Citation Nr: 1228399 Decision Date: 08/17/12 Archive Date: 08/21/12 DOCKET NO. 10-07 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for colo-rectal cancer, to include as a result of exposure to herbicides or exposure to contaminated drinking water at Camp Lejeune. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from February 1963 to February 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Jurisdiction of this matter is with the RO in Louisville, Kentucky. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In October 2008, the Veteran submitted a claim for service connection for colon cancer related to service. The Veteran was afforded a January 2009 VA examination; however, no opinion was provided regarding etiology of the Veteran's diagnosed rectal cancer. An October 2009 rating decision denied the Veteran's claim for service connection for colo-rectal cancer on the basis that there was no evidence that such disability was related to the Veteran's exposure to herbicides in Vietnam or to any aspect of the Veteran's service. Service treatment records dated in October 1965 show that the Veteran was evaluated for complaints of hearing loss and eye trouble while in Phu Bai, Hue, Republic of Vietnam. Therefore, in this case, the Veteran is presumed to have been exposed to herbicides based on his service in the Republic of Vietnam. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service, or within other time limits as set out. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Secretary of VA, however, has reiterated on several occasions that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See, e.g., 72 Fed. Reg. 32,395 (Jun. 12, 2007). In this case, the Secretary has not specifically found any linkage between colo-rectal cancer and herbicide exposure, thus the claimed disorder cannot be presumed to be due to Agent Orange exposure. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 Fed. Cir. 1994). This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions concern the relationship, if any, between the Veteran's diagnosed colo-rectal cancer and his military service, to include the Veteran's presumed exposure to herbicides in Vietnam. Although the Veteran was afforded VA examinations, the January 2009 examiner did not provide an opinion as to etiology of the Veteran's diagnosed rectal cancer, and the October 2011 examiner did not provide an opinion as to a relationship between the Veteran's exposure to herbicides and his diagnosed colo-rectal cancer. Therefore, the Board considers that the January 2009 and October 2011 VA examinations are incomplete. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). In light of the foregoing, the Board finds that another VA opinion is necessary to address the nature and etiology of the Veteran's diagnosed colo-rectal cancer. Moreover, in a February 2010 letter, the Veteran noted that his duty station was at Camp Lejeune and provided an internet article supporting his new theory that cancer-causing chemical in the tap water at Camp Lejeune caused his colo-rectal cancer. A February 2012 VA memorandum concluded that the Veteran served at Camp Lejeune beginning in 1963 until 1965 which is during the period of potential exposure to contaminated water. There has been a recent change of VA policy with regard to the development of claims involving Veteran's who served at Camp Lejeune between 1957 and 1987. This policy involves claims of service connection for disabilities due to contaminated drinking water. VA is responsible for developing all theories of entitlement, whether or not they are raised by the appellant. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). Here, as the Veteran was potentially exposed to contaminated water during service at Camp Lejeune, service connection for colon cancer on this basis must be considered for the reasons set forth below. It has been established that veterans who served at U.S. Marine Corps Base Camp Lejeune, North Carolina, were potentially exposed to contaminants present in the base water supply prior to 1987. See Training Letter 10-03. The chemical compounds involved have been associated by various scientific organizations with the possible development of certain chronic diseases. However, many unanswered questions remain regarding the extent of base water contamination, the type and duration of exposure experienced by base personnel, and the likelihood that contaminant levels in the water supply were high enough to result in a particular disease. While these issues are being studied, the Department of Veterans Affairs (VA) has determined that disability claims from Veterans who served at Camp Lejeune during this period deserve special handling to ensure fairness and consistency in claims processing. As a result, adjudication of these claims has been centralized at the Louisville, Kentucky, Regional Office with tracking measures initiated. For background purposes, in the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. The main source of TCE contamination was on-base industrial activities, while the main source of PCE was an off-base dry cleaning facility. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. These water systems served housing, administrative, and recreational facilities, as well as the base hospital. Department of the Navy estimates indicate that as many as 630,000 active duty personnel may have been exposed. The contaminated wells supplying the water systems were identified and shut down by February 1985. The Agency for Toxic Substances and Disease Registry (ATSDR), a branch of the Department of Health and Human Services, conducted a Public Health Assessment of Camp Lejeune in 1997, which did not determine whether base personnel experienced any long-term health effects from consumption of the contaminated water. However, the assessment indicated that the drinking water contaminants at Camp Lejeune created a "past public health hazard." Follow up studies by ATSDR focused on potential birth defects experienced by mothers exposed to the drinking water. In 2008, as public awareness of Camp Lejeune increased, the Navy sent an informational outreach letter to those individuals who could be identified as having served there between 1957 and 1987. Apparently, the Navy felt that including individuals serving until 1987 would cover potential exposure from any residual contaminants present in the water beyond the well closings in 1985. The letter notified these former service members that "unregulated chemicals were discovered in some of the base drinking water systems" and encouraged them to participate in a registry so as to receive information from new health-related scientific studies initiated by the Navy. These studies involved the National Academy of Sciences ' National Research Council (NRC) and ATSDR. Based on a congressional mandate, the Navy requested that NRC undertake a study to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009), NRC reviewed previous work done by ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual. To address potential long-term health effects, NRC focused on diseases associated with TCE, PCE, and other VOCs. Based on analyses of scientific studies involving these chemicals, NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. The NRC analysis utilized categories of potential disease "health outcomes." The categories included: (1) sufficient evidence of a causal relationship; (2) sufficient evidence of an association; (3) limited/suggestive evidence of an association; (4) inadequate/insufficient evidence to determine whether an association exists; and (5) limited suggestive evidence of no association. The analysis found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited/suggestive evidence of an association. A number of diseases were also identified that fell into the category of inadequate/insufficient evidence to determine whether an association exists. NRC indicated that placement of diseases in these categories was based primarily on studies of highly exposed industrial workers, where the amount and duration of toxic chemical exposure greatly exceeded that experienced by individuals at Camp Lejeune. ATSDR responded to the NRC report in August 2009 with a plan for additional studies, supported by the Navy, to assess the human health risks associated with the Camp Lejeune water contamination. The plan included: a continuation of water flow computer modeling studies to generate potential contaminant exposure rates and durations; a re-analysis of data collected on birth outcomes; studies on birth defects and childhood cancers; and further epidemiological studies based on mortality and health surveys that would be distributed to former Camp Lejeune residents. ATSDR also initiated a series of public hearings to receive input from individuals who had served at Camp Lejeune. In a 2010 letter to the Navy, ATSDR again responded to the NRC report, indicating its belief that the report minimized the potential long-term health effects of exposure to the water contamination. The letter stated the view that "there was undoubtedly a hazard associated with drinking the contaminated water at Camp Lejeune." ATSDR pointed out that, although the NRC report found only limited/suggestive evidence for any diseases associated with the contaminated water, other scientific organizations considered the contaminants to be carcinogenic. For example, regarding TCE and PCE, the International Agency for Research on Cancer (IARC) classifies them as "probable human carcinogens" while the National Toxicology Program (NTP) refers to them as "reasonably anticipated to be a human carcinogen." Additionally, both IARC and NTP label benzene and vinyl chloride as "known human carcinogens." Although the ATSDR letter emphasizes the fact that the water contaminants themselves have been generally associated with potential carcinogenic health outcomes in humans, there is currently only speculation as to the extent of exposure and actual effects on the population at Camp Lejeune. However, ATSDR indicates that its planned studies, making use of computerized water flow modeling and the epidemiological mortality and health survey, will provide a higher level of exposure predictability and definable health outcomes than are recognized as possible by NRC. Evidence development for disability claims based on water contaminant exposure at Camp Lejeune requires obtaining verification of actual service at Camp Lejeune and as much detail as possible about that service. It also requires verifying, with medical evidence obtained through a VA medical examination or other authoritative medical source, whether a claimed current disease or disability is at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune. A number of diseases are identified that meet the criterion of being associated with exposure to the specific Camp Lejeune water contaminants, based on human and experimental animal studies. Manifestation of any of these diseases would be sufficient to initiate a VA medical examination and request an opinion regarding its relationship to Camp Lejeune service. Verification of service at Camp Lejeune has already been established. Additionally, when not specified in the records, efforts should be made to obtain the length of time served at Camp Lejeune, preferably the dates of arrival and departure. When feasible, it is also desirable to obtain the Veteran's work duty location and information regarding whether the Veteran resided on base or off base. There is some indication from ATSDR that certain base locations may have been associated with higher levels of water contamination. However, this has not yet been established with certainty. Obtaining as complete a picture as possible of the Veteran's Camp Lejeune service will assist medical examiners with determining the likelihood of a nexus between water contaminant exposure and disease development. Scientific organizations, including NRC and ATSDR, have determined that some evidence is available that suggests the possible association between development of certain diseases and exposure to the chemicals known to have contaminated the water at Camp Lejeune. Where associations are recognized, they are often based on experimental animal studies involving exposure dose rates generally considered to be in excess of the amount of exposure experienced by Camp Lejeune personnel. To date, there are no definitive scientific studies that can provide conclusive evidence that an individual who served at Camp Lejeune during the period of water contamination developed a particular disease as a result of that service. There are many unanswered questions regarding the levels of water contamination at various base locations, the amount and type of exposure experienced by any given Veteran who served there, and the scientific probability that a Veteran's particular claimed disease resulted from the service at Camp Lejeune rather than from some other source. As a result, there are currently no "presumptive" diseases attributed to service at Camp Lejeune by statute, regulation, or VA policy. On the other hand, the development of certain diseases are more likely than others to be associated with exposure to the chemical contaminants known to have been in the water at Camp Lejeune. Each of the chemical compounds present in the contaminated water has been shown by toxicologic or epidemiologic studies to be associated with some form of negative health outcome. Although certain disease manifestations may be associated with one of the specific contaminants found in the water and not associated with another, it is currently impossible to determine which contaminants, if any, were in the Camp Lejeune water consumed or used by a particular Veteran. Therefore, until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Service connection for any disability claimed to have resulted from contaminated water exposure at Camp Lejeune requires sufficient medical evidence that the disability is related to that exposure. This medical evidence will generally come from a competent and qualified medical examiner who provides an opinion establishing a rational nexus or link between the claimed disability and the exposure. Some diseases, as noted below, have been scientifically associated to a greater or lesser extent with exposure to the chemical contaminants in the water at Camp Lejeune. However, this does not mean that service connection can automatically be established for a Camp Lejeune Veteran claiming one of these diseases. It is up to a competent medical authority, based on each Veteran's individual case, to determine whether it is at least as likely as not that the claimed disease or disability has resulted from the contaminant exposure at Camp Lejeune. Sufficient medical evidence to establish the required nexus may come from a private physician or other competent private medical authority. VA regulations at 38 C.F.R. § 3.159(c)(4) serve as the basis for requesting medical examinations and opinions in claims based on Camp Lejeune service. Under these regulations, an examination should be requested when the claim: (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. These requirements establish a relatively low threshold for requesting medical examinations for Camp Lejeune Veterans. The first requirement is met when a Veteran provides any credible lay or medical evidence showing a current diagnosis or symptoms of a disease or disability. The second is met when service at Camp Lejeune between 1957 and 1987 is verified. The third is met when the claimed disease or disability is one that can reasonably be associated with the known water contaminants at Camp Lejeune. When examinations are requested, it should be kept in mind that these claims represent a unique situation for VA medical examiners. They must determine, on a case-by-case basis whether a particular claimed condition is linked to contaminated water exposure. In order to assist them with their assessment and determination, the regional office must provide them with the following Appendices to VBA Training Letter 11-03. This information replaces the Camp Lejeune "Fact Sheet" intended for VA examiners found in Training Letter 10-03. Appendix A, Internet websites related to the issue of contaminated water at Camp Lejeune, Appendix B, Diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987. Appendix C, Websites describing potential health effects of exposure to chemical contaminants present in the water supply of Camp Lejeune between 1957 and 1987, and Appendix D, Notice to Examiners Evaluating Claims Based on Service at Camp Lejeune. This information is intended to provide the VA examiners with an adequate basis for providing a reasoned opinion. This opinion is a critical element for evaluating the claim. Therefore, if the examiner fails to provide a reasoned opinion and resorts to a statement such as "an opinion cannot be made without resort to mere speculation," the examination should be returned as inadequate. Appendix B of VBA Training Letter 11-03 provides a list of diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987. The National Academy of Sciences ' National Research Council published its Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009. This report included a review of studies addressing exposure to Trichloroethylene (TCE), and Tetrachloroethylene or Perchloroethylene (PCE), as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. Fourteen disease conditions were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. They include: • esophageal cancer • lung cancer • breast cancer • bladder cancer • kidney cancer • adult leukemia • multiple myeloma • myleodisplasic syndromes • renal toxicity • hepatic steatosis • female infertility • miscarriage, with exposure during pregnancy • scleroderma • neurobehavioral effects The Veteran was stationed at Camp Lejeune between 1963 and 1965. Although colo-rectal cancer is not one of the fourteen disease conditions identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure, the Veteran was afforded a VA examination to determine whether his colo-rectal cancer was related to the contaminated water supply at Camp Lejeune. The October 2011 VA examiner opined that after a review of all the records, even though the many cancers were possibly found to have a link to possible contaminated water exposure, rectal cancer was not one of the cancers identified through the medical research. The opinion therefore is that it is not at least as likely as not that contaminated water supply during his two years of active duty time at Camp Lejeune contributed to the development of his rectal cancer. The examiner further stated that if the Veteran needs any other opinion and/or examination, he should be referred specifically to a proctologist ideally or a colorectal surgeon. It was noted that the Butler VA medical center does not have these specialties, but Pittsburgh VA medical center does. The Board finds that while the examiner was responsive to the question posed by the RO, it appears to be a general conclusion based on literature that identifies diseases potentially associated with exposure to the contaminated water supply, of which colon cancer is not listed, instead of a medical rationale specific to the facts of the Veteran's case. Thus, the Board finds that the October 2011 VA examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Hence, the Board finds that another medical opinion is necessary to determine the etiology and relationship, if any, between the Veteran's colo-rectal cancer and his active service, to include as a result of exposure to herbicides in Vietnam or exposure to contaminated drinking water at Camp Lejeune. In addition, the October 2011 VA examination report reflects that the Veteran reported that he was scheduled for a follow-up appointment with Dr. Buchbarker in January 2012. These records are not associated with the claims file. On remand, the Veteran should be requested to identify and provide authorization for VA to obtain these medical records and associate them with the claims file. In addition, all outstanding VA medical records should be obtained and associated with the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Also, the Veteran's complete service personnel records should be requested for his period of active service as they may contain relevant information. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records dated from March 2009 to the present. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that he provide sufficient information and authorization to enable it to obtain any additional evidence (from both VA and non VA health care providers) pertinent to the claim on appeal that is not currently of record. Specifically, he should provide authorization for VA to obtain all outstanding private medical records from Dr. Buchbarker. If, in the alternative, the Veteran wants to obtain and submit these records, he may do so. To the extent that records are sought but not obtained, the claims file should contain documentation of the efforts. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Request from the Veteran information about his time spent at Camp Lejeune, including his housing location, how much time he spent on and off base, and his work duty location(s). 4. Obtain the Veteran's complete service personnel records from his period of active service from February 1963 to February 1967. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. After completion of the above, forward the claims folder to a VA proctologist ideally or a colorectal surgeon (if necessary to be performed at the Pittsburgh VA medical center or on a fee basis), to obtain a medical opinion as to the likely etiology of the Veteran's colo-rectal cancer, given his service at Camp Lejeune between 1963 and 1965 and his exposure to herbicides in Vietnam. Importantly, the examiner must be provided with the claims file, a copy of this remand, and a copy of VBA Fast Letter/Training Letter 11-03 with the 4 appendices, for review in conjunction with the examination. The examiner should be notified of the following: The water supply at Camp Lejeune, North Carolina, was contaminated between 1957 and 1987 with a number of chemical compounds that have been associated by scientific organizations with the potential for developing certain diseases. These include trichloroethylene (TCE), tetrachloroethylene, also known as perchloroethylene (PCE), benzene, and vinyl chloride. The Veteran served at Camp Lejeune during that period and is claiming service connection for colo-rectal cancer. Please opine whether it is at least as likely as not (i.e. 50 percent or greater probability) that the colo-rectal cancer is related to the Veteran's exposure to contaminated water while serving at Camp Lejeune, and provide a complete explanation for that determination. Information on how long the Veteran served at Camp Lejeune, and whether the Veteran lived on or off base, should be considered. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the colo-rectal cancer is otherwise related to the Veteran's military service, to include his presumed exposure to herbicides while serving in the Republic of Vietnam. A complete rationale for all opinions proffered must be included in the report provided. 6. After ensuring that the development above has been completed in accordance with the remand instructions, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).