Citation Nr: 21025886 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-18 664 DATE: April 29, 2021 REMANDED Service connection for a kidney disorder, to include chronic kidney disease is remanded. Service connection for diabetes mellitus is remanded. Service connection for hypertension is remanded. Service connection for a heart disorder, to include coronary artery is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from April 1970 to February 1972 and in the United States Marine Corps from October 1972 to October 1974, to include service in Camp Lejeune from January 1973 to October 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2013, the Veteran presented sworn testimony at a hearing before a Decision Review Officer (DRO). In December 2018, the Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge. These matters were remanded by the Board in January 2019 for additional development. 1. Entitlement to service connection for a kidney disorder, to include chronic kidney disease is remanded. The Veteran seeks service connection for a kidney disorder, which has been diagnosed as chronic kidney failure. See, e.g., VA Examination, January 2016. He asserts that the disorder (i) had its onset in service, (ii) is otherwise related to his in-service exposure to contaminated water while stationed at Camp Lejeune from January 1973 to October 1974, (iii) or is related to reported exposure to an herbicide agent while cleaning a vehicle from the Republic of Vietnam. See, e.g., DRO Hearing, June 2013. While on active duty service in Camp Lejeune, the Veteran was exposed to contaminated water. See Hearing Testimony, December 2018. Personnel records confirm that the Veteran was stationed at Camp Lejeune between January 1973 to October 1974. Service treatment records do not specifically state that the Veteran suffered a kidney disorder in service. However, service treatment records show that the Veteran complained of right-sided back pain in April 18, 1974, which was diagnosed as a urinary tract infection; left-sided back pain in June 25, 1974, which was diagnosed as strain; and difficulty urinating in July 1974, which was diagnosed as hemorrhagic cystitis. Urine analysis was conducted on July 31, 1974. In December 2018, the Veteran testified that he received kidney treatment immediately following separation from service, but records of such are unavailable as the private treatment provider has since closed his practice and is deceased. Private treatment records show that the Veteran began prednisone for service-connected IBS on October 9, 1990 and proteinuria was found in his urine on February 15, 1999. On March 30, 2001, the Veteran was referred to a nephrologist for proteinuria, and the nephrologist stated that it “may be related to his sleep apnea.” An August 27, 2010 nephrology note indicates that the Veteran may have had proteinuria for up to 30 years. In January 2016, a VA clinician opined that the Veteran’s chronic kidney disease had its onset between 2001 (the last date of normal creatinine) and 2010 (the first date of abnormal creatinine). The clinician noted that urinalysis in 1974 and 2001 revealed no protein. The clinician opined that the Veteran’s kidney disease is not related to exposure to contaminated water while stationed in Camp Lejeune. The clinician explained that even assuming kidney disease had its onset in 2001, there was at least a 27-year gap between the end of the Veteran’s exposure to contaminated water and the beginning of his kidney disease. The clinician further stated that the fact that the Veteran’s Camp Lejeune solvent exposure was at a low level for a short time period and ceased at least 36 years before the first documentation of significant declining renal function (27 years to the last normal test), which makes it extremely unlikely that his kidney disease is in any way related to exposure to contaminated water at Camp Lejeune. The examiner further explained that the Veteran has had multiple very significant risk factors for kidney disease— to include diabetes, hypertension, smoking, obesity, hyperlipidemia, and coronary artery disease—many of which have not been adequately controlled. The clinician concluded that these risk factors likely caused the Veteran’s kidney disease. In May 2019, a clinical nephrologist reviewed the Veteran’s medical history. The examiner noted the common causes of proteinuria that are present in the Veteran’s personal history but stated that there are several inconsistencies that fail to appropriately capture the etiology of his chronic kidney disease. The examiner also noted reports of nephrotoxic effects of exposure to solvents in the Camp Lejeune area and how exposure to subclinical nephrotoxicity and accumulation of other risk factors for chronic kidney disease over time (obesity, tobacco exposure, and diabetes) could result in clinically significant disease later in life. The examiner stated that the Veteran’s proteinuric kidney disease does not have a clear etiology. However, the examiner opined that it is at least as likely as not that toxic chemical exposure could have contributed to his current kidney disease diagnosis. The examiner reasoned that the Veteran’s initial kidney disease, diagnosed before his comorbid conditions of obesity, diabetes, and tobacco abuse, did not progress until developed additional nephrotoxic insults. In June 2020, a VA examiner opined that the Veteran’s kidney disorder is less likely as not caused by or the result of his exposure to contaminated water at Camp Lejeune. The examiner reasoned that the Veteran has several underlying risk factors and renal disease is not clearly associated with the low levels and short duration of the Veteran’s exposure to contaminated water at Camp Lejeune. The examiner pointed to several cohort studies that evaluated TCE exposure and kidney diseases, including “Mortality study of civilian employees exposed to contaminated drinking water at USMC base Camp Lejeune: A retrospective cohort study” (2014) and “Evaluation of mortality among Marines and Navy personnel exposed to contaminated drinking water at USMC base Camp Lejeune: A retrospective cohort study” (2014). Based on these studies, the examiner concluded that the Veteran was exposed to much lower levels of TCE and PCE than the civilian workers at Camp Lejeune, and, as a group, the Marines stationed at Camp Lejeune did not show a higher risk for chronic kidney disease than the marines stationed at Camp Pendleton who were not exposed to the contaminated water. As to a direct causation, the examiner noted that it is unclear from the submitted records when the Veteran’s renal disease began as he had signs of proteinuria in 2001 and, by other reports in the medical records, may have had proteinuria as early as 1974. The examiner noted that the Veteran’s nephrologist attributed both his mildly elevated creatinine and chronic proteinuria to his large frame and muscle mass as a younger man. The Veteran had protein in his urine at Camp Lejeune associated with a urinary tract infection, and had visits with lethargy, flank pain, and dizziness but was not examined for the presence of renal stones. The Veteran presented with several sore throats and a rash and was not considered to potentially have a post-streptococcus glomerulonephritis. The examiner noted that either of these two early common conditions could have explained his chronic proteinuria from time of discharge until developing diabetic nephropathy in 2015. Further, the examiner acknowledged the May 2019 clinical nephrologist opinion in support of a relationship between the Veteran’s kidney disorder and contaminated water. The examiner stated that the clinical nephrologist was probably not aware of the 2014 study where a group of Camp Lejeune Marines and Navy personnel with an average exposure of 18 months were compared to a comparable group of Camp Pendleton military personnel. In that study, the authors found a lower rate of death due to renal disease in the exposed Camp Lejeune cohort than in a control Camp Pendleton cohort without statistical significance. Additionally, the evidence for TCE exposure leading to kidney disease shows that duration and level of exposure correlates to the relative risk. The exposure of civilian workers to TCE was considerably higher (at or above the OSHA PEL) and lasted significantly longer (average of 5 years) than the exposure of non-workers (average 2 years). Only in these workers at Camp Lejeune was there a slightly elevated risk. Finally, although the clinical nephrologist considered the Veteran’s renal disease to have started before his diagnosis of diabetes due to the chronic proteinuria, she did not assess his actual renal function with a 24-hour urine collection as was done by his nephrologists in 2008. That study showed the Veteran to have had normal renal function at that point, despite the proteinuria and elevated serum creatinine. The causation of those lab abnormalities was attributed to his large muscle mass and the normal break down of excessive amounts of protein. The Veteran was diagnosed with diabetes in 2002 and the diagnosis of renal disease was made in 2010. In December 2020, a nurse practitioner reiterated the findings and opinions of the January 2016 VA examination and opined that the Veteran’s condition is due to his diabetes, uncontrolled hypertension, and not being able to follow up with his nephrologist. The Veteran’s hemorrhagic cystitis in July 1974 was acute and was treated with no further issues. The examiner stated that a one-time UTI or abnormal UA with no further issues until 2001 do not support a nexus to the Veteran’s current kidney disorder and there is no evidence to support a continuity of renal issues from 1974 to 1996. The examiner also stated that the Veteran’s kidney disorder is less likely than not proximately due to or the result of the veteran’s service-connected sleep apnea as the 2001 medical treatment note that suggested a relationship between the two also stated doubt as to whether the Veteran would exhibit this degree of proteinuria without underlying renal pathology. The Board again finds that the evidence of record leaves several questions unanswered. First, clarification is needed to address whether the Veteran’s kidney problems represent renal toxicity, which, is presumptively related to contaminated water exposure at Camp Lejeune. See 38 C.F.R. § 17.400 (b), (c). Second, the June 2020 examiner noted that the Veteran had a possible history of chronic renal stones, undiagnosed, but was not examined for the presence of renal stones while in service. Although the examiner acknowledged this possible history, the examiner did not clarify as to whether the Veteran had kidney stones and whether the current kidney disorder is a progression of the same disease process that potentially manifested as kidney stones. Third, the Board notes that the studies that the June 2020 examiner relies on and uses to discount the May 2019 clinical nephrologist opinion focuses on a relationship between morbidity rates and exposure rather than rates of development of the disease and exposure, which may be misleading as it relates to this specific case. As such, an opinion addressing the studies discussed in the June 2020 opinion and the findings of these studies as they relate to this case is needed. Finally, the Veteran contends that his kidney disorder is related to reported exposure to an herbicide agent while cleaning a vehicle from the Republic of Vietnam while stationed in Germany. The Board notes that a December 2020 email correspondence notes that the Department of Defense (DoD) has provided Compensation Service with a listing of locations outside of Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored and the DoD has not identified any location in Germany where Agent Orange was used, stored, or transported; however, VA did not refer the claim to Joint Services Records Research Center (JSSRC). The record does not reflect the Veteran had active service in the Republic of Vietnam War and is thus not presumed to have been exposed to herbicide agents/Agent Orange. However, pursuant to 38 U.S.C. § 1116, the Board finds the Veteran’s testimony of potential exposure to be credible. As such, referral of this case to JSSRC is necessary to verify herbicide agent exposure or make a formal finding on verification. 2. Entitlement to service connection for diabetes mellitus is remanded. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for a heart disorder, to include coronary artery is remanded. The Veteran asserts that his current diabetes mellitus, hypertension, and heart disorder are related to his in-service exposure to contaminated water at Camp Lejeune, exposure to an herbicide agent while cleaning a vehicle from the Republic of Vietnam, and/or medication required for his service-connected IBS, namely prednisone. In June 2020 and December 2020, VA examinations were obtained to address the Veteran’s contentions. The June 2020 examiner opined that it is less likely than not that the Veteran’s heart disorder is related to the Veteran’s in-service exposure to contaminated water at Camp Lejeune. The June 2020 examiner reasoned that heart conditions are not associated with contaminated waters at Camp Lejeune, the Veteran had every risk factor associated with heart conditions, and more than 90 percent of coronary heart disease events occurred in individuals with at least one risk factor. The December 2020 examiner opined that it is less likely than not that the Veteran’s diabetes mellitus and hypertension are related to service or his service-connected IBS as diabetes is a separate entity entirely from IBS/Crohn’s disease and is unrelated. Significantly, however, the December 2020 examiner noted that Prednisone to treat Crohn’s disease can aggravate diabetes mellitus temporarily, but the Veteran’s other risk factors cannot be excluded. As the June 2020 and December 2020 VA examinations did not adequately address the Veteran’s contentions, including whether the Veteran’s hypertension and diabetes mellitus are related to his in-service exposure to contamination water at Camp Lejeune or Agent Orange exposure, the Board finds the examinations inadequate. Notably, the VA examinations did not fully address whether the Veteran’s Prednisone is related to his current diabetes mellitus and instead was contradictory in its conclusion. See also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (involving a case where the Court recognized the Board’s duty to assist in requesting a VA examination to ascertain whether prednisone caused a Veteran’s diabetes mellitus). Further, medical treatment records note the pathophysiology of obstructive sleep apnea and increased risk of cerebrovascular and cardiovascular disease as well as the presence of hypertension in approximately 80 to 85 percent of patients with chronic kidney disease. See Medical Treatment Records, January 2011; see also VA Examination, June 2020. Given the above, the Board finds remand necessary to obtain new medical opinions. The matters are REMANDED for the following action: 1. Request that JSRRC, or other official source, investigate and attempt to corroborate the Veteran’s reports of alleged exposure to Agent Orange while serving in Germany. If more detailed information is needed for this research, the Veteran should be given an opportunity to provide it. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his exposure to Agent Orange and/or other herbicides, during his period of active duty. 3. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) in connection with his diagnosed kidney disorder. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. Following a review of the lay and medical evidence, the examiner should clarify the nature of any current kidney disorder, to include whether such represents renal toxicity (which is presumptively related to contaminated water exposure at Camp Lejeune under 38 C.F.R. § 17.400 (b), (c). The examiner should also address if it is possible to ascertain whether the Veteran had kidney stones in service and if the current kidney disorder is a progression of the same disease process that potentially manifested as kidney stones. In formulating a medical opinion, if relying to any extent upon the studies noted in the June 2020 VA opinion, the examiner must (a) identify the medical text’s qualifying or misleading aspects; and (b) explain why the examiner found the misleading aspects or conclusions to be less persuasive in this Veteran’s case as to the question of whether the Veteran’s kidney disorder is as likely as not related to exposure to contaminated waters at Camp Lejeune. A complete rationale is required. In providing an opinion, please address the Veteran’s competent report that he received private kidney treatment immediately following separation from service. 4. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) in connection with his diagnosed diabetes mellitus, hypertension, and heart disorder. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. Following a review of the lay and medical evidence, the examiner should determine all diagnoses and provide an opinion as to whether it is at least as likely as not that the Veteran’s diabetes mellitus, hypertension, and/or heart disorder had its onset during service or within one year of service or is otherwise related to service or is at least as likely as not that any current disorder is (a) caused or (b) aggravated by a service-connected disability, to include the Veteran’s diagnosed kidney disorder and/or service-connected obstructive sleep apnea. The examiner should address whether it is at least as likely as not that any current disorder had its onset in service or is otherwise related to service, to include his presumed exposure to contaminated water during the period he was stationed at Camp Lejeune and/or agent orange exposure. (Continued on the next page)   The examiner must fully address whether it is at least as likely as not that any current disorder is (a) caused or (b) aggravated by a service-connected disability, to include the Prednisone that the Veteran took to treat his IBS/Crohn’s disease (the Veteran’s gastrointestinal disability was initially diagnosed as Crohn’s disease). As to hypertension, the examiner is to address the Veteran’s blood pressure reading (130/86) upon separation from service. Additionally, the clinician is reminded that a claimed disability need not have been diagnosed in service; instead, the evidence need only show that the disability had its onset in or is otherwise related to service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.