KIDNEY DISEASE OF

Summary

The veteran, who served honorably in the United States Marine Corps from August 1963 to October 1967, appeals the denial of service connection for chronic kidney disease. The veteran claimed his condition was due to exposure to contaminated water at Camp Lejeune, North Carolina. While the veteran's service treatment records did not identify any in-service complaints or diagnoses of kidney issues, the Board recognized the presumption of exposure to contaminated water at Camp Lejeune under 38 C.F.R. § 3.307(a)(7). The case hinged on the nexus between the veteran's current stage III chronic kidney disease and this presumed exposure. Conflicting medical opinions were presented: a VA examiner opined the disease was not related to service, citing the veteran's risk factors like hypertension, cardiovascular disease, and shorter exposure period. Conversely, a private cardiologist and the veteran's daughter, citing medical literature and legislative findings, opined that the exposure was at least as likely as not the cause, or that other causes were ruled out. The Board found the evidence in equipoise, meaning the favorable and unfavorable nexus opinions had equal probative weight. Applying the benefit of the doubt doctrine, the Board resolved this equipoise in the veteran's favor. Service connection for chronic kidney disease due to Camp Lejeune water exposure was granted.

Rationale

Veteran diagnosed with stage III chronic kidney disease.; Presumption of exposure to contaminated water at Camp Lejeune applies.; Conflicting nexus opinions found to be in equipoise.; Benefit of the doubt resolved in veteran's favor.

Full Decision Text

Citation Nr: A22000872
Decision Date: 01/21/22	Archive Date: 01/21/22

DOCKET NO. 210706-170119
DATE: January 21, 2022

ORDER

Service connection for chronic kidney disease due to exposure to contaminated water at Camp Lejeune is granted.

FINDING OF FACT

The Veteran's chronic kidney disease is related to in-service exposure to contaminated water at Camp Lejeune.

CONCLUSION OF LAW

The criteria for an award of service connection for chronic kidney disease due to exposure to contaminated water at Camp Lejeune have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty in the United States Marine Corps. from August 1963 to October 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).  The RO denied the Veteran's claim of entitlement to service connection for a kidney disability.  In September 2020, the Veteran timely filed a Supplemental Claim, which was denied in November 2020.  In January 2021 the Veteran timely filed a VA Form 10182, Notice of Disagreement, electing the Direct Review docket.  In April 2021, the Board denied the Veteran's claim of entitlement to a kidney disability.  In June 2021, the Veteran filed a Supplemental claim, which again denied by the RO later that month.  The Veteran timely appealed to the Board, requesting the Hearing docket option pursuant to the Appeals Modernization Act (AMA).  See July 2021 VA Form 10182; 38 C.F.R. § 20.202(b)(2). 

In September 2021, the Veteran testified before a Veterans Law Judge.  A transcript of the hearing has been associated with the record.  Under the AMA, the Veteran/appellant had 90 days from the date of the September 2021 hearing to submit additional evidence.  

The Board emphasizes that no new and relevant evidence is necessary to keep the February 2020 claim on appeal as the January 2021 VA Form 10182 was timely as to the initial adjudication of his claim, and the Board finds that the Veteran was in continuous pursuit of his claim, as set forth in 38 C.F.R. § 3.2500(c).

Service connection for chronic kidney disease due to exposure to contaminated water at Camp Lejeune is granted.

The Veteran contends that his current chronic kidney disease is a result of his active-duty military service, to include as due to exposure to contaminated water during his time stationed at Camp Lejeune, North Carolina.  See February 2020 VA Form 21-4138; April 2020 Correspondence; September 2020 VA Form 20-0995; September 2020 Correspondence; October 2020 Correspondence; January 2021 Correspondence; and September 2021 Board Hearing Transcript.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 

A nexus to service may be presumed when "a chronic disease is 'shown in service (or within the presumptive period under § 3.307).'"  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013).  In order to be "shown in service," there must be "a reliable diagnosis of the chronic disease while in service.... [T]he disease identity must be established and the diagnosis is not subject to legitimate question."  Id.  In such cases, the claimant need not demonstrate nexus, "so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

Alternatively, continuity of symptomatology may be used in place of nexus "[i]f evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned
 (Fed. Cir. 2013).  In order to be "shown in service," there must be "a reliable diagnosis of the chronic disease while in service.... [T]he disease identity must be established and the diagnosis is not subject to legitimate question."  Id.  In such cases, the claimant need not demonstrate nexus, "so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

Alternatively, continuity of symptomatology may be used in place of nexus "[i]f evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported.'"  Walker, 708 F.3d at 1336; 38C.F.R. §3.303(b).  A disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original. 

For purposes of establishing service connection for a disability associated with exposure to contaminants in the water at Camp Lejeune, a veteran, former reservist, or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(a)(7).  Diseases presumptively associated with exposure to contaminated water at Camp Lejeune include kidney cancer but not kidney disease.  38 C.F.R. §§ 3.307(a)(7); 3.309(f).

Even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Here, the Veteran is currently diagnosed with chronic kidney disease, stage III.  See December 2019 and March 2020 private treatment notes.  Therefore, the first element of service connection is met.

Turning to the second element, in-service incurrence of a disease or injury, the Veteran does not report, nor do his service treatment records identify any complaints, treatment for, or diagnosis of a kidney disorder or kidney problems during service.  However, an event in the form of exposure to contaminants in the water supply during his service at Camp Lejeune is presumed.  As such, the second service connection element is also met.

Thus, this appeal turns on whether there is nexus between the Veteran's chronic kidney disease and his service.  There are opposing medical opinions/evidence of record.

The record contains a notation from Dr. M.W. that he did not have any expertise in toxicology and renal injury, but he had "doubt" that any tainted water with that short of exposure harmed him when the Veteran inquired regarding tainted groundwater from Camp Lejeune and Marine Corps Air Station El Toro.  See December 2019 private treatment record.

There is a comment in the March 2020 private treatment record from nurse practitioner O'Brien that she is "not able to state that his kidney disease is from this water source, however the main causes of chronic kidney disease as mentioned above have been ruled out."

The Veteran was afforded a VA examination in April 2020.  The VA examiner opined that the Veteran's chronic kidney disease was not related to service.  The examiner noted that the Veteran had risk factors of hypertension with significant coronary artery disease, having an old myocardial infarction and prior percutaneous transluminal coronary angioplasty; he did not smoke cigarettes, but smoked the occasional cigar; he drank socially; had an impaired fasting glucose; is obese but does not have a diagnosis of obstructive sleep apnea; and does not have a family history of kidney disease.  The examiner further opined that the evidence to support end stage renal disease due to trichloroethylene (TCE)/tetrachloroethylene (PCE) is weak and purports other causes for end stage renal disease such as nephrosis, nephritis, glomerulonephritis, nephrotic syndrome and acute renal failure. She went on to state that end stage renal disease was found elevated and statistically significant in workers exposed to medium to high solvent exposure levels for more than 10 years and noted that the Veteran only spent 
 cigar; he drank socially; had an impaired fasting glucose; is obese but does not have a diagnosis of obstructive sleep apnea; and does not have a family history of kidney disease.  The examiner further opined that the evidence to support end stage renal disease due to trichloroethylene (TCE)/tetrachloroethylene (PCE) is weak and purports other causes for end stage renal disease such as nephrosis, nephritis, glomerulonephritis, nephrotic syndrome and acute renal failure. She went on to state that end stage renal disease was found elevated and statistically significant in workers exposed to medium to high solvent exposure levels for more than 10 years and noted that the Veteran only spent 34 days at Camp Lejeune and further noted he does not have end stage renal disease.  In opining that the Veteran's chronic kidney disease was not related to service she reasoned that his chronic kidney disease was due to his risk factors of hypertension and cardiovascular disease, cigar and alcohol use, male gender, older age at diagnosis (73), impaired glucose, shorter period of exposure (34 days), and latency to diagnosis of 55 years.

In September 2020 the Veteran's doctor submitted a letter noting that the Veteran "has had controlled hyperlipidemia for the past 20 years, and therefore renal insufficiency cannot be assumed to be due to uncontrolled atherosclerotic disease."  The Board notes that the Veteran explained in his September 2020 VA form 20-0995 accompanying statement that his doctor was refuting the proposition that his cardiovascular disease is linked to his kidney disease.  The Veteran also noted that he does not have chronic hypertension and that he has never had diabetes, although concedes he was pre-diabetic for a brief period of time, and that cigar and alcohol use was greatly exaggerated by the April 2020 VA examiner.  He sent in another statement emphasizing how little alcohol he consumes, as it is only occasionally and never excessive, and that when he has an occasional cigar, he never inhales it. See September 2020 Correspondence.  He also emphasized that no one on either side of his family has kidney disease or kidney issues and that he practices healthy living with a proper diet and exercise.  Finally, he noted that when he inquired with his doctor about a renal toxicity test that there was no such test.  See also October 2020 Veteran statement. 

In November 2020 a friend who has known the Veteran for the past 10 years submitted a lay statement on his behalf stating that the Veteran is a healthy individual who has regularly gone to the wellness center for the past 10 years.  She noted that is very health conscious; has a stationary bike and treadmill at home; and eats a balanced diet. She also noted she has never seen him smoke, and regarding drinking alcohol, he infrequently drinks, socially. 

In January 2021, the Veteran submitted a statement in which he advanced that VA conceded that he was at Camp Lejeune long enough for the presumption of exposure to contaminated water to attach.  He stated that while he was at Camp Lejeune he participated in rigorous training and drank copious amounts of water on base.  He again noted that he was told "there is no test" regarding the etiology of his kidney issue; a medical notation as it pertains to Camp Lejeune water that cannot be ruled out as a factor for his kidney disease; a note from his doctor that his atherosclerosis is and has been very well controlled for many years; and emphasizes that his kidney issue only points to one cause, known contaminated water at Camp Lejeune.

In response to the Board's denial in April 2021, the Veteran submitted a Supplemental Claim in June 2021 along with findings from an investigation done by the U.S. Congress and medical opinions.  The findings regarding a review of VA clinical guidance for health care conditions identified by Camp Lejeune legislation, presented to Congress in March 2005 were highlighted in the Supplemental Claim. Specifically, page 8 was cited as it states that "[t]he VA's clinical guidance specifies that [chronic kidney disease] CKD, defined as a chronic decrease in kidney function, or proteinuria should be the clinical end points of concern for renal toxicity resulting from solvent exposure at Camp Lejeune.  The committee finds CKD to be an appropriate endpoint to represent possible kidney damage potentially caused by exposure to contaminated water at Camp Lejeune."   See June 2021 VA Form 21-4138.  The statement goes on to highlight the findings of the legislative committee including the reasons the Veteran might not present with renal toxicity by testing, the request for clinicians to consider other comorbidities if there is no history of acute renal injury, and the request for clinicians to consider that if the progression of kidney failure
 guidance specifies that [chronic kidney disease] CKD, defined as a chronic decrease in kidney function, or proteinuria should be the clinical end points of concern for renal toxicity resulting from solvent exposure at Camp Lejeune.  The committee finds CKD to be an appropriate endpoint to represent possible kidney damage potentially caused by exposure to contaminated water at Camp Lejeune."   See June 2021 VA Form 21-4138.  The statement goes on to highlight the findings of the legislative committee including the reasons the Veteran might not present with renal toxicity by testing, the request for clinicians to consider other comorbidities if there is no history of acute renal injury, and the request for clinicians to consider that if the progression of kidney failure is faster than expected, then exacerbation by TCE, PCE, or other organic solvents in the contaminated water should be considered.  Id.  The Veteran's representative asserts that based on this article the Veteran has met all of the conditions and standards set by the U.S. Congress and that his kidney disease should be found to be related to the contaminated water from Camp Lejeune.

In June 2021, the Veteran's daughter, J.D., who has a Bachelor of Science in chemical engineering from the Massachusetts Institute of Technology, submitted a statement noting the various risk factors for chronic kidney disease, including, diabetes mellitus, hypertension, family history, male, race (African-American), age, smoking, obstructive sleep apnea, alcohol, and recreational drug use.  She indicated that the Veteran only presents with two factors: gender and age.  She emphasized that while she has seen her father drink on rare occasions, she has never seen him intoxicated and that he has always maintained an extremely healthy lifestyle.  She cited several articles containing scientific evidence that exposure to TCE can lead to renal toxicity.  She noted that prior to 1972, the Hadnot Point water treatment plant was the sole water source in an area of Camp Lejeune and that TCE was the primary contaminant in that water.  She went on to state that it is completely plausible that the amount of contaminated water consumed by the Veteran during this time would be enough to rise to the level to risk nephrotoxic effects and therefore, presumably, the Veteran's chronic kidney disease would be at least as likely as not related to service, i.e., the contaminated water at Camp Lejeune.

In a June 2021 statement, Dr. M.P., the Veteran's treating cardiologist for over 35 years, noted that it has been conceded that the Veteran had been exposed to toxic chemicals while at Camp Lejeune, that medical literature states that TCE and/or PCE can cause kidney disease, that the Veteran has no other known causes of chronic kidney disease; and the Veteran has known stage III chronic kidney disease, which is moderately severe.  Based on those findings, Dr. M.P. opined that exposure to toxic chemicals, including TCE and PCE, while at Camp Lejeune is at least as likely as not the cause of his chronic kidney disease.

The Veteran was afforded another VA examination in June 2021.  The VA examiner opined that it was less likely than not that the Veteran's chronic kidney disease is related to service because there is no evidence of chronicity of care and his symptoms are only subjective.

The Veteran was denied again in a June 2021 rating decision and perfected his appeal to the Board and requested a hearing on his July 2021 VA Form 10182.  He also sent along correspondence relating to the June 2021 VA examination noting the examiner was not a medical doctor, but rather a physician's assistant, the examiner did not have any background in "kidney medicine", the examiner did not want to consider the Veteran's points of view, and he took 2 hours to review the Veteran's records while he and his wife sat there due to a lack of preparation.

At the September 2021 Board hearing, the Veteran reiterated all of the positive evidence submitted on his behalf, the aforementioned issues with his June 2021 VA examination, his healthy lifestyle, and emphasized his contention that his chronic kidney disease is related to his time during active service at Camp Lejeune.

The Board finds that the favorable and unfavorable nexus opinions merit equal probative weight in light of the examiners' medical reasoning that supports their conclusions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (instructing that "most of the probative value of a medical opinion comes from its reasoning").  In essence, the rationale of the negative opinions, when taken together is that there are other plausible causes of the Veteran's disability/reasons not related to service, including his male gender, an older age at diagnosis, and latency to diagnosis.  In contrast, the rationale
 chronic kidney disease is related to his time during active service at Camp Lejeune.

The Board finds that the favorable and unfavorable nexus opinions merit equal probative weight in light of the examiners' medical reasoning that supports their conclusions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (instructing that "most of the probative value of a medical opinion comes from its reasoning").  In essence, the rationale of the negative opinions, when taken together is that there are other plausible causes of the Veteran's disability/reasons not related to service, including his male gender, an older age at diagnosis, and latency to diagnosis.  In contrast, the rationale of the positive medical opinions is that despite these other potential etiologies, the Veteran's conceded in-service exposure to contaminated water in Camp Lejeune was just as likely the cause of his current chronic kidney disease. 

Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's chronic kidney disease is related to service.  See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021) (holding the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise).  Additionally, the Board finds that at this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)).  See Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim.")

As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for chronic kidney disease as due to exposure to contaminated water at Camp Lejeune is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

 

J. Ragheb

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. J. Rogers, 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.