Citation Nr: 1601428 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 14-40 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for service connection for breast cancer, including as secondary to exposure to chemicals at U.S. Marine Corps Base Camp Lejeune, North Carolina (Camp Lejeune). 2. Entitlement to service connection for breast cancer, including as secondary to exposure to chemicals at Camp Lejeune. 3. Entitlement to service connection for non-Hodgkin's lymphoma (NHL), including as secondary to exposure to chemicals at Camp Lejeune. REPRESENTATION Veteran represented by: Stacy Clark, Attorney ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran had active service from June 1956 to April 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Louisville RO has jurisdiction over the appeal. New and material evidence in the form of an August 2013 VA memorandum confirming exposure to contaminated water at Camp Lejeune was received within one year of the September 2012 rating decision denying both claims. Accordingly, the September 2012 rating decision is not final, and is the proper decision on appeal to the Board. 38 C.F.R. § 3.156(b). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. Service connection for breast cancer was initially denied in a May 2010 rating decision; the Veteran was notified of such denial and his appellate rights, and no new and material evidence was received within one year of its issuance. 2. Evidence received since the last final denial raises a reasonable possibility of substantiating the claim for breast cancer. 3. The Veteran had active service at Camp Lejeune in 1956 and may have been exposed to contaminated water while serving at this facility. 4. The most probative evidence indicates that the Veteran's breast cancer was not shown in service or for many years thereafter, and is not related to service, to include exposure to contaminated water while serving at Camp Lejeune. 5. The most probative evidence indicates that the Veteran's non-Hodgkin's lymphoma was not shown in service or for many years thereafter, and is not related to service, to include exposure to contaminated water while serving at Camp Lejeune. CONCLUSIONS OF LAW 1. The May 2010 RO decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). 2. New and material evidence has been received since that decision to reopen the previously denied claim for service connection for breast cancer. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 3. The criteria for entitlement to service connection for breast cancer are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). 4. The criteria for entitlement to service connection for non-Hodgkin's lymphoma are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. The record reflects that the RO provided the Veteran with the requisite notice in August 2012, prior to the initial September 2012 rating decision, which advised him of the evidentiary requirements necessary to reopen claims and establish service connection, the division between the Veteran and VA for obtaining evidence, and the process by which disability ratings and effective dates are assigned. Therefore, the Board finds that VA's duty to notify the Veteran has been satisfied. Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues herein decided has been obtained in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The record contains the Veteran's service treatment records, VA and private medical records. The Veteran's claimed disabilities were medically evaluated in February 2014. The examination report has been reviewed and is found to be adequate to make a determination on the claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Petition to Reopen In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C.A. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). The RO initially denied service connection for breast cancer in a May 2010 rating decision, finding that there was no evidence of exposure to toxic chemicals at Camp Lejeune. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the May 2010 decision became final. See 38 U.S.C.A. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104 , 3.156(a)-(b), 20.302, 20.1103. In July 2012, the Veteran sought to reopen his claim for breast cancer. In a September 2012 rating decision, the RO denied the Veteran's petition to reopen on the basis that there was no evidence of exposure to toxic chemicals at Camp Lejeune. In an August 2013 VA memorandum, the Veterans Service Center Manager of the St. Petersburg RO stated that the Veteran's file was reviewed by the Senate Veterans Affairs Committee and was found to have qualifying Camp Lejeune service. Accordingly, the file was transferred to the Louisville, Kentucky RO for administrative review. In this regard, the Board notes that VA has determined that disability claims from veterans who served at Camp Lejeune during the period in question deserve special handling to ensure fairness and consistency in claims processing. As a result, adjudication of those claims has been centralized at the Louisville RO. As the August 2013 VA memorandum was received within 1 year of the September 2012 rating decision, the September 2012 rating decision did not become final, and the May 2010 rating decision is the last final denial of record. 38 U.S.C.A. § 7105(d)(3); Bond, supra; 38 C.F.R. §§ 3.104 , 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence received since the May 2010 denial includes the abovementioned August 2013 memorandum conceding exposure to toxic chemicals at Camp Lejeune, as well as a February 2014 VA examination report. The Board finds that new and material evidence has been submitted to reopen service connection for breast cancer. The memorandum and examination report are not cumulative and redundant of evidence already of record. They are also material, as they indicate an in-service injury. For these reasons, the Board finds that the additional evidence received since the May 2010 decision is new and material to reopen service connection for breast cancer. 38 C.F.R. § 3.156. III. Service Connection The Veteran asserts that his claimed breast cancer and non-Hodgkin's lymphoma (NHL) resulted from exposure to contaminated water at Camp Lejeune during service. 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. § 1131; 38 C.F.R. § 3.303(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests, inter alia, a malignant tumor to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking contaminated water with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011). 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 1953 and 1987. Id. at p. 6. The National Academy of Sciences' National Research Council (NRC) 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 (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, including: cancer of the esophagus, lung, breast, bladder, and kidney; adult leukemia; multiple myeloma; myelodysplastic syndromes; renal toxicity; hepatic steatosis; female infertility; miscarriage with exposure during pregnancy; scleroderma; and neurobehavioral effects. NRC uses the category "limited/suggestive evidence of an association" when the evidence is "limited by the inability to rule out chance and bias, including confounding, with confidence." More specifically, the NRC "concluded that the epidemiological studies give some reason to be concerned that sufficiently high levels of the chemical may cause the disease, but the studies do not provide strong evidence that they actually do so." While the NRC noted that animal testing showed adverse health effects of TCE and PCE, it also noted that the "highest levels of either TCE or PCE measured in the mixed-water samples at Camp Lejeune were much lower than the lowest dose that caused adverse effects in the most sensitive strains and species of laboratory animals. The lower levels of exposure may be of some concern for effects on neurotoxicity and immunotoxicity, but further research is needed to evaluate the specific effects of TCE and PCE and whether they are relevant to humans." Turning to the evidence of record, the Veteran's STRs confirm that the Veteran served at Camp Lejeune from October 22, 1956 to November 27, 1956. The STRs are otherwise silent for complaints of, treatment for, or diagnoses of, breast cancer or NHL. On March1958 separation examination, clinical evaluation of the lymphatics, lung, chest, and breasts were normal. Post-service treatment records indicate that the Veteran felt a mass present in the left axilla in March 2001. In April 2001, a nodule appeared in the left breast. The Veteran subsequently underwent a left modified radical mastectomy in June 2001, and underwent chemotherapy and radiation beginning in July 2001. A March 2005 biopsy of the left breast revealed a recurrence of malignant carcinoma, and the Veteran underwent surgical removal. Ongoing treatment records indicate that the Veteran continued treatment with hormone therapy (Zoladex). Following an April 2012 CT of the chest, the examiner noted new abnormally enlarged mediastinal lymph nodes, concerning for malignancy/metastic disease. An April 2012 flow cytometry showed no immunophenotypic evidence of NHL. Following a June 2012 CT of the chest, the examiner noted that the previously described mediastinal/hilar lymphadenopathy appears less conspicuous, suggesting a partial response to therapy. An August 2012 VA primary care note indicates that the Veteran reported he was diagnosed with lymphoma by his private care provider, and has received 4 rounds of chemotherapy. The Veteran was afforded a VA examination in January 2014 with a member of the subject matter expert panel of the Camp Lejeune Contaminated Water Project. The examining physician considered the contaminated water exposure and the NRC findings, but opined that the breast cancer and NHL were not etiologically related to that exposure. The examiner reasoned that his exposure of 40 days would have been minimal and not sufficient to cause any ill health effect. Regarding breast cancer, the examiner noted that the Veteran was diagnosed at age 64, within the typical age range for diagnosis, and was also obese, which is a known risk factor of breast cancer. The examiner also noted the Veteran's exposure to solvents in his lifelong career of working with powered equipment would have been much higher than that in the water at Camp Lejeune, and emphasized that studies with years of solvent exposure fail to show a risk greater than 2. The examiner cited several additional medical resources regarding the etiological factors of breast cancer, including case-control studies assessing impact of contaminated drinking water on the risk of breast cancer. Regarding NHL, the examiner noted that the medical evidence of record did not demonstrate an established diagnosis. However, presuming the Veteran had NHL, chemotherapy and chest radiation treatment for his breast cancer would be by far the most likely cause of his NHL, as his enlarged lymph nodes were in the radiated area, and his obesity further increased his risk for NHL. The examiner cited several additional medical resources regarding the etiological factors of NHL, including case-control studies assessing the impact of exposure to organic solvents on lymphoid neoplasms. In December 2015, the Veteran submitted an etiological opinion from a private oncologist. The examiner opined that the chemical exposure in the drinking water remains the most likely cause of the Veteran's cancer, greater than a 50/50 chance. The examiner noted there is a 64 percent increase in risk of developing bladder cancer and lymphoma if the patient had ever been exposed to TCE in comparison with the American public. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for breast cancer and NHL. First, there is no evidence that the Veteran's breast cancer or NHL first manifested within the first post-service year after the Veteran's discharge from service in April 1958, or has the Veteran so contended. As such, service connection on a presumptive basis as a chronic disease is not warranted for either claimed disability. See 38 C.F.R. §§ 3.307, 3.309. Nor can the Veteran establish service connect for the disabilities on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b), 3.309; Walker, 708 F.3d 1331. As noted above, the Veteran's service treatment records are completely silent for any complaints of symptoms of breast cancer or NHL. Thus, the preponderance of the evidence is against a finding that skin cancer manifested in service to an extent sufficient to identify the disease and allow for sufficient observation to establish chronicity. 38 C.F.R. § 3.303(b). Therefore, service connection based on continuity of symptomatology is not warranted. With respect to direct service connection, the competent medical evidence of record does not relate the Veteran's breast cancer and NHL to service. In the February 2014 VA medical opinion, the examiner reviewed the Veteran's claims file and relevant medical literature, including the NRC findings relied upon by the VA in adjudicating claims relating to Camp Lejeune contaminated water exposure. Based on her review of this evidence and medical literature, as well as her evaluation of the Veteran, the examiner definitively found there to be no direct or causal connection between the Veteran's claimed disabilities and his exposure to contaminated drinking water while stationed at Camp Lejeune. The examiner further opined that the Veteran's post-service lifelong career of working with powered equipment was a more likely cause of the Veteran's breast cancer, and that the treatment for the Veteran's breast cancer was a more likely cause of the Veteran's NHL. The opinion, which is based on review of the record and supported by a detailed rationale, is found to carry significant weight. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board notes that the Veteran may sincerely believe that his claimed disabilities are causally related to active service. However; the objective clinical etiology opinions with regard to the Veteran's breast cancer and NHL are against any such finding. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the etiologies of a particular cancer. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person such as the Veteran. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for breast cancer and NHL, and the claims are denied. ORDER New and material evidence having been received, the claim of service connection for breast cancer is reopened, and the appeal is granted to this extent only. Service connection for breast cancer is denied. Service connection for non-Hodgkin's lymphoma is denied. ____________________________________________ SONNET BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs