Citation Nr: 0206874 Decision Date: 06/26/02 Archive Date: 07/03/02 DOCKET NO. 01-02 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for cancer of the hard palate. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from October 1982 to July 1987. The matter comes before the Board of Veterans' Appeals (Board) on appeal of May 1999, December 1999, and November 2000 rating decisions of the Winston-Salem, North Carolina, regional office (RO) of the Department of Veterans Affairs (VA). The May 1999 and December 1999 decisions declined to reopen the veteran's claim for service connection for cancer of the hard palate. The veteran submitted notice of disagreements with these decisions, and they were never final. A November 2000 rating decision considered the veteran's claim on a de novo basis, but denied entitlement to service connection. The veteran continued his appeal, and the issue is now before the Board. The veteran submitted additional evidence directly to the Board at the March 2002 hearing. At that time, he also submitted a waiver of review of this material by the RO. FINDINGS OF FACT 1. Entitlement to service connection for cancer of the hard palate was denied in a May 1995 rating decision, and the veteran did not submit a notice of disagreement within one year of notice thereof. 2. The most recent final denial of the veteran's claim for entitlement to service connection for cancer of the hard palate is contained in a May 1999 rating decision. 3. Evidence received since May 1999 includes medical opinions that were not previously considered, and which purport to show a relationship between the veteran's cancer of the hard palate and active service. 4. The veteran was stationed at Camp Lejeune, North Carolina, during active service from 1984 to 1987; evidence indicates that part of the water supply at Camp Lejeune was found to be contaminated with toxic chemicals that included tetrachloroethylene, trichloroethylene, and dichloroethylene. 5. Private medical opinions state that it can be determined to a reasonable degree of medical certainty that the veteran's cancer of the hard palate was caused by drinking contaminated water during active service; VA medical opinions state it is possible that chemicals in the drinking water may have contributed to the veteran's cancer of the hard palate. CONCLUSIONS OF LAW 1. The May 1995 rating decision that denied entitlement to service connection for cancer of the hard palate is final. 38 U.S.C.A. § 7105 (West 1991 & Supp. 2001); 38 C.F.R. § 3.105(a) (2001). 2. New and material evidence has been received to reopen the veteran's claim for entitlement to service connection for cancer of the hard palate. 38 U.S.C.A. § 5108 (West 1991 & Supp. 2001); 38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001). 3. The veteran's cancer of the hard palate was incurred due to active service. 38 U.S.C.A. § 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303(d) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he developed cancer of the hard palate as a result of active service. He notes that he was stationed at Camp Lejeune, North Carolina, from 1984 to his discharge from service in July 1987. He further notes that the drinking water at the portion of the base on which he lived was discovered to have been contaminated by toxic chemicals. The veteran argues that the VA has recognized that the chemicals found in the water at Camp Lejeune are possible carcinogens, and that his private doctors have attributed his cancer of the hard palate to these chemicals. Therefore, the veteran believes that his claim should be reopened, and that service connection should be established. In reaching this decision, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). The Board finds that VA has completed the duties to notify and assist the veteran in the development of his claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-2097 (2000) (to be codified as amended at 38 U.S.C. § 5102 and 5103 (West 1991 & Supp. 2001); 66 Fed. Reg. 45630-32 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159). A detailed discussion of how the duties were completed is not necessary, as this decision is favorable to the veteran. The Board also finds that a remand would serve no useful purpose for this issue. See Soyini v. Derwinski 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Any "error" to the veteran resulting from this decision does not affect the merits of his claim or substantive rights, for the reasons discussed above, and is therefore, harmless. See 38 C.F.R. § 20.1102 (2001). VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a) which is effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. If malignant tumors become manifest to a degree of 10 percent within one year of separation from active service, then they are presumed to have been incurred during active service, even though there is no evidence of malignant tumors during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309 (2001). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A review of the record indicates that entitlement to service connection for cancer of the hard palate was denied in a May 1995 rating decision. The veteran did not submit a notice of disagreement of this decision within one year of notice thereof. Therefore, the May 1995 decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by the VA. 38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001). Under this standard, new evidence may be sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The veteran submitted a request to reopen his claim for service connection for cancer of the hard palate in January 1999. His request was denied in May 1999 and December 1999 rating decisions on the basis that new and material evidence had not been submitted. A November 2000 rating decision apparently determined that new and material evidence had been submitted, and reviewed the veteran's claim on a de novo basis. Regardless of the finding of the RO, the Board must still make its own determination as to whether or not new and material evidence has been submitted. A review of the May 1995 rating decision indicates that entitlement to service connection for oral cancer was denied on the basis that it was not shown within one year of his separation from service. The evidence submitted since May 1995 includes medical opinions that specifically relate the veteran's cancer of the hard palate to events during active service. This evidence is new in that it contains information that was not previously considered. It is also material, in that it purports to relate the veteran's current disability to active service. Therefore, the Board finds that the veteran's claim for service connection for cancer of the hard palate is reopened. The Board must now consider the veteran's claim on a de novo basis. This will not result in any prejudice to the veteran, as the RO has already considered the claim on this basis. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). A review of the record indicates that the basic facts in this case are not in dispute. The service medical records and medical records for the first year following discharge from active service are negative for evidence of cancer. However, the veteran's statements and testimony show that he was stationed at Camp Lejeune, North Carolina, during service from 1984 to 1987. During this period, he lived in a section of the camp that was later determined to have been serviced by a contaminated water supply. The contaminants in question included tetrachloroethylene, trichloroethylene, and dichloroethylene. The veteran was initially seen by a private doctor in April 1993 after he experienced difficulty in swallowing. Examination and testing determined that he had cancer of the right posterior hard palate. The veteran underwent surgery at a VA facility in July 1993, and radiation therapy at a VA facility from August 1993 to October 1993. He continues to experience residual disability as a result of his cancer and treatment. The sole question that must be resolved is whether or not the veteran's cancer of the hard palate is related to active service, or to be more specific, whether or not the cancer of the hard palate was caused by the contaminants to which the veteran was exposed at Camp Lejeune. The relevant evidence includes several medical opinions submitted by the veteran addressing the relationship between the chemicals to which he was exposed in service and his cancer of the hard palate. In addition, copies of scientific studies that discuss the level of contamination at Camp Lejeune, the chemicals that were involved, and the known and possible health risks that result from exposure to these chemicals are contained in the claims folder. Finally, the VA has also obtained medical opinions that discuss the nature and possibility of a relationship between the chemicals to which the veteran was exposed, and his cancer of the hard palate. In summary, the scientific and medical studies of record acknowledge that tetrachloroethylene, dichloroethylene, and trichloroethylene are possible carcinogens in humans. However, they do not conclusively find that these chemicals are carcinogens, and they do not specifically relate them to the type of cancer for which the veteran was treated. The veteran has submitted a medical opinion from Dr. W.J.M. in support of his claim. W.J.M., M.D., Ph.D., is Professor and Vice Chair for Clinical Affairs, and Chief of the Division of Toxicology at East Carolina University. Dr. W.J.M. stated that he had examined the veteran, and had reviewed his medical records. In addition, he had reviewed a Public Health Assessment prepared by the Agency for Toxic Substances and Diseases Registry concerning Camp Lejeune, as well as information available through the United States Environmental Protection Agency concerning the chemicals to which the veteran was exposed. The examiner noted that the veteran was exposed to tetrachloroethylene, trichloroethylene, and dichloroethylene at Camp Lejeune. Later, the veteran had developed adenocystic carcinoma of the hard palate that required extensive and disfiguring surgery and radiation therapy. He had not regained his health. Dr. W.J.M. performed a risk assessment analysis utilizing the Environmental Protection Agency's integrated risk information system. Dr. W.J.M. stated that it was his professional opinion to a reasonable degree of medical certainty, which he defined as from 60% to 100% certain, that based on the data available at this time, the veteran's chronic health problems, including his cancer, were caused by drinking the contaminated water. An opinion from the VA Chief Public Health and Environmental Hazards Officer, S.H.M., M.D., M.P.H., was obtained in October 2000. After a review of the records, she noted that the veteran had been treated for adenocystic carcinoma of the palate in 1993, which he attributed to drinking water contaminated with tetrachloroethylene, trichloroethylene, and dichloroethylene at Camp Lejeune. She further noted that the chemicals to which the veteran was exposed are not cited in discussions of risk factors for cancers of the oral cavity, salivary gland, or head and neck. Therefore, Dr. S.H.M. opined that while it was possible that chemicals in the drinking water may have contributed to the veteran's cancer of the palate, she was unable to state that it was at least as likely as not that the chemicals were responsible for the cancer. An additional opinion was obtained from Dr. W.J.M. in March 2001. In addition to the information contained in his previous opinion, it was noted that one of the chemicals to which the veteran had been exposed, dichloroethylene, was known to cause cancer in mice and rats when consumed in their drinking water. It was also listed as a probable human carcinogen by the Environmental Protection Agency. In the opinion of Dr. W.J.M., people who drink water contaminated with the chemicals to which the veteran was exposed are at risk for development of cancer. In the absence of any other known exposures that could cause his cancer, it was his opinion that the veteran suffered changes in the tissues of his hard palate from drinking contaminated water containing cancer causing chemicals at Camp Lejeune. While the changes occurred during service, they did not became large enough to be detected without a microscope until 1993. Dr. W.J.M. stated that he held these opinions to a reasonable degree of medical certainty. A second opinion was received from Dr. S.H.M. in July 2001. She reviewed and discussed a toxicological profile for trichloroethylene that had been prepared for the Agency for Toxic Substances and Diseases Registry, as well as the March 2001 opinion from Dr. W.J.M. She noted that his opinion did not provide any conclusive data that chemicals in the drinking water were more likely to be responsible for cancer than other risk activities. The veteran was reported to have been exposed to two of these risk factors at least to a limited degree, including smoking and alcohol consumption. Therefore, Dr. S.H.M. continued to believe that while it was possible that chemicals in the drinking water may have contributed to the veteran's cancer of the palate, she was unable to state that it was at least as likely as not that the chemicals were responsible for the cancer. An addition opinion was obtained from Dr. S.H.M. regarding tetrachloroethylene and dichloroethylene in August 2001. After a discussion of studies concerning these chemicals, she opined that as dichloroethylene is not presently classifiable as to its human carcinogenicity, it was not possible to say that any specific example of cancer in humans is as likely as not the result of exposure to this chemical. Furthermore, while it could be reasonably anticipated that tetrachloroethylene is probably carcinogenic to humans, it was not possible to say that any specific example of cancer in humans is likely as not to be the result of exposure to this chemical. A statement from P.A.G., M.D., was received in January 2002. He stated that he had treated the veteran since June 1999. The veteran had a history of exposure to tetrachloroethylene, trichloroethylene, and dichloroethylene, which were known carcinogens. He did not have a history of heavy tobacco or alcohol exposure. Dr. P.A.G. opined that the veteran's cancer of the palate was due entirely to exposure to chlorinated hydrocarbons in the drinking water in the 1980s. After careful review of the medical opinions, the Board finds that entitlement to service connection for cancer of the hard palate is warranted. The veteran has submitted medical opinions from two doctors which state that the veteran developed cancer of the hard palate as a result of the chemicals to which he was exposed during active service. The opinions from Dr. W.J.M. are particularly strong, given that toxicology is his field of expertise. He states that it is 60% to 100% certain that the veteran developed his cancer due to the chemical exposure. The two opinions from the VA doctor argue that it is not possible to state that it is at least as likely as not that the chemicals were responsible for the cancer. However, these opinions also acknowledge that at least some of the chemicals to which the veteran was exposed are possible carcinogens, and her opinions specifically state that it was possible that chemicals in the drinking water may have contributed to the veteran's cancer of the palate. Therefore, these opinions do not refute the opinions of Dr. W.J.M. With these considerations, the Board concludes that the evidence in favor of the veteran's claim clearly outweighs the evidence against his claim, and entitlement to service connection for cancer of the hard palate secondary to chemical exposure during active service is merited. ORDER Entitlement to service connection for cancer of the hard palate is granted, subject to the laws and regulations governing the award of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.