Citation Nr: 21012667 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-12 229 DATE: March 4, 2021 ORDER Entitlement to service connection for cirrhosis of the liver, to include as secondary to Camp Lejeune contaminated water (CLCW), is denied. Entitlement to service connection for renal disease to include as secondary to CLCW, is denied. FINDINGS OF FACT 1. The Veteran served at Camp Lejeune, North Carolina, from March 18, 1966 to April 7, 1966, and from June 1966 to January 1967. 2. The preponderance of the evidence is against finding that the Veteran’s cirrhosis of the liver began during active service, was manifest within one year after discharge from active service or is otherwise related to an in-service injury or disease, to include exposure to CLCW. 3. The preponderance of the evidence is against finding that the Veteran’s renal disease began during active service or is otherwise related to an in-service injury or disease, to include exposure to CLCW. CONCLUSIONS OF LAW 1. The criteria for service connection for cirrhosis of the liver are not met. 38 U.S.C. §§ 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7), 3.309(a), (f). 2. The criteria for service connection for renal disease are not met. 38 U.S.C. §§ 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7), 3.309(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office. In March 2016, the Veteran appeared for a video conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The hearing was held before a now-retired judge. In June 2020, the Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days, it would be assumed he did not want another hearing. In June 2020, the Veteran responded that he did not wish to appear at another hearing and asked the Board to consider the case on the evidence of record. See June 29, 2020 Hearing Request Correspondence. Thus, the Board will proceed. In August 2018, the Board remanded the matter for an addendum opinion to address the Veteran’s medical records and lay statements regarding the onset and duration of the symptoms of his liver and renal disease. See August 2018 Board Remand. In March 2020, an addendum opinion was completed and associated with the claim file in substantial compliance with remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 disability and in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to establish a presumption of exposure to contaminated water and presumptive service connection for eight identified 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) when a service member, former reservist or member of the National Guard served at U.S. Marine Corps Base Camp Lejeune for no less than 30 days (either consecutive or non-consecutive) between August 1953 and December 1987. 38 C.F.R. §§ 3.307(a)(7) and 3.309(f). Cirrhosis of the liver 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). 1. Entitlement to service connection for cirrhosis of the liver 2. Entitlement to service connection for renal disease The Veteran contends that his liver cirrhosis and renal disease are due to CLCW. The Veteran’s service records show that he was stationed at Camp Lejeune, North Carolina, from March 18, 1966 to April 7, 1966, and from June 8, 1966 to January 1967. The VA concedes he was exposed to CLCW during service. See September 2013 Rating Decision, pg.2. However, the Veteran’s currently diagnosed non-alcoholic fatty cirrhosis of the liver (cirrhosis) and chronic kidney disease, are not among the listed diseases in 38 C.F.R. § 3.309(f). Thus, presumptive service connection for cirrhosis of the liver and chronic kidney disease disabilities due to exposure to CLCW is not warranted. Notwithstanding that finding, entitlement to service connection can still be pursued on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir.1994). As to the first element of Shedden for service connection, he has diagnoses of non-alcoholic fatty liver disease (NAFLD) and cirrhosis, as well as and stage III chronic kidney disease. See March 2020 VA Examination. As to the second element of Shedden, the evidence shows that an in-service injury, event, or disease occurred which was exposure to CLCW. Thus, the Board finds that the first and second elements of service connection are met. The question for the Board is whether there is a causal relationship between his military service and his currently diagnosed liver cirrhosis and renal disease, to include exposure to CLCW. September 2013 Medical Opinion Weighing against the Veteran’s claim is a September 2013 negative nexus opinion. The 2013 examiner opined that it is less likely than not that the Veteran’s cirrhosis and renal disease were due to exposure to CLCW because the liver disease did not manifest itself until 2008, or 40 years after separation from service and his renal disease was diagnosed until 2014, or 46 years after separation from service. See September 2013 VA Examination. The examiner added that the highest risk factors for non-alcoholic fatty liver disease are obesity, hypertension, metabolic syndrome and advancing age. See id. The 2013 examiner noted that the Veteran has the most common proven risk factors of liver disease: (1) marked obesity—5’7” in height and weight of 248 pounds; (2) a 34-year history of hypertension; (3) metabolic syndrome; and (4) advancing age are the most common. See id. The examiner also noted that the Veteran’s Service Treatment Records (STR) are silent for complaints, treatment, diagnosis of liver disease, except that the Veteran’s sister died of hepatitis or “jaundice.” See id. The examiner opined that evidence of liver toxicity due to CLCW is limited or suggestive whereas the most common risk factor for non-alcoholic fatty liver disease is obesity, often in association with hypertension. See id. Regarding renal disease, the 2013 examiner opined that it is more likely due to the Veteran’s hypertension and liver disease, rather than to CLCW because a late development of chronic renal insufficiency, 46 years after exposure, is unexpected. Whereas, the examiner offered an alternative etiology for the Veteran’s renal disease and opined it is more likely due to the long-standing hypertension with the added insult of liver disease and liver transplant. The examiner discussed the Veteran’s 34-year history of hypertension and that his renal disease started after a diagnosis of liver cirrhosis. The examiner noted that the Veteran’s creatinine level was normal in January 2008, went as high as 4.6 at the time of his liver transplant and went down to 1.8 in March 2012. See id. In March 2016, the Veteran testified at a Board hearing regarding the onset and duration of symptoms related to his liver and renal disease. See March 2016 Board Hearing Transcript, pg. 4. More specifically, the Veteran testified that he has had liver and kidney disease symptoms such as blood in his urine, and liver problems since service. See id. at 5. As noted in the August 2018 Board Remand, the 2013 VA examiner did not address these lay statements; the matter was remanded the matter for an addendum opinion. To the extent that the 2013 VA examiner did not address these Veteran’s lay statements, the Board assigns the 2013 examiner’s opinion less probative value. March 2020 Medical Opinion In March 2020, the Veteran was afforded an addendum opinion regarding the nature and etiology of the Veteran’s liver and renal disease. The examiner reviewed medical records from 2008 to 2020, STRs, private treatment records, lay testimony and statements and claim file. See March 2020 VA Examination. The examiner noted that the Veteran’s STRs are silent for any complaints, or treatment or diagnosis of any liver or kidney problems, except that his sister died at the age of 18 from hepatitis. See October 26, 1965 STR, Reinduction Examination. At that time the Veteran denied frequent or painful urination, denied blood in his urine and denied hypertension. See id. The March 2020 examiner noted that post-service treatment records show that the Veteran was not diagnosed with cirrhosis of the liver until 40 years after separation from service. The examiner noted that the Veteran’s medical records indicate that he stated that his health was in stable condition until the summer of 2007 at which time he complained of shortness of breath, swelling in both lower legs, ascites. See March 20, 2008, Strong Memorial Hospital Admission Note. In January 2008, the examiner noted that the Veteran complained of shortness of breath, lower extremity swelling and was treated with diuretics. See id; see also January 2008, Strong Memorial Hospital ER note. The examiner noted that in March 2008, the Veteran’s weight was 244 pounds with a BMI (Body Mass Index) of 38.2, noting a 79-pound weight gain since service and that he began to develop Type II Diabetes Mellitus in 2009. See March 2020 VA Examiner Opinion, pg. 2. In March 2008, after his liver function tests were noted to be abnormal, a biopsy was performed which showed cirrhosis of the liver and NAFLD. See University of Rochester Medical Center Liver Transplant Evaluation, by Dr. A.J, dated June 25, 2008. The Veteran had a liver transplant in November 2008. The examiner addressed the Veteran’s contention that his liver and kidney disease is due to exposure to CLCW. See March 2020, Disability Benefits Questionnaire, pg. 2. However, STRs were silent for any complaints, treatment or diagnosis of liver problems. The examiner noted that his separation examination was normal, he weighed 165 pounds, his blood pressure was 122/78 and his BMI was 25.8. See March 2020 VA Examiner Opinion, pg. 3; see also January 1968 STR. The examiner opined that while the Veteran may have been exposed to CLCW, it was less likely than not related to CLCW because his liver disease developed 40 years after service, these was no nexus linking his liver disease to his STRs, medical literature reviewed did not support that NAFLD was correlated with CLCW, and NAFLD is strongly correlated with obesity, hypertension, diabetes, and dyslipidemia. The examiner stated that obesity, hypertension, dyslipidemia and insulin resistance or overt diabetes are known to cause NAFLD. In view of the time frame he was diagnosed, along with the aforementioned risk factors, the examiner concluded that the Veteran’s liver NAFLD cirrhosis is less likely than not due to exposure to CLCW, but more likely than not due to the aforementioned risk factors. In his rationale, the examiner provided a lengthy discussion of medical and scientific literature on NAFLD, and whether solvents have been shown to cause NAFLD. The examiner concluded that there were no studies linking CLCW, or solvents used there, to NAFLD. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Regarding renal disease, the examiner reviewed the Veteran’s STRs, private medical records, lay testimony, lab reports and diagnostic findings and opined that his renal disease was less likely than not related to an in-service injury, event or disease, including CLCW. In her explanation, the March 2020 examiner provided a lengthy discussion of medical and scientific literature on chronic kidney disease, what it is, how it is diagnosed and its most common causes. The examiner also discussed literature regarding effects organic solvents have on kidneys and the development of kidney disease, including studies conducted with regards to potential health effects of exposure to CLCW. The examiner noted that whether solvents effect chronic kidney disease was in equipoise. After reviewing the literature, the examiner set forth the relevant facts of the Veteran’s case, including that he was exposed to CLCW; he developed NAFLD and liver cirrhosis in 2008; he had hypertension for 34 years; he had cardiovascular disease; he had hyperlipidemia evidenced by a carotid endarterectomy; he had obesity; his renal function was normal until his liver transplant in 2008; he was diagnosed with endstage renal disease (ESRD) in 2014. The examiner stated that each of these factors are strong risk factors for the development of ESRD. The examiner indicated that literature did not support his development of ESRD 40 years after exposure CLCW, as opposed to his multiple comorbid medical conditions known to cause chronic kidney disease, which includes cirrhosis, diabetes mellitus, liver failure, obesity, hypertension, hyperlipidemia, obesity and advanced age. See March 2020 VA Examiner opinion, pg.4. The examiner opined that his renal disease is less likely than not due to CLCW because of the lack of complaints, treatment, diagnosis or lab tests indicative of renal disease while in service, after service, and until over 40 years had passed, and after the Veteran developed liver failure. Although a lack of treatment cannot be the sole basis a negative opinion, it can be considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, the March 2020 opinion is factually accurate, fully articulated, sound reasoning for a conclusion that contributes probative value to the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.” Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board also acknowledges a journal article submitted by the Veteran which discussed health problems seen in people who worked with TCE, PCE, benzene and VC. However, the study concluded not everyone who is exposed will develop these health problems may not be seen in people who did not work with the solvents but whose exposure was limited to drinking contaminated water. The March 2020 examiner acknowledged that renal disease could be associated with contaminants in CLCW, but noted that without any signs, symptoms, complaints, treatment or diagnosis until 40 years after service, it was less likely than not that his ESRF was due to CLCW rather than liver failure, liver transplant and his other co-morbid conditions. The Board acknowledges the Veteran’s belief that his liver and renal diseases are due to CLCW. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and the interpretation of complicated medical and scientific studies. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he had 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). Consequently, the Board gives more probative weight to the March 2020 VA examiner’s opinion. The Board also acknowledges the Veteran’s lay testimony that his liver problems and renal disease began shortly after service. However, the Veteran did not point to any specific statement by a physician, a specific complaint that was also reflected in his STRs, or private treatment records. The Veteran stated that he thought he had kidney problems such as blood in his urine after he got out of the service. See March 2016 Hearing Transcript, pg. 5. However, the Veteran also testified that physicians told him that it was not unusual to have kidney problems after a liver transplant. The Veteran also testified that his kidney problems were due to anti-rejection medications received after his liver transplant. See id. at pg. 4. The Board finds that his testimony conflicts with other lay statements that his ESRF is due to CLCW. Upon review, the record does not demonstrate corroborating evidence of his liver or kidney problems during or within a year of separation from service. The Board finds that while the Veteran is competent to discuss symptoms capable of lay observation, the Veteran’s lay statements are contradictory and not supported by STR or medical records, and thus, lack probative weight. The probative evidence of record does not support a continuity of symptomology since service. 38 C.F.R. 3.309. Moreover, end-stage renal failure is not a listed as a chronic disease under 38 C.F.R. 3.309(a). There are no probative opinions of record linking the Veteran’s NAFLD cirrhosis and renal disease to service, to include CLCW. Thus, the preponderance of the evidence weighs against finding that the Veteran’s liver and renal disease began during service or are otherwise related to that in-service injury, event or disease, to include CLCW. 38 U.S.C. §§ 1131, 5107(b); see Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The benefit of the doubt it not for application; the claim for entitlement to service connection for liver disease and for renal disease it not warranted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.