Citation Nr: 21012387 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-13 138 DATE: March 4, 2021 ORDER Entitlement to service connection for the Veteran’s cause of death, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDING OF FACT The preponderance of the evidence does not show that the Veteran’s death was caused by a disability incurred in or aggravated during active military service or otherwise etiologically related to any in-service incident, to include presumed exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death, to include as due to exposure to contaminated water at Camp Lejeune, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1954 to February 1974. The Veteran died in June 2013. The appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The case was initially before the Board in March 2016, at which time the Board denied service connection for the Veteran’s cause of death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2017 memorandum decision, the Court set aside the March 2016 Board decision and remanded the matter to the Board for further evidentiary development and readjudication. Subsequent to the Court’s memorandum decision, the Board remanded this case four times – in August 2017, July 2018, March 2020, and August 2020 – for additional development. As the actions specified in the most recent remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the appellant’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the appellant nor her representative have advanced any procedural arguments in relation to VA’s duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection for Cause of Death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered to have been due to service-connected disability where the evidence establishes that a disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). In the instant case, at the time of his death, the Veteran was not service-connected for any of the diseases listed as primary or contributory causes of death. Thus, the Board must consider the laws that otherwise govern establishing service connection for a disability. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has acknowledged that persons residing or working at the United States Marine Corps Base Camp Lejeune, North Carolina from August 1, 1953 to December 31, 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs), including perchloroethylene (PCE), trichloroethylene (TCE), benzene, and vinyl chloride. 78 Fed. Reg. 55,671, 55, 672 (Sept. 11, 2013); see also Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011). Therefore, VA has established a presumption of service connection for certain diseases for veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during the relevant time period. See 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(7), 3.309(f). When exposure to contaminated water at Camp Lejeune is established in accordance with the above criteria, certain diseases associated with such exposure will be service-connected if they manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7). The diseases associated with exposure to contaminants in the water supply at Camp Lejeune are limited to the following eight diseases: 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. § 3.309(f). Notwithstanding the foregoing discussion regarding presumptive service connection, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Proof of direct service connection between exposure and disease entails showing that exposure during service actually caused the malady which developed years later. Actual causation carries a difficult burden of proof. See Combee, 34 F.3d at 1042. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § § 5107(b); 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for the cause of the Veteran’s death, to include as due to exposure to contaminated water at Camp Lejeune The Veteran died in June 2013. The death certificate lists the primary cause of death as stroke, with hypertension and chronic kidney disease as significant conditions contributing to death but not resulting in the underlying cause. The appellant seeks service connection for the Veteran’s cause of death, which she contends was due to or caused by exposure to contaminated water at Camp Lejeune. During his lifetime, the Veteran was service-connected for bilateral hearing loss and tinnitus. The appellant does not allege, and the record does not otherwise suggest, that bilateral hearing loss or tinnitus were principal or contributory causes of the Veteran’s death or otherwise etiologically related to his death. As such, the ultimate question before the Board is whether the diseases that led to the Veteran’s death were incurred in or aggravated by service or otherwise etiologically related to any in-service illness, injury, or event. Based on the analysis below, the Board finds that the preponderance of the evidence is against the claim and service connection for the Veteran’s cause of the death is not warranted. The Veteran’s service treatment records do not show diagnosis or treatment for any signs or symptoms indicative of stroke, hypertension, or kidney disease during service. Although the Veteran complained of pain around the kidney area in December 1966, a urinalysis was negative and he was diagnosed with a muscle strain in his abdomen. No follow-up treatment was required. The February 1974 separation examination noted a normal blood pressure reading of 118/72, and upon clinical evaluation, the Veteran’s head, heart, and vascular and genitourinary systems were all deemed normal. The Board notes that the service treatment records document that the Veteran sustained two separate head injuries as a result of automobile accidents in 1962 and 1965. In June 1962, the Veteran was hospitalized for five days and diagnosed with a basilar skull fracture, laceration on the chin, and a brain concussion. In April 1965, the Veteran was hospitalized for approximately two weeks and diagnosed with a mild concussion, lacerations of the face, and a perforation of the right tympanic membrane. At his February 1974 retirement examination, no residuals of his head injuries were identified. Post-service private and VA treatment records indicate that the Veteran was first diagnosed with hypertension in September 1994. He was diagnosed with chronic kidney disease in approximately July 2011. Treatment records indicate that the Veteran suffered a series of transient ischemic attacks (“mini-strokes”) prior to being hospitalized with a cerebrovascular accident (stroke) in December 2012. Thereafter, he suffered another stroke in March 2013 after which he was placed in a long-term care facility due to being unable to care for himself. The Veteran suffered another stroke in May 2013, which ultimately resulted in his death in June 2013. Initially, the Board finds there is no evidence of signs or symptoms indicative of stroke, kidney disease, or hypertension during the Veteran’s period of active service or for many years after service. With regard to establishing presumptive service connection for hypertension as a chronic disease, the appellant does not allege, and there is no indication from the record, that the Veteran’s hypertension manifested to a compensable degree within one year of separation. In fact, the evidence of record establishes that he was first diagnosed with hypertension approximately 20 years after service. As such, service connection for the Veteran’s cause of death due to hypertension is not warranted on a presumptive basis for chronic disease under 38 C.F.R. § 3.307(a)(3). Next, the Board will address the appellant’s contention that the Veteran’s chronic kidney disease may have been caused by exposure to contaminated water at Camp Lejeune. The Veteran’s exposure to contaminated water has been conceded based on qualifying periods of service at Camp Lejeune. The Board notes that chronic kidney disease is not among the diseases associated with exposure to contaminants in the water supply at Camp Lejeune pursuant to 38 C.F.R. § 3.309(f). Nonetheless, as noted above, service connection may be established with evidence of actual direct causation between such exposure and the Veteran’s development of chronic kidney disease. See Combee, 34 F.3d at 1043. The appellant argues that the Veteran’s exposure to TCE at Camp Lejeune caused renal toxicity, which, left untreated, developed into chronic kidney disease. In support of her claim, the appellant has submitted information from internet sources describing an association between TCE exposure and renal toxicity. Specifically, she submitted a study that found kidney toxicity in Chinese factory workers exposed to low levels of inhaled TCE and concluded that even relatively low occupational exposure to TCE can cause a toxic effect on the kidneys. In an October 2014 medical opinion, a VA doctor of osteopathy stated that the Veteran had identifiable risk factors for developing kidney disease, including obesity, hypertension, age greater than 60 years, and coronary artery disease. Therefore, the examiner opined that “exposure to contaminated water at Camp Lejeune is not likely a risk factor for the development of chronic kidney disease due to past environmental exposures to organic solvents, and there are multiple risk factors which can result in chronic kidney disease, unrelated to his exposure to [Camp Lejeune Contaminated Water] (CLCW).” In January 2016, the Board obtained a Veterans Health Administration (VHA) expert medical opinion from a VA physician, Dr. G., who is listed as a subject matter expert for the Camp Lejeune Contaminated Water Project. Upon review of the Veteran’s claims file, including the evidence submitted by the appellant, Dr. G. opined that the Veteran’s chronic kidney disease was less likely than not caused by service, including his exposure to contaminated drinking water and/or chemicals at Camp Lejeune. In reaching this conclusion, Dr. G. addressed the study submitted by the appellant. He noted several problems with applying the study’s findings to the specific facts of the Veteran’s case: the study did not address permanence of renal disease, progression of renal disease, or progression of renal disease many years after exposure has ceased; the exposures in the study were much higher than in the cited study pertaining to Camp Lejeune; the exposure in the study was airborne rather than waterborne; and recent publications dispute whether the kidney-injury molecule cited by the study’s authors reflect true kidney disease. The doctor therefore concluded that “[t]he article cited as a rebuttal to the previous [VA medical opinion] does not address whether low dose solvents at the level detected in CL [Camp Lejeune] cause renal disease… Given the lack of renal disease found in the [service treatment records], given the lack of information in the world medical literature linking low dose CLCW solvents causally with renal disease in the low dosed measure at CL, and given the Veteran’s non-CLCW risk factors of age, hypertension, obesity (elevated BMI>30), prostate enlargement with obstructive uropathy, and former smoking status (with coronary artery disease), the above medical opinion was provided.” In January 2018, another VA opinion was obtained from a VA physician, Dr. A., who is also a subject matter expert for the Camp Lejeune Contaminated Water Project. Following a comprehensive review of the Veteran’s medical history and a lengthy recitation of pertinent medical literature, Dr. A. concluded that “the weight of both the medical and scientific evidence overwhelmingly supports that the Veteran’s [primary and contributory causes of death] are not due to or caused by exposure to CLCW.” With regard to the etiology of the Veteran’s chronic kidney disease, Dr. A. found no medical evidence of renal toxicity during military service, as evidenced by a normal urinalysis at the Veteran’s separation examination. Rather, she explained, the Veteran’s medical records indicate that his renal function was consistently normal on testing until 2007 when he started having some fluctuation in his renal function, with chronic kidney disease ultimately developing in 2010. Dr. A. noted that this diagnosis was not only decades after being stationed at Camp Lejeune, but also decades after being diagnosed with hypertension, which is a significant risk factor for kidney disease. The Veteran also possessed other risk factors of obesity, hyperlipidemia, male gender, advanced age, metabolic syndrome, and atherosclerosis. Dr. A. then explained, “as indicated by scientific literature discussed above, toxic effects on the kidneys from exposure to any of the chemicals of concern at Camp Lejeune would have led to a degree of renal dysfunction at time of exposure, not having a new onset decades later after exposure had ceased. Studies also support any resultant renal disease at time of exposure would likely improve with cessation of exposure, with lack of evidence that shows any subsequent spontaneous recurrence of renal dysfunction without re-exposure to the toxicants. There is no evidence submitted that indicates that any renal disease began during or immediately following [the Veteran’s] exposure to contaminated water at Camp Lejeune.” In light of the above, the Board finds that the most probative evidence of record weighs against finding that the Veteran’s chronic kidney disease was caused by exposure to contaminated water at Camp Lejeune. In this regard, the Board finds the January 2016 and January 2018 opinions to be highly probative. Both examiners concluded, upon comprehensive review of the Veteran’s health history and pertinent medical literature, that the Veteran’s chronic kidney disease did not manifest until many years after exposure to contaminated water at Camp Lejeune and that he had several other, more likely risk factors for developing kidney disease, such as hypertension, coronary artery disease, obesity, and advanced age. They both also concluded that current medical literature and accepted medical principles do not support a link between the low doses of contaminants found in Camp Lejeune’s water and the onset of renal disease many decades later. The Board finds that both VA examiners, who are noted to be subject matter experts on the Camp Lejeune Contaminated Water Project, applied their own medical expertise and knowledge, supported by application of current medical literature, to the specific facts of the Veteran’s case. In doing so, they adequately addressed the appellant’s assertions and provided clear, well-reasoned medical rationales to support their respective conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board further notes that the appellant has not presented or identified any contrary medical opinion that supports her theory of entitlement to service connection for the cause of the Veteran’s death. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). Therefore, in the absence of any other probative medical opinion or competent evidence to the contrary, the Board accepts the conclusions of the January 2016 and January 2018 VA examiners that the Veteran’s chronic kidney disease was less likely than not caused by exposure to contaminated water at Camp Lejeune. Next, the Board has also considered whether the Veteran’s stroke may be causally related to head injuries he sustained in automobile accidents during service, as such has been raised by the record. The Board obtained a VA medical opinion in October 2019 to address this theory of entitlement. Upon review of the Veteran’s claims file, a VA examiner opined that the Veteran’s stroke was less likely than not incurred in or caused by his active duty service. The examiner explained that the Veteran had a history of multiple embolic strokes caused by blood clots that interrupted blood flow to the brain, which, she opined, were not caused by trauma sustained to the head during active service. Finding that the October 2019 medical opinion did not provide a sufficient medical rationale, the Board remanded the claim to obtain a new opinion. In June 2020, the same VA examiner once again opined that the Veteran’s stroke was less likely than ot incurred in or caused by his active duty service. The examiner explained that the Veteran’s cause of death, embolic stroke, is not the type of stroke caused by head trauma or injury, but rather by particles of debris traveling from other parts of the body that will lodge in a vessel and prevent blood flow to the brain. Finding the June 2020 opinion to also be insufficient, the Board remanded the claim once again to obtain an adequate medical opinion. In October 2020, a VA examiner who specializes in neurology provided a medical opinion on the cause of the Veteran’s death. Upon review of the Veteran’s medical history, the examiner concluded that the Veteran’s cause of death is less likely than not incurred in or caused by the in-service head injuries. In making this determination, the VA examiner acknowledged that the Veteran suffered two serious head injuries from motor vehicle accidents during service that, by today’s standards, would qualify as traumatic brain injuries (TBIs). However, he noted that the Veteran did not appear to have any vascular injuries from the accidents, as evidenced by a lack of follow-up treatment afterwards and a normal separation examination. The Board specifically requested the examiner to review and comment on two medical studies which found a statistically significant relationship between TBIs and ischemic stroke. However, upon review of the medical literature, the examiner explained that the two studies only examined “early” stroke (or those occurring within six years of the TBI) and that the average age of the study participants at the time of the TBI was 46 years of age. In contrast, the Veteran was in his early 20s at the time of his TBIs and his strokes occurred approximately 50 years after his TBIs. Moreover, the study only included “low-risk” participants; in contrast, the examiner noted that the Veteran would have been considered a high-risk patient for a stroke given his many other risk factors. Therefore, the examiner found the Veteran’s case to be distinguishable from the studies’ limited findings. The examiner also added that “association is not causation.” The VA examiner therefore opined that it is much more likely that the Veteran’s strokes were caused by the cumulative effects of his atherosclerotic cardiovascular disease and vascular changes in the brain worsened by his hypertension, chronic kidney disease, obesity, and the aging process, as these are all well-known risk factors for giving rise to the emboli that cause transient ischemic attacks and cerebrovascular accidents (strokes). He concluded that it is much less likely than not that the Veteran’s history of TBIs had anything to do with his death by stroke. The Board finds the October 2020 VA opinion to be highly probative as to the question of whether the Veteran’s stroke was related to the two head injuries he sustained during service. In this regard, the opinion is based on a detailed review of the Veteran’s medical history and the application of current medical principles and the examiners’ own expertise as a neurologist to the facts of the Veteran’s case. The examiner provided a clear, well-reasoned medical rationale to support his conclusion that is consistent with the evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295; see also Prejean, 13 Vet. App. at 448-49; Guerrieri, 4 Vet. App. at 470-71. In summary, the Board finds that the claims file does not contain competent and credible evidence that the Veteran’s primary cause of death, stroke, or contributory causes of death, chronic kidney disease and hypertension, were incurred in or caused by the Veteran’s military service, to include as due to exposure to contaminated water at Camp Lejeune or two in-service head injuries. Significantly, the most probative medical opinion evidence, as outlined above, weighs against the appellant’s claim for service connection for the Veteran’s cause of death. Notably, the appellant has not presented or identified any contrary medical opinion that supports her claim for service connection for the Veteran’s cause of death, on a direct or presumptive basis. The only evidence of record that indicates a nexus between the Veteran’s death and service is the appellant’s own assertions. Although the appellant is competent to relay lay-observable symptoms, she is not competent to opine that the Veteran’s death was etiologically related to service, as this is a complex medical question beyond the knowledge of a layperson and she lacks the requisite medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must rely on the objective medical evidence of record, rendered by qualified medical professionals, and the most probative medical evidence weighs against finding in favor of service connection for the cause of the Veteran’s death. Accordingly, the Board finds that the preponderance of the evidence is against the appellant’s claim for service connection for the Veteran’s cause of death due to stroke, chronic kidney disease, and hypertension, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board is sympathetic to the appellant’s claim, it has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board emphasizes that the denial of this claim does not in any way diminish the Veteran’s many years of honorable service to our country. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.