Citation Nr: 1549515 Decision Date: 11/24/15 Archive Date: 12/03/15 DOCKET NO. 14-01 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for chronic myelogenous leukemia (CML) due to contaminated water exposure at Camp Lejeune. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1979, from November 1983 to April 1986 and from April 1989 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board acknowledges that the issues of entitlement to an initial evaluation in excess of 30 percent for a sinus condition, an initial evaluation in excess of 10 percent for a low back strain, an initial compensable evaluation for ganglion cyst of the right wrist, an initial compensable evaluation for a right wrist scar, a compensable evaluation for bilateral hearing loss, a compensable evaluation for hypertension and an compensable evaluation for hemorrhoids; as well as the issues of entitlement to service connection for a mental disability, sleep apnea and diabetes mellitus have been perfected, but not yet certified to the Board. The Board's review of the claims file reveals that the AOJ is still taking action on these issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. The Board notes that there is an electronic claims file associated with the Veteran's claim, which contains relevant evidence that will be considered by the Board in this appeal. FINDINGS OF FACT 1. The Veteran served on active duty at Camp Lejeune in North Carolina from January 1975 to May 1975 and from January 1984 to February 1985, where two on-base water supply systems were contaminated. 2. Resolving doubt in favor of the Veteran, the Veteran has been shown to have CML that is related to exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW Service connection for CML due to contaminated water exposure at Camp Lejeune is warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A (a) (2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Given the favorable disposition of the claim to grant service connection for CML; the Board finds that all notification and development actions needed to fairly adjudicate the claim has been accomplished as to this issue. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Factual Background and Analysis The Veteran contends his claimed disabilities were caused by exposure to contaminated water at Camp Lejeune. The Board notes that the Director of Compensation and Pension Service issued a Training Letter 10-03 in April 2010 in which it was acknowledged that persons residing or working at the U.S. Marine Corps Base at Camp Lejeune from the 1950s to the mid-1980s were potentially exposed to drinking water contaminated with volatile organic compounds. Two of the eight water treatment facilities supplying water to the base were contaminated with either trichloroethylene (TCE) or tetrachloroethylene (perchloroethylene, or PCE) from an off-base dry cleaning facility. The Department of Health and Human Services' Agency for Toxic Substances and Disease Registry (ATSDR) estimated that TCE and PCE drinking water levels exceeded current standards from 1957 to 1987 and represented a public health hazard. In addition to TCE and PCE, ATSDR has also indicated that high concentrations of benzene, Vinyl Chloride, and trans-1, 2-dichloroethylene (1, 2-DCE) were detected in the drinking water system. The National Academy of Sciences ' National Research Council (NRC) and the ATSDR have undertaken studies 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), the NRC reviewed previous work done by the 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, the NRC focused on diseases associated with TCE, PCE, and other VOCs. Based on analyses of scientific studies involving these chemicals, the NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. The NRC analysis has 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. These fourteen diseases are 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, and neurobehavioral effects. The record establishes that the Veteran was on active duty at Camp Lejeune duty during the contamination period as he served on active duty at Camp Lejeune in North Carolina from 1977 to 1979 and from 1984 to 1985. VA concedes that any veteran 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. The Veteran's service treatment records are negative for complaints or treatments for CML. The Veteran underwent a VA examination in July 2011. The VA examiner opined that it was less likely than not that the Veteran's CML was caused by or a result of a specific illness, injury or event that occurred during the Veteran's service. The examiner noted that the weight of the evidence did not support a connection between the degree of the Veteran's toxin exposure while at Camp Lejeune and his current CML. However, the examiner also noted that there was some recent suggestion of an association between certain kinds of leukemia and exposure to compounds found in Camp Lejeune water supply during this time. The examiner indicated however that the impact of toxins was related to the amount and duration of exposure which could not be clearly defined for the Veteran. The examiner concluded that there was therefore insufficient data to determine the adequacy of a dose-effect relationship despite the currently available literature and research. The Veteran also underwent a VA examination in November 2013. The examiner opined that there was no plausible connection between the Veteran's CLM diagnosis and his exposure at Camp Lejeune. The examiner noted that the literature indicated that adult leukemias were not caused by or the result of trichloroethylene (TCE), perchloroethylene (PCE), benzyne or vinyl chloride exposures. In a June 2015 letter, a private oncologist opined that the Veteran's toxin exposure at Camp Lejeune more likely than not caused his CML. The oncologist noted that the Veteran resided at Camp Lejeune from January 1975 to May 1975 and again from January 1984 to February 1985 and that it was presumed that he was exposed to PCE and TCE as well as benzene toxins. In review of the Veteran's history, he did not have any other significant exposure to toxins other than his Camp Lejeune exposure which may have contributed to the development of leukemia. The oncologist also noted that TCE, PCE and benzenes have clearly been linked to the increased rate of future cancers including leukemia such as CML. The oncologist indicated that in the Veteran's case, there was a clear record of exposure and a clear association of his leukemia with TCE, PCE and benzene exposure, as well an absence of other significant risk factors. The Veteran had a condition specified in the law (leukemia) and there was not another identified cause in the history that could have led to his leukemia besides exposure at Camp Lejeune. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for CML as secondary to exposure to contaminated water at Camp Lejeune is warranted. There is a current diagnosis of CML; hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Having reviewed the record, the Board finds there is at least an approximate balance of evidence as to whether the Veteran has current CML that is related to service. As noted above, the Veteran's service treatment records are negative for complaints. However, the Veteran the record establishes that the Veteran was on active duty at Camp Lejeune duty during the contamination period and was therefore potentially exposed in some manner to the full range of chemicals known to have contaminated the water there. The Board notes that there are conflicting opinions as to whether the Veteran's CML disease is related to his service. As noted above, the July 2011 and November 2013 VA examiners opined that it was less likely than not that the Veteran's CML was caused by or a result of a specific illness, injury or event that occurred during the Veteran's service. Conversely, the June 2015 private oncologist determined that the Veteran's toxin exposure at Camp Lejeune more likely than not caused his CML. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). Regarding the negative opinions, the Board notes that while the July 2011 VA examiner opined that it was less likely than not that the Veteran's CML was caused by or a result of a specific illness, injury or event that occurred during the Veteran's service, the opinion also determined that there was insufficient evidence to determine whether the Veteran had a degree of exposure which would be associated with the development of certain kinds of leukemias. In essence, the examiner opined that there was insufficient evidence to form an opinion regarding toxin exposure at Camp Lejeune and the development of the Veteran's CML. In this regard, the Board acknowledges that the Court has held that generally, where an examiner is unable to give an opinion without resorting to mere speculation, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Additionally, while the November 2013 VA examiner opined that there was no plausible connection between the Veteran's CLM diagnosis and his exposure at Camp Lejeune as the literature indicated that adult leukemias were not caused by or the result of TCE, PCE, benzyne or vinyl chloride exposures, as noted above, it has been determined that analysis found that adult leukemia is one of the fourteen diseases that is placed into the category of limited/suggestive evidence of an association between toxins at Camp Lejeune and the development of disease. Conversely, the positive opinion of the June 2015 private oncologist specifically noted that TCE, PCE and benzenes have clearly been linked to the increased rate of future cancers including leukemia such as CML. Additionally, unlike the VA examiners, the private oncologist also noted that the Veteran did not have any other significant exposure to toxins other than his Camp Lejeune exposure. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current CML disability that was caused by his service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. Therefore, having resolved doubt in the Veteran's favor, the Board therefore concludes that a nexus or relationship is satisfied and a grant of service connection for CML from exposure to contaminated water at Camp Lejeune is warranted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for CML due to contaminated water exposure at Camp Lejeune is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs