Citation Nr: 21026533 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-40 987 DATE: May 3, 2021 ORDER Entitlement to service connection for end stage renal disease (kidney disease), to include as due to exposure to Camp Lejeune contaminated water and/or secondary to service-connected prostate cancer, is denied. FINDING OF FACT The weight of competent and credible evidence is against finding that the Veteran's kidney disease began during active service or is otherwise caused by an in-service injury or disease, to include exposure to Camp Lejeune contaminated water or as secondary to service-connected prostate cancer. CONCLUSION OF LAW The criteria for service connection of end stage renal disease have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Marine Corps from May 1973 to May 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from the March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for endstage renal disease. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2019. A transcript of the hearing is associated with the electronic claims file. In September 2019, August 2020 and December 2020, the Board remanded these matters for further development. The Board finds that there has been substantial compliance and the claim is properly before the Board regarding entitlement to service connection for end stage renal disease. See Stegall v. West,11 Vet. App. 268, 271(1998). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride (VC), and other VOCs were also found to be contaminating the water-supply systems. See Veterans Benefits Administration(VBA) Fast Letter 11-03 (January 28, 2013). In September 2016, based on the conclusions of scientific authorities, VA published regulations to establish a presumption of service connection for eight diseases associated with exposure to contaminated water at Camp Lejeune: adult leukemia, aplastic anemia/myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin lymphoma, and Parkinson's disease. 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection 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 this period, and who have been diagnosed with any of the eight diseases. Although kidney cancer is a presumptive disease, chronic renal failure or end stage renal disease is not among those diseases for which the presumption is available. If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weight its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Entitlement to service connection for end stage renal disease (kidney disease) Service personnel records show that the Veteran served at Camp Lejeune for greater than 90 days from approximately 1973-1975 with periods of deployments at sea. In December 2020 the Board denied service connection for nephrolithiasis (kidney stones), to include as due to exposure to Camp Lejeune contaminated water and/or secondary to service-connected prostate cancer. The Board issued a remand order concerning the Veteran's claim of service connection for end stage renal disease (kidney disease). Likewise, the Board found that, as the Veteran was not granted service-connection for his kidney stones, his kidney disease could not be secondary to that disorder. However, the Veteran has contended that his kidney disease was caused by exposure to contaminated water at Camp Lejeune. April 2014 VA Form 21-4138. The Board has reviewed the Veteran's service treatment records (STRs) and military personnel records (MPRs). The Board has not uncovered any complaints, treatment or diagnosis for kidney disease other than kidney stones. The Board acknowledges that the Veteran's separation report of medical history is not of record, however, the separation report of medical examination did not indicate current or a history of kidney disease. January 2016 STR-Medical, p. 1. Post-service, the first indication of kidney disease in the record came in May 2008 when the Veteran was diagnosed with chronic kidney disease stage 3. See January 2012 Correspondence, p. 7. The record shows continual treatment for the Veteran's kidney disease throughout the appellate period, along with the Veteran's continued statements regarding his belief that his kidney disease was caused by contaminated water at Camp Lejeune or due to his service-connected prostate cancer. At the Veteran's hearing before the Board, he testified as to this belief and that he had kidney problems while serving in the military. April 2019 Hearing Transcript. Given that the Board has already conceded that the Veteran suffers from kidney disease and was exposed to contaminated water at Camp Lejeune, the first and second elements of service connection have been met. The Board thus turns to the third element of service connection, a nexus between his current disability and his military service. The Veteran's statements show a sincere belief that his kidney problems began while serving in the military and are either caused by his service-connected prostate cancer or from contaminated water at Camp Lejeune. See April 2019 Hearing Transcript. While the Board acknowledges the Veteran's belief, the question of whether a diagnosis or nexus exists is a medical determination that requires perquisite medical training, skills and expertise, as the determination of the etiology of the Veteran's disability is a complex medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In March 2020, a VA examiner provided a detailed rationale why the Veteran's military service was less likely than not the cause of his kidney disease, and in doing so explained how the Veteran's non-service "long-standing history of hypertension/hypertensive nephrosclerosis with medication and non-compliance, diabetes, hyperlipidemia, obesity, and prior smoking" were the more likely cause of his disability. See March 2020 C&P Exam. Given that the VA examiner reviewed the Veteran's medical records, considered his lay statements, and provided a detailed rationale supported by the record, the nexus opinion was found to be of significant probative value. As such, the Board finds that the Veteran's kidney disability is not secondary to his service-connected prostate cancer. However, the Board found that there was no probative medical opinion of record concerning whether the Veteran's kidney disease was caused by contact with contaminated water. A medical opinion was obtained in January 2021 in which a VA occupational medicine physician provided a very detailed analysis of the concentrations of hazardous substances in the Camp Lejeune water (primarily trichloroethylene (TCE) and perchloroethylene (PCE)), the nature and degree of exposure experienced by Marines, and the Veteran's family and medical history. He opined that the Veteran's chronic kidney disease is not caused by or the result of his exposure to the contaminated water at Camp Lejeune. Specifically, he explained the findings and relevance of a Camp Lejeune mortality study of kidney diseases and an EPA toxicological review of TCE. Then, he stated: "Based on the evidence from epidemiological studies, occupational biomarker studies, and animal studies, ATSDR concluded that there is equipoise and above evidence for causation for TCE and kidney diseases, in particular, ESRD [18] however that causation is dose and duration dependent. Mr. [REDACTED] average level of exposure (36ppm TCE and 7.78ppm PCE was significantly less than the permitted occupational exposure (100ppm TCE & PCE) of the workers who had a higher risk. There was a 34-year latency between his exposure and developing his disease. [The Veteran's] poorly controlled hypertension, use of Mobic(medication) and his smoking are overwhelmingly more likely the underlying cause of his renal failure than the short-term exposure to exceedingly low levels of the contaminants in the water at Camp Lejeune." See January 2021 C&P Exam. Given that the VA examiner reviewed the Veteran's medical records, considered his lay statements, and provided a detailed rationale based upon the evidence of record, the Board finds the January 2021 medical opinion to be of significant probative value. As there is no competing positive nexus opinion of record, the Board finds the Veteran's claim must be denied as there is no nexus between the Veteran's kidney disability and his military service. The benefit-of-the doubt doctrine is not for application, and the claim for service connection for a bilateral hearing loss disability must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.