Citation Nr: 1641906 Decision Date: 10/31/16 Archive Date: 11/08/16 DOCKET NO. 12-31 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for colon cancer, to include as due to exposure to Camp Lejeune contaminated water. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1972 This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran was diagnosed with colon cancer in 2009, approximately 40 years after separation from service, and the most probative evidence of record is against a finding that the Veteran has colon cancer causally related to service, to include exposure to toxins in Camp Lejeune water. CONCLUSION OF LAW The criteria for service connection for colon cancer, to include as to due to exposure to Camp Lejeune contaminated water, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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. See VBA Manual M21-1, IV.ii.2.C.5.o. 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. It is important to note that to date, no definitive scientific studies have provided 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. Many unanswered questions remain regarding the levels of water contamination at various base locations, the amount and type of exposure experienced by any given veteran who served there, and the scientific probability that a veteran's particular claimed disease resulted from the service at Camp Lejeune rather than from some other source. As a result, there are currently no "presumptive" diseases attributed to service at Camp Lejeune by statute, regulation, or VA policy. 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, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. The Board notes that there is a pending, but yet to be finalized or implemented, proposal to add the following diseases as presumptively service connected to contaminated drinking water at Camp Lejeune: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin's lymphoma; and Parkinson's disease. See 81 Fed. Reg. 62419 (Sept. 9, 2016). Colon cancer is not among those listed. Analysis The evidence of record supports that the Veteran had active service at Camp Lejeune within the stated time period for contaminated water exposure, and exposure to contaminated water is presumed as there is not affirmative evidence to the contrary. The evidence also shows a current treatment for colon problems, including colon cancer. The Board notes that colon cancer is not in the category of limited/suggestive evidence of an association with this exposure to chemical contaminants although there are other cancers listed. Moreover, the Veteran has not submitted competent nexus evidence relating his colon cancer to his service, and competent medical evidence establishing a negative nexus is of record. In addition to the June 1972 normal separation examination report, a May 2012 VA opinion reflects that colon cancer was diagnosed in 2009, 40 years after service. It was noted that colon cancer is one of the most commonly occurring cancers in the general population. In addition, no association between colon cancer and toxic exposures at Camp Lejeune was noted to have been found in either medical literature or in the NRC's report to support a causal linkage. Thus, it was concluded to be less than likely that the Veteran's colon cancer is due to exposure to contaminated water while stationed at Camp Lejeune. To the extent that secondary service connection has been asserted, as reflected in a September 2016 brief, the May 2012 rating decision reflects that service connection has not been established for any disability, including bladder, kidney and/or liver cancer. The representative requests the Board to order another VA examination to determine whether the Veteran has bladder, kidney or liver cancer. The Board does not find that the duty to assist applies to the present case in this manner as a sufficient medical opinion was obtained for the claimed colon cancer. Should the Veteran and representative believe that service connection is warranted for any other disability, a claim should be filed on a proper VA form identifying the disability. In reaching this decision, the Board has considered the Veteran's statements and belief that colon cancer is related to his active military service, to include his presumed in-service contaminated water exposure. It is true that the Veteran's lay statements may be competent to support a service connection claim by supporting the occurrence of lay-observable events or the presence of the disorder or symptoms of the disorder subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, colon cancer is a complex disease entity that requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the May 2012 expert medical opinion is the most persuasive and probative evidence as to the nexus element. As the nexus element is not established, service connection is not warranted for colon cancer. The representative also contended that the Veteran be afforded the full benefit of reasonable doubt for the case. However, as the preponderance of the evidence is against the claim, that benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for colon cancer is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs