Citation Nr: 1602265 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 14-39 387 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE 1. Whether new and material evidence has been submitted to reopen a previously-denied claim for entitlement to service connection for a right breast malignancy and/or gynecomastia, to include as due to environmental hazard exposure at Camp Lejeune. 2. Whether new and material evidence has been submitted to reopen a previously-denied claim for entitlement to service connection for a right breast surgical scar. REPRESENTATION Veteran represented by: Stacey P. Clark, Attorney at Law ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 RO decision that reopened and denied the claims now on appeal. FINDINGS OF FACT 1. The Veteran's claims for entitlement to service connection for a growth in the right breast and the associated surgical scar were denied by the RO in December 2009; he did not appeal that decision to the Board, nor was any new and material evidence received within the following year. 2. New and material evidence relating to an unestablished fact or raising a reasonable possibility of substantiating either claim has not been submitted. CONCLUSIONS OF LAW 1. The December 2009 denial of service connection for a growth in the right breast and the associated surgical scar is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.302, 20.1103 (2015). 2. Absent new and material evidence, the claims are not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for a growth or malignancy in his right breast, as well as the scar resulting from the surgical removal of the growth. He asserts that the growth was caused by the exposure to environmental hazards to which he was exposed during his service at Camp Lejeune. Duties to notify and assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify the Veteran was satisfied prior to the initial RO decision in an August 2013 letter. He was provided with notice regarding his claim to reopen in May 2013. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The letter also provided notice of information and evidence needed to establish disability ratings and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a Veteran in the development of the claim. That duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, relevant VA medical records including the report of the March 2001 surgery, a VA medical opinion with addendum, and the Veteran's own contentions. All relevant facts related to the issue resolved below have been developed to the fullest extent possible; thus, no further assistance to the Veteran is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims decided herein and no further assistance to develop evidence is required. Analysis Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has thoroughly reviewed all the evidence in the Veteran's electronic VA files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Veteran initially filed a claim for service connection related to his right mastectomy in September 2009. The RO denied the claim in December 2009. Although the Veteran filed a timely notice of disagreement with the denial, he did not file a substantive appeal to the Board. He also did not submit any new and material evidence within one year. It thus became final one year after he was notified of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran now seeks to reopen the previously-denied claim and to again pursue a grant of service connection. At the time of the 2009 denial, the record contained the Veteran's service treatment records; his contentions regarding exposure to toxins at Camp Lejeune; his post-service VA treatment records, to include the report of the March 2001 right mastectomy, which was performed at a VA Medical Center; and a December 2009 VA medical opinion by a physician with expertise in occupational medicine based upon a review of the Veteran's medical records. The RO relied upon this opinion in which the physician explained that the Veteran underwent a simple mastectomy for gynecomastia with no breast cancer found, and expressed his conclusion that gynecomastia was not related to drinking water at Camp Lejeune. Review of the medical evidence reflects that in 2001 the Veteran was experiencing pain and increased tissue in his right breast. An ultrasound and a mammogram taken in 2001 were both interpreted as showing a potential infiltrating mass which was suspicious for malignancy versus an increase in the amount of fibroglandular tissue. The report of the surgery shows that the underlying mammary tissue was excised completely along with some surrounding normal adipose tissue. A specimen tissue was sent to the pathology lab for review during the surgical procedure, where the pathologists identified simple gynecomastia. The RO denied the claim on the basis that the Veteran did not have cancer or any malignancy of his right breast, and that there was no indication his benign gynecomastia was incurred in service or was related to service in any way, to include as due to toxic exposure at Camp Lejeune. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Pursuant to 38 U.S.C.A. § 5108, the VA must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Notwithstanding any other provision, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the provisions of 38 C.F.R. § 3.156(a). Such records include service records that are related to a claimed in-service event, injury, or disease. However, this provision does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim. 38 C.F.R. § 3.156(c). The requirement of the receipt of new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal, regardless of the RO's action in the matter. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is 'new and material' as defined above. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc). Second, if VA determines that the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not new and material, the inquiry ends and the claim cannot be reopened. In determining whether the evidence is new and material, the credibility of the newly presented evidence is presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to consider all of the evidence received since the last disallowance. Hickson v. West, 12 Vet. App. 247, 251 (1999). The Court has explained that the language of 38 C.F.R. § 3.156(a) creates a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). With regard to Veterans, such as the appellant in this case, who served at Camp Lejeune between 1957 and 1987, VA has recognized potential exposure to contaminants present in the base water supply prior to 1987. Veterans Benefits Administration (VBA) Training Letter 10-03 (April 26, 2010). 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. Those water systems served housing, administrative, and recreational facilities, and the base hospital. The Agency for Toxic Substances and Disease Registry, a branch of the federal 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. Recent studies have been conducted involving the National Academy of Sciences' National Research Council and the Agency for Toxic Substances and Disease Registry. Based on a congressional mandate, the Department of the Navy requested that the National Research Council 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), the National Research Council reviewed previous work done by the Agency for Toxic Substances and Disease Registry, 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 National Research Council focused on diseases associated with TCE, PCE, and other VOCs. Based on analyses of scientific studies involving these chemicals, the National Research Council provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. The National Research Council analysis used 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. Among these fourteen diseases is breast cancer. According to VBA Training Letter 11-03 (April 27, 2011), the Agency for Toxic Substances and Disease Registry, in a 2010 letter to the Department of the Navy, indicated its belief that the National Research Council 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.' The Agency for Toxic Substances and Disease Registry noted that, although the National Research Council 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 classifies them as 'probable human carcinogens' while the National Toxicology Program refers to them as 'reasonably anticipated to be a human carcinogen.' Additionally, both the International Agency for Research on Cancer and the National Toxicology Program label benzene and vinyl chloride as 'known human carcinogens.' Although the Agency for Toxic Substances and Disease Registry 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, the Agency for Toxic Substances and Disease Registry indicated 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 the National Research Council. According to Training Letter 11-03, scientific organizations, including the National Research Council and the Agency for Toxic Substances and Disease Registry, have determined that some evidence is available that suggests a possible association between development of certain diseases and exposure to the chemicals known to have contaminated the water at Camp Lejeune. 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. Therefore, until scientific evidence shows otherwise, it will be assumed by VA 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. In a VA Health Care Fact Sheet 16-9 dated in May 2010, VA acknowledged that based on findings by the Department of Health's Agency for Toxic Substances and Disease Registry, there was water contamination at Camp Lejeune between November 1957 and February 1987. VA further stated that, "There is limited/suggestive evidence of an association between chronic exposure to perchloroethylene or trichloroethylene and adverse health outcomes, such as breast cancer." See also Veterans Benefits Administration (VBA) Training Letter 11-03 (Revised) (November 29, 2011). Since the final denial in December 2009, in support of his claim to reopen, the Veteran has submitted information about Camp Lejeune that he printed from the internet, and his own written contentions. In particular, he contends that he did not have gynecomastia, and that the 2001 right mastectomy was necessitated by toxic exposure at Camp Lejeune. Additionally, the RO sought an informed medical opinion based upon the review of the Veteran's medical records from a VA physician who also holds a Master's degree in public health. This August 2013 opinion is similar in content to the 2009 VA opinion, in that the reviewing physician notes that there is no probative medical literature connecting the contaminants in the Camp Lejeune water supply to the development of gynecomastia, and concludes that the Veteran's benign gynecomastia is unrelated to service. Upon careful review, the Board holds that no new and material evidence has been submitted to support reopening the previously-denied claim. The Veteran's own contentions can only be viewed as duplicative of his previously-considered contentions made in support of the claims for the same benefits. He continues to contend that he actually had a malignancy of his breast, however, the medical evidence is clear that his particular breast growth was entirely benign. Although the particular internet information which the Veteran submitted was not of record before, the content of the information is either duplicative of that which was known in 2009 and/or irrelevant to the Veteran's particular claim. The VA medical opinion which was obtained in August 2013 is likewise new to the record, but cannot be considered material to the Veteran's claim, as it is essentially duplicative in content to the prior opinion and does not support the Veteran's assertions. In short, it appears that the Veteran's misimpression regarding the cause of his right breast growth may be prompting his continued pursuit of this claim. The evidence is incontrovertible that he did not have cancer or any type of malignancy involving his right breast. After the unusual test reports in 2001, the surgery was wholly warranted to identify any possible cancer; however, the removal of the entire growth and the pathology diagnosis of benign resolve the question fully and favorably to the Veteran. He is indeed fortunate to have had no cancer or malignancy involving his right breast. The medical opinion evidence and the legal references cited above clearly delineate that the Camp Lejeune chemicals may be associated with cancers of the breast; however, there is no association between these chemicals and benign growths of breast tissue. To the extent that further VA training letters and fact sheets, which are cited above, post-date the Veteran's initial RO decision, the Board notes that these do not constitute "evidence" in any sense of the word, and also that they do not support the Veteran's claim. If new legal guidance did indeed support his claim, a different result would have already been reached in this case. As it stands, however, the new submissions do not change the posture of his case in any way, even under the liberal standard articulated in Shade. In summary, absent new and material evidence to support the Veteran's previously-denied claim, the claims for service connection for a growth in the right breast and the associated surgical scar may not be reopened. The appeal is denied. Continued on next page ORDER New and material evidence not having been submitted, the previously-denied claim for service connection for a right breast malignancy and/or gynecomastia, to include as due to environmental hazard exposure at Camp Lejeune is not reopened. New and material evidence not having been submitted, the previously-denied claim for entitlement to service connection for a right breast surgical scar is not reopened. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs