomerular filtration rate, but there is no evidence of albuminuria or proteinuria. Next, the January 2020 VA examiner noted that the risk factors for development of chronic kidney disease include age (older than 60 years), family history, hypertension, cardiovascular disease, type II diabetes, history of autoimmune disease, recurrent UTIs, kidney stones, systemic infections, neoplasm, or acute kidney injury. The VA examiner observed that the Veteran has multiple risk factors for the development of chronic kidney disease, including kidney stones, hypertension, and diabetes mellitus. The VA examiner noted that medication can also affect kidney function. The Veteran has taken several medications which can cause or aggravate renal function such as tramadol, HCTZ, and aspirin. The January 2020 VA examiner acknowledged that the two leading causes of chronic kidney disease are hypertension and diabetes, and both can cause chronic kidney disease due to damage to the blood vessels and filters in the kidney. However, the VA examiner explained that kidney damage due to diabetes mellitus would cause proteinuria, and the available laboratory evidence does not demonstrate proteinuria or microalbuminuria. Moreover, the Veteran’s treating nephrologist had diagnosed diabetes mellitus with no complications. The VA examiner concluded that since there was no evidence of proteinuria or microalbuminuria, Veteran’s diabetes mellitus disability did not cause his chronic kidney disease. In addition, the January 2020 VA examiner noted that the Veteran’s medical history reflected that his chronic kidney disease had an onset in 2012/13 and his coronary artery disease had an onset in 2016. Since his chronic kidney disease pre-dated his coronary artery disease, the VA examiner concluded that it was less likely than not that the Veteran’s chronic kidney disease was caused by his coronary artery disease disability. In a May 2020 VA medical opinion report, the VA examiner also concluded that the Veteran’s chronic kidney disease is less likely than not a result of his service-connected coronary artery disease disability. In support of this medical opinion, the VA examiner found that there is no medical nexus establishing a causality between the Veteran’s chronic kidney disease and his coronary artery disease. The Veteran has a history of chronic kidney stones. Medical records of evidence did not show evidence of proteinuria or microalbuminuria. The VA examiner concluded that the medical literature did support the development of chronic kidney disease as related to the Veteran’s coronary artery disease disability. The May 2020 VA examiner further concluded that the Veteran’s chronic kidney disease is less likely than not aggravated beyond its natural progression by service connected diabetes mellitus and/or coronary artery disease disabilities. In support of this medical opinion the VA examiner observed that the Veteran had multiple risk factors for the development of chronic kidney disease to include kidney stones and hypertension. The Veteran was diagnosed with hypertension in 2012. The medical records show that the Veteran’s diabetes mellitus was controlled with medication since April 2013 and that the Veteran’s treating nephrologist found that the Veteran did not have complications due to his diagnosis of diabetes mellitus. Moreover, the VA examiner noted that renal disease secondary to diabetes would cause proteinuria. However, in the Veteran’s case, his medical records do not evidence proteinuria or microalbuminuria. The May 2020 VA examiner acknowledged that current medical literature reflected the effect of medication on renal function, and that the Veteran has taken several medications which can cause, aggravate renal function, to include tramadol, HCTZ, and aspirin. It is noted that the Veteran takes aspirin in conjunction with coronary artery disease disability. However, in a June 2020 addendum medical statement, the May 2020 VA examiner clarified that there were no objective medical evidence to substantiate that aspirin, or any other mediation, has caused or aggravated the Veteran’s chronic kidney disease, because the laboratory data did not show evidence of proteinuria or microalbuminuria. The Board has considered that the June 2019 VA medical opinion identified the Veteran’s diabetes mellitus as one of the possible risk factors, apart from his age and history of hypertension, kidney stones, and gout, for the development of chronic kidney disease. However, the January 2020 and May 2020 VA examiners found that based on a review of the medical evidence, and in particular, in consideration of laboratory results, that his diabetes mellitus did not cause or aggravate his chronic kidney disease. In addition, private treatment records reflect an assessment of chronic kidney disease due to non-service connected hypertension. See January 2020 and May 2019 private nephrology and hypertension treatment records. The Board finds the 2020 VA examiners’ opinions, along with other medical evidence of record, are more probative and weigh heavily against the finding that the Veteran’s chronic kidney disease is proximately caused or aggravated by his service-connected diabetes mellitus. While the Veteran believes his currently diagnosed chronic kidney disease is related to service or in the alternative secondary to his service-connected diabetes mellitus and/or coronary artery diseases disabilities, he is not competent to provide an etiology in this case. Though the Veteran may be competent and credible to describe the particular symptoms from which he suffers, determining the etiology of chronic kidney disease requires specialized medical education/knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board finds that the competent evidence does not demonstrate that the Veteran’s chronic kidney disease was incurred in service or the continuity of a chronic disease since service. Additionally, the preponderance of evidence weighs against the finding that the Veteran’s chronic kidney disease is otherwise attributable to service, to include as secondary to the service-connected diabetes mellitus and/or coronary artery disease. Thus, the Veteran’s claim for service connection for chronic kidney disease must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.