Citation Nr: 21040314 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-23 047A DATE: July 3, 2021 ORDER Service connection for hepatic steatosis, to include as due to exposure to contaminated water at Camp Lejeune, is granted. Entitlement to service connection for hepatic stenosis, with abnormal liver tests and very low platelet count, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDINGS OF FACT 1. The evidence of record is at least in equipoise with respect to whether the Veteran's hepatic steatosis had its onset during military service. 2. The Veteran does not have a current diagnosis of hepatic stenosis. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatic steatosis have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for service connection for hepatic stenosis are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to August 1981. This case comes before the Board of Veterans' Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2018, the Veteran presented sworn testimony during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. This claim was previously before the Board in February 2019, at which time it was remanded for further development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). A veteran who served more than 30 days (consecutive or non-consecutive) at Camp Lejeune between August 1, 1953, and December 31, 1987, is presumed to have been exposed to contaminants in the water supply, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(7)(iii) (2017). If a Veteran so exposed, the following diseases are service-connected, even if there is no record of such diseases during service: kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309 (f) (2016). Contaminants of the Camp Lejeune water supply include trichloroethylene (TCE), perchloroethylene (PCE), benzene, and other volatile organic compounds. 38 C.F.R. § 3.307 (a)(7)(i). When 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 (2012); 38 C.F.R. § 3.102 (2017); 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 hepatic steatosis, to include as due to exposure to contaminated water at Camp Lejeune, Entitlement to service connection for hepatic stenosis, with abnormal liver tests and very low platelet count, to include as due to exposure to contaminated water at Camp Lejeune A VA physician submitted correspondence in January 2014 and noted that the Veteran participated in a VA Contaminated Water examination. The results indicated that he had a history of possible hepatic stenosis with abnormal liver tests. The Veteran received a private liver biopsy in July 2014 and was diagnosed with a fatty liver. At the October 2018 Board hearing, the Veteran testified that he was stationed at Camp Lejeune during service. Approximately six years after separation, he began to see a private physician who told him that his "liver numbers were mildly out of order." In the mid-2000s, the Veteran started experiencing symptoms including fatigue and low testosterone, and he received his first liver diagnosis around 2012. His physician, however, did not link his condition with the water at Camp Lejeune because he did not know about it; rather, he discussed drinking and alcoholism, which the Veteran did not do. Pursuant to the February 2019 Board remand, a VA medical opinion was submitted in May 2020 by a Camp Lejeune contaminated water subject matter expert, and the examiner noted a diagnosis of liver cirrhosis of an undetermined etiology. He opined that the Veteran's liver cirrhosis was not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. He also opined that the term "hepatic stenosis" was a non-sensical term that was probably a misspelling of the term "hepatic steatosis." With regards to the hepatic steatosis, the examiner found that the medical records did not document any specific conditions that may have caused liver cirrhosis, such as alcohol abuse, obesity, hypertension, hyperlipidemia, diabetes, viral hepatitis, or certain medications. He reviewed the available medical literature and noted that nonalcoholic fatty liver disease referred to the presence of hepatic steatosis when no other causes for secondary hepatic fat accumulation are present. Epidemiologic studies regarding Camp Lejeune contaminated water and the development of nonalcoholic fatty liver disease had not been cited in the most recent Agency for Toxic Substances and Disease Registry (ATSDR) Assessment of the evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases. The Veteran received a VA examination in November 2020 and the examiner noted a diagnosis of cirrhosis of the liver. However, there was no diagnosis of hepatic stenosis because there was no documentation of the condition. The examiner noted that the May 2020 examiner wrote a detailed report that did not implicate definitive evidence to Camp Lejeune based on many factors of the Veteran's history and other possible causes. As a result, he deferred to the May 2020 medical opinion, which found that the Veteran's diagnosed liver disability was less likely than not incurred in or caused by service. At the outset, the Board finds the May 2020 VA medical opinion highly probative with respect to the condition of hepatic stenosis and concludes that there is no hepatic stenosis disability; thus, the first element of the service connection claim has not been satisfied. While the VA physician noted "possible hepatic stenosis," there is no definitive diagnosis in the medical records, to include the November 2020 VA examination. Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, service connection for hepatic stenosis must be denied. With regards to hepatic steatosis, the Board will resolve reasonable doubt in the Veteran's favor and find that service connection is warranted. The May 2020 examiner found that there was no evidence in the medical records for specific conditions that could cause the Veteran's liver condition. However, the most recent ATSDR did not cite any epidemiologic studies regarding Camp Lejeune contaminated water exposure and development of nonalcoholic fatty liver disease. In this regard, the examiner concedes that that the etiology of the Veteran's disability is unknown. Regardless, it is undisputed that the Veteran was exposed to contaminated water during service and did not have any of the documented risk factors for hepatic steatosis. Simply put, although the examiner could not find any current medical literature linking contaminated water with nonalcoholic fatty liver disease, the Board finds that his medical opinion can be reasonably interpreted as supporting at least some contribution to the Veteran's disability from his in-service exposure. This is also consistent with the statement made by the November 2020 examiner when he indicated that the May 2020 examiner wrote a detailed report that did not implicate definitive evidence to Camp Lejeune based on many factors of the Veteran's history and other possible causes. In this case, of course, the standard is not definitive but rather at least as likely as not. Consequently, the Board finds that the evidence is at least in equipoise as to a relationship between the Veteran's hepatic steatosis and his period of active service, and that service connection is therefore warranted for this disability. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.