Citation Nr: 1441955 Decision Date: 09/19/14 Archive Date: 09/30/14 DOCKET NO. 13-09 161A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence was received to reopen the claim for service connection for prostate cancer. 2. Entitlement to service connection for prostate cancer due to exposure to contaminated water at Camp Lejeune. 3. Entitlement to service connection for erectile dysfunction, to include as a residual of prostate cancer. 4. Entitlement to service connection for incontinence, to include as a residual of prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from July 1953 to July 1957 and service in the USMC Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction was subsequently transferred to the RO in Louisville, Kentucky. The Veteran testified before the undersigned Veterans Law Judge at a December 2013 Central Office hearing. A transcript is associated with the claims file. The Board has reviewed the physical and Virtual VA claims files. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The reopened claim and the issues of entitlement to service connection for erectile dysfunction and entitlement to service connection for incontinence are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A March 1999 rating decision most recently denied the claim for service connection for prostate cancer, citing lack of evidence of in-service incurrence or injury and lack of evidence of a nexus. The Veteran was notified of his appellate rights, but he did not appeal and the decision became final. 2. The Public Summary and Context section of a 2009 National Research Council report on the health effects of contaminated water at Camp Lejeune contains evidence that was received after the March 1999 rating decision and that relates to an unestablished fact necessary to substantiate, and raises a reasonable possibility of substantiating, the claim for service connection for prostate cancer. CONCLUSIONS OF LAW 1. The March 1999 rating decision that denied service connection for prostate cancer is final. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 20.1100(a), 20.1104 (2013). 2. New and material evidence was received since the March 1999 rating decision to reopen the claim for service connection for prostate cancer. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). ORDER The claim for service connection for prostate cancer is reopened. REMAND The VA subject matter expert's February 2013 opinion addresses a possible relationship between trichloroethylene (TCE) and tetrachloroethylene (PCE) and prostate cancer, but does not address any relationship with other known contaminates of the water at Camp Lejeune, including 1,2-dichloroethylene (DCE), vinyl chloride and benzene. See Chemicals Involved, Agency for Toxic Substances & Disease Registry (ATSDR), Centers for Disease Control & Prevention (CDC), http://www.atsdr.cdc.gov/sites/lejeune/chem_descriptions.html (last updated Jan. 16, 2014). Further, the VA subject matter expert based his opinion primarily on a National Research Council (NRC) report from 2009, which found there was insufficient or inadequate evidence of an association between TCE and PCE and prostate cancer. See Report in Brief, Contaminated Water Supplies at Camp Lejeune: Assessing Potential Health Effects, Nat'l Research Council 10 (2009). However, that report failed to address a study, published in 2000, that identified prostate cancer as a health problem reported by people of all ages who worked with TCE and PCE. See Camp Lejeune: Contamination and Compensation, Looking Back, Moving Forward, Hearing Before the Subcomm. on Investigations & Oversight, H. R. Comm. on Science & Technology, 111th Cong. (Sept. 16, 2010) (statement of Christopher Portier, Director, ATSDR). In addition, the VA subject matter expert did not address evidence the Veteran's treatment for erectile dysfunction over a decade before being diagnosed with prostate cancer, or his report of bedwetting upon enlistment into service. See July 1953 Enlistment Report of Medical History; August 1984-January 1987 Dr. Teng Treatment Notes; July 1988 and March 1990 Uro-Center Treatment Notes. The record therefore does not contain evidence sufficient to decide the claim, as the Board lacks the medical expertise necessary to determine the nature and etiology of any erectile dysfunction or incontinence and the Veteran has not been provided a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board acknowledges that under current law service connection for exposure to contaminated water is available for Veterans with active service at Camp Lejeune prior to 1957. 38 U.S.C.A. § 1710(e)(1)(F) (West 2002 & Supp. 2013). However, the Veteran may establish service connection when all of the evidence, including that pertinent to service, establishes that a disability is related to service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. First, obtain any outstanding treatment records, including from VA, Dr. Glover, Dr. Lewis, Dr. Edwards, Dr. Teng, Linda Vista Health Center, Dr. Demeter, Dr. Shepherd, University Health System, and North Carolina Urological Associates dated since January 1998. Any attempts to obtain these records should be associated with the claims file. 2. Second, schedule the Veteran for an examination, by an examiner with appropriate expertise, to determine the nature and etiology of any current erectile dysfunction, incontinence, and prostate cancer or a residual thereof. Provide the examiner with the claims file, including a copy of this REMAND and any pertinent evidence in Virtual VA or the Veterans Benefits Management System (VBMS) that is not already of record. The examiner should review this Remand and the claims file and perform all indicated studies. The examiner should determine whether the Veteran currently has, or had during the period on appeal (since March 1, 2010), any erectile dysfunction, incontinence, and prostate cancer or a residual of prostate cancer of an October 1997 surgery to remove prostate cancer. If any incontinence is diagnosed, the examiner MUST provide an opinion, based on examination results and the record, regarding: a) whether any incontinence clearly and unmistakably (it is medically undebatable) preexisted the Veteran's July 1953 enlistment into service. If the answer to (a) is yes, then the examiner should provide an opinion regarding: b) whether any preexisting incontinence was clearly and unmistakably (i.e., it is medically undebatable) not permanently aggravated beyond its natural progression (i.e., worsened in service to a permanent degree beyond that which would be due to the natural progression of the disease) by the Veteran's active service, to include exposure to PCE, TCE, DCE, vinyl chlorides, and benzene contaminates in the water at Camp Lejeune from October 29, 1953, to November 26, 1954. If the examiner does not find clear and unmistakable evidence that any diagnosed incontinence preexisted service and was not aggravated in service, the examiner MUST provide an opinion regarding: c) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran currently has incontinence that is proximately due to, or alternatively, aggravated (i.e., chronically worsened) by the Veteran's October 1997 surgery to remove prostate cancer; and, d) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran currently has incontinence that is otherwise etiologically related to his active service, to include exposure to PCE, TCE, DCE, vinyl chlorides, and benzene contaminates in the water at Camp Lejeune from October 29, 1953, to November 26, 1954. Any opinion regarding incontinence MUST consider the Veteran's reports regarding the onset and duration of his symptoms and his July 1953 Enlistment Report of Medical History, which shows that he reported a history of bedwetting prior to service. If erectile dysfunction is diagnosed, the examiner should provide an opinion, based on examination results and the record, regarding: e) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran currently has erectile dysfunction that is proximately due to, or alternatively, aggravated (i.e., chronically worsened) by the Veteran's prostate cancer or October 1997 surgery to remove prostate cancer; and, f) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran currently has erectile dysfunction that is otherwise etiologically related to his active service, to include exposure to PCE, TCE, DCE, vinyl chlorides, and benzene contaminates in the water at Camp Lejeune from October 29, 1953, to November 26, 1954. Any opinions regarding erectile dysfunction MUST consider the Veteran's reports regarding the onset and duration of his symptoms; Dr. Teng's treatment notes from August 1984-January 1987 (revealing treatment for organic impotence); and July 1988 and March 1990 Uro-Center treatment notes (attributing erectile dysfunction to probable neurological causes, with diabetes not ruled out, and revealing years of treatment for impotence involving prostaglandin injections). If any prostate cancer or a residual of either prostate cancer or an October 1997 surgery to remove prostate cancer is diagnosed, the examiner MUST provide an opinion, based on examination results and the record, regarding: g) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran currently has prostate cancer or a residual of either prostate cancer or an October 1997 surgery to remove prostate cancer, that is etiologically related to his active service, to include exposure to PCE, TCE, DCE, vinyl chlorides, and benzene contaminates in the water at Camp Lejeune from October 29, 1953, to November 26, 1954. Any opinion regarding prostate cancer, or a residual thereof, MUST address evidence in July 1988 and March 1990 Uro-Center treatment records, which reveal several years of treatment involving prostaglandin injections. All opinions MUST consider the Veteran's lay testimony regarding the onset and duration of his symptoms; a study published in 2000 in Environmental Health Perspectives that is titled, "Trichloroethylene and cancer: epidemiologic evidence" (containing reports of prostate cancer in people of all ages who work with PCE or TCE); the opinions of Dr. Glover, Dr. Lewis, and Dr. Edwards (relating prostate cancer to exposure to chemicals at Camp Lejeune); the opinion of Dr. Shabnan (relating erectile dysfunction to prostate cancer); and the February 2013 VA subject matter expert's opinion (relating erectile dysfunction to diabetes mellitus and attributing prostate cancer to a family history of prostate cancer and an onset age consistent with that found in the general population). Please provide the basis for any diagnosis and a complete medical explanation and rationale for any opinion. The rationale should not include in its reasoning statements in older research that exposure to contaminated water at Camp Lejeune did not occur until 1957. The examiner MUST consider each known contaminate (PCE, TCE, DCE, vinyl chloride, benzene) when discussing possible relationships between incontinence, erectile dysfunction, and prostate cancer or a residual thereof and exposure to contaminated water at Camp Lejeune. If the examiner determines that an opinion cannot be given without resorting to speculation, the examiner MUST state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts); a deficiency in the record; or a deficiency in the examiner (i.e., additional facts are required; or by the examiner's not having the necessary knowledge or training). 3. Then, the RO or AMC should readjudicate the claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the case should then be returned to the Board for further appellate action. 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. 2013). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs