Citation Nr: 1602894 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 13-30 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for breast cancer with right mastectomy, to include as due to exposure to contaminated water at Camp Lejeune. 2. Entitlement to service connection for hypothyroidism, to include as due to exposure to contaminated water at Camp Lejeune and as secondary to breast cancer treatment. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Wirth, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that denied the above claims. In September 2013, the Veteran filed a timely Substantive Appeal (VA Form 9). In February 2014, the Board remanded this appeal to schedule the hearing requested by the Veteran. In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for hypothyroidism is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the Veteran's active military service, she was stationed at Camp Lejeune during the period of time when the water was contaminated; thus, the Veteran was exposed to contaminated water during her active military service. 2. Resolving all doubt in the Veteran's favor, the Veteran's breast cancer is causally related to her active military service, to include exposure to contaminated water while stationed at Camp Lejeune. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for breast cancer with right mastectomy are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that her breast cancer was caused by exposure to contaminated water while serving at Camp Lejeune. The Veteran alleges that she lived in the WM Barracks while stationed at Camp Lejeune and worked in the industrial area known as Hadnot Point. She further alleges that she was stationed at Camp Lejeune from April 1967 to November 1967, and from April 1968 to discharge in July 1968. However, the Veteran continued to live with her husband at Camp Lejeune until October 1969. See July 2010 Written Statement. Service personnel records substantiate that the Veteran had active duty service at Camp Lejeune. Relevant Law and Regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune between August 1953 and December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See VBA Manual M21-1, IV.ii.2.C.5.o. (2015). The contaminants included trichloroethylene (TCE) (a metal degreaser), perchloroethylene (PCE) (a dry cleaning agent), benzene, vinyl chloride, and other VOCs. Id. 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. See VBA Manual M21-1, III.iii.2.E.7.a. (2015). While these issues are being studied, it will be assumed by VA that any given 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. Id. The National Academy of Sciences' National Research Council (NRC) published its report, "Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects," in 2009. This report included a review of studies addressing exposure to TCE and PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. Fourteen diseases were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. These include esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodisplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. See VBA Manual M21-1, IV.ii.1.L.15.a., Appendix B (2015). The list of 14 diseases in this NRC report is not an exhaustive list, however. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Analysis Service treatment records are negative for any complaints, diagnoses, or treatment of breast cancer. The Veteran was diagnosed with breast cancer in 2007, and underwent a simple mastectomy of the right breast in November 2007. At her October 2015 Board hearing, the Veteran testified that she completed cancer treatment in November 2012 and is currently free of breast cancer. The Veteran was afforded a VA examination in September 2010. The examiner stated that he was unable to opine regarding whether the Veteran's breast cancer was due to exposure to contaminated drinking water while stationed at Camp Lejeune without resort to mere speculation. The Veteran submitted a September 2010 letter from her VA treating oncologist, E.M., M.D., Hematology/Oncology Section Chief, in support of her claim. Dr. E.M. states that, according to the Agency for Toxic Substances and Disease Registry (ATSDR), reported problems associated with exposure to the chemicals found in the water at Camp Lejeune include breast cancer. Dr. E.M. also cited the results of a study that confirm findings from a prior study and "suggest that women with the highest PCE exposure levels have a small to moderate increased risk of breast cancer." Dr. E.M. opined that, while it cannot be said with certainty what caused the Veteran's cancer, "it is not unreasonable to assume that [the Veteran's] exposure to TCE and PCE while stationed at Camp Lejeune was a contributing factor to [her] current breast cancer diagnosis." An additional medical opinion was obtained from a VA physician in March 2011. After reviewing the Veteran's claims file and Dr. E.M.'s letter, the physician opined that the Veteran's breast cancer was less likely than not related to contaminated drinking water at Camp Lejeune. The physician explained that the Veteran had been taking estrogen for at least five years before being diagnosed with cancer, and her tumor was strongly positive for estrogen receptors. In addition, the Veteran had other risk factors for breast cancer, including not breast feeding and having a positive family history of colon and pancreatic cancer, which increase the risk of breast cancer. The physician continued that updated information from December 2010 states that the concern about increased risk for breast cancer due to contaminated water at Camp Lejeune is for males. The physician noted that there still are no long-term studies proving a connection between exposure to contaminated water at Camp Lejeune and breast cancer, and that the NRC reported there is no sufficient evidence to prove a link. The Board finds both medical opinions to be competent and credible. The Board acknowledges that the Veteran had risk factors for developing breast cancer that are unrelated to exposure to contaminated water at Camp Lejeune. Nonetheless, the Board finds that, based on Dr. E.M.'s opinion as an oncologist that the Veteran's exposure to contaminated water at Camp Lejeune contributed to her development of breast cancer, the evidence is at least in equipoise that the Veteran's breast cancer was due to or the result of exposure to contaminated water at Camp Lejeune. Given that the evidence is in equipoise, the Veteran is entitled to the benefit of the doubt. Therefore, resolving all doubt in the Veteran's favor, the Board finds that service connection for breast cancer with right mastectomy is warranted. 38 C.F.R. §§ 3.102, 3.303 (2015). ORDER Entitlement to service connection for breast cancer with right mastectomy, to include as due to exposure to contaminated water at Camp Lejeune, is granted. REMAND The Veteran contends that her hypothyroidism was caused by exposure to contaminated water while serving at Camp Lejeune. In addition, she alleges that it was caused by a medication, specifically Tamoxifen, used to treat her breast cancer. Service treatment records are negative for any complaints, diagnoses, or treatment of any thyroid disorder. VA treatment records show the Veteran was diagnosed with hypothyroidism and started on medication to treat it in June 2009. The Board notes that thyroid disorders are not among the fourteen diseases identified by the NRC in the category of limited/suggestive evidence of an association with exposure to the water contaminants at issue; however, the list is not exclusive. In September 2010, the Veteran submitted medical literature, entitled "Environmental chemicals targeting thyroid" and "Thyroid-Disrupting Chemicals: Interpreting Upstream Biomarkers of Adverse Outcomes," that generally discusses the adverse effects to thyroid functioning from exposure to certain environmental chemicals. As the Veteran has provided evidence of a link between exposure to environmental chemicals and thyroid disorders, the Board finds a VA examination and medical opinion are necessary to resolve the issues on appeal. 38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Moreover, in light of the grant of service connection for breast cancer, the Board finds that an opinion addressing whether the Veteran's hypothyroidism is secondary to her treatment for breast cancer is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner competent to determine the etiology of the Veteran's hypothyroidism, including as due to exposure to contaminated water at Camp Lejeune. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should be notified that the water supply at Camp Lejeune 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 chemical compounds include trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride. The Veteran has verified service at Camp Lejeune during the relevant period. After the record review and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: (a) Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's hypothyroidism was incurred in, caused by, or etiologically related to her service, including as due to exposure to contaminated water at Camp Lejeune? In so opining the examiner is advised of the following: (1) the Board is cognizant that the NAS National Research Council has not included hypothyroidism as one of the diseases potentially associated with exposure to TCE and PCE; however, this list is not exclusive; and (2) comment on the relevance of the medical literature submitted by the Veteran in September 2010, entitled "Environmental chemicals targeting thyroid" and "Thyroid-Disrupting Chemicals: Interpreting Upstream Biomarkers of Adverse Outcomes," in this particular case. (b) If the answer to (a) above is no, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's hypothyroidism is caused by OR aggravated by the Veteran's service-connected breast cancer, including as due to medication(s) used to treat her breast cancer? If aggravation by her service-connected breast cancer is found, then the examiner should quantify the degree of such aggravation, if possible. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 2. Readjudicate the claim after the development requested above has been completed. If any benefits sought on appeal remain denied, the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs