Citation Nr: 1604759 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 12-18 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for transitional cell bladder cancer. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to service connection for lymph node cancer. 4. Entitlement to service connection for rib cage cancer. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from September 1970 to October 1972. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction of the claims remains with the St. Petersburg, Florida RO. In January 2016, the Veteran presented testimony before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The record reflects that the Veteran's appointment of a representative changed throughout the pendency of this claim; but the most recent appointment, dated in January 2015, appoints the representative listed on the title page of this decision. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for prostate cancer, lymph node cancer, and rib cage cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran had active military service at Camp Lejeune within the period during which the water supply there has been deemed to have contained contamination sufficient to produce increased risk of future cancers. 2. The Veteran's transitional cell bladder cancer was detected many years after his service, and is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for transitional cell bladder cancer have not been met. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The U.S. Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VA issued the Veteran a VCAA notice which informed him of the evidence generally needed to support a claim for service connection in February 2011. The notification complied with the VCAA notice requirements of identifying the evidence necessary to substantiate a claim, and the relative duties of VA and the claimant to obtain evidence. The February 2011 notice included appropriate notice regarding disability ratings and effective dates. See Dingess/Hartman, 19 Vet. App. 473. Therefore, the Board finds that VA has satisfied its duty to notify the Veteran. Regarding the duty to assist in this case, all relevant documentation, including service treatment records, VA treatment records, VA examination reports, and the 2016 Board hearing transcript, has been secured. All relevant facts have been developed. The Veteran was afforded a VA examination in April 2011. The examination report is of record. The VA examination report reflects that relevant records were reviewed, and the Veteran was personally interviewed and examined by the April 2011 examiner. The VA examination and opinion is adequate because they were provided by a medical professional based upon a review of the claims file and include a solicitation of history and symptomatology from the Veteran as well as a thorough examination including opinion and accompanying rationale. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). There remains no issue as to the substantial completeness of the Veteran's claim decided below. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In addition, certain chronic diseases may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A chronic disease is defined as a disease listed in 38 C.F.R. § 3.309. See Walker v. Shinseki, 708 F.3d 1331, 1337-38 (Fed. Cir. 2013). In this case, the Veteran's malignant tumor, transitional cell bladder cancer, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) applies for this claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA examiner or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis During his 2016 Board hearing and in documents of record, the Veteran contends that he currently suffers from transitional cell bladder cancer as a result of exposure contaminated water while stationed at Camp Lejeune. With respect to the Veteran's transitional cell bladder cancer, post-service private treatment records reflect that the Veteran was diagnosed with bladder cancer in 2010. The Veteran was afforded a VA examination in April 2011 in order to determine the nature and etiology of his transitional cell bladder cancer. At that time, the Veteran indicated that he was doing well until the summer of 2010. He underwent a cystogram which showed transitional cell bladder cancer. Based on the foregoing, the Board finds that the Veteran has current diagnoses with respect to transitional cell bladder cancer. The Veteran's service treatment records are absent of any complaints, findings, or treatment with respect to his bladder or genitourinary system. However, 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). 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 M21-1, IV.ii.2.C.5.o. The Board notes that the Veteran's service personnel records document his presence at Camp Lejeune during this period of time for a few months in 1971 and a few months in 1972. Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant, such as the Veteran in the instant case, 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. See M21-1, III.iii.2.E.7.a. As such, the remaining inquiry is whether transitional cell bladder cancer is related to his military service, to include his exposure to contaminated water at Camp Lejeune. According to the VA M21-1 Adjudication Procedure Manual, there are studies involving the impact of such contaminated water, which involved the National Academy of Sciences, National Research Council (NRC), and the Agency for Toxic Substances and Disease Registry (ATSDR). Based on a congressional mandate, the Navy requested that the NRC 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 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 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. 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. See M21-1, IV.ii.1.I.15.a. The ATSDR, in a 2010 letter to the Navy, indicated its belief that the NRC report had 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 ATSDR letter emphasizes the fact that the water contaminants themselves have been generally associated with potential carcinogenic health outcomes in humans. See M21-1, IV.ii.1.I.16.a To date, no definitive scientific study provides 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, service connection for any disability claimed to have resulted from contaminated water exposure at Camp Lejeune requires sufficient medical evidence that the disability is related to that exposure. See M21-1, IV.ii.2.C.5.o. That medical evidence will generally be the stated opinion of a competent, qualified medical examiner as to a nexus or link between the claimed disability and the exposure. A competent medical expert must determine, based on each claimant's individual case, whether it is at least as likely as not that the claimed disease or disability has resulted from the contaminant exposure at Camp Lejeune. In this regard, the April 2011 VA examiner noted the Veteran's service in Camp Lejeune and was provided the necessary information relating to contaminated water exposure at Camp Lejeune. See also M21-1, IV.ii.1.I.6.f. The VA examiner also noted the Veteran's smoking history and that he quit smoking in the 1990's. The VA examiner opined that the Veteran's bladder cancer is not caused by or a result of exposure to Camp Lejeune water. His rationale included that smoking is the major risk factor for bladder cancer and that the Veteran's bladder cancer is most likely due to his extreme smoking history. He further stated that the Veterans' long history of heavy smoking far outweighs any risk from potential hazards in the Camp Lejeune water during the relatively brief period that the Veteran was there. The Veteran testified at the January 2016 Board hearing that he did not have any family history of cancer. He also reported that, because he was being refunded money for VA treatment, he should thus be service connected. He cited to a November 2014 Congressional inquiry response wherein K. Brown, MPH, CPH, discussed that the Utilization Review Department at the Florida Caribbean Consolidated Patient Account Center reviewed the Veteran's account for treatment possibly related to his service at Camp Lejeune. While she indicated that it was determined that some of the care he received including medication was for illness or conditions related to his service at Camp Lejeune, no medical opinion has been provided linking the Veteran's transitional bladder cancer to service. This response also included a Camp Lejeune Health Studies sheet regarding mortality among Marines and Navy personnel exposed to contaminated drinking water at Camp Lejeune done by the ATSDR. The conclusion stated that due to limitations, it does not provide definitive evidence for causality, nor can it answer whether an individual has been affected by these exposures at Camp Lejeune. While research indicates there may be some link between the Veteran's exposure to contaminants at Camp Lejeune and bladder cancer, the weight of the probative evidence does not demonstrate that such exposure caused the Veteran's current transitional cell bladder cancer. Here, the Veteran has not submitted a medical opinion to contradict the April 2011 medical opinion and there is no medical opinion of record that suggests a relationship between the Veteran's previously diagnosed transitional cell bladder cancer and his military service. Further, the Board finds that the April 2011 opinion is highly probative on the inherently medical question at issue in this case. It was based upon a thorough analysis of the Veteran's entire history, medical records, clinical examination and medical literature review. The examiner provided a thorough rationale of the risk factors that the Veteran had in developing transitional cell bladder cancer. As the VA examiner's opinions considered all of the pertinent evidence of record, to include statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to his opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) ; Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Therefore, the Board finds that the April 2011 VA examiner's opinion, which provided a detailed rationale for the conclusions reached is highly probative. In light of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current transitional cell bladder cancer and his military service, specifically exposure to contaminated water at Camp Lejeune, with a probability of 50 percent or greater. The Veteran, while competent to report his past and current symptoms, is not competent to associate any of his claimed symptoms to his military service. That is, as a layperson, the Veteran is not competent to opine on matters such as the etiology of his current transitional cell bladder cancer. Such opinion requires specific medical training and is beyond the competency of a non-expert. Transitional cell bladder cancer is not an injury that is observable through the five senses of a lay person; rather, it requires specialized medical testing and knowledge. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a nexus transitional cell bladder cancer and military service to be of no probative value. See 38 C.F.R. § 3.159(a)(1) (2015). Therefore the statements offered by the Veteran in support of his own claim are not competent evidence of a nexus. With regard to direct service connection, the Veteran does not contend that he had onset of bladder cancer during service. Indeed, his service treatment records do not show any finding of bladder cancer or any report of bladder or urinary system disorder or symptoms. Thus, the preponderance of the evidence therefore is against a finding of onset of bladder cancer during service. Additionally, the Board finds that the evidence of record does not show that the Veteran's bladder cancer manifested to a compensable degree within one year of separation from active duty. Rather, as demonstrated by the foregoing evidence, such were not diagnosed until 2010 and there was no history of bladder symptomatology at such time. Instead, the transitional cell bladder cancer was discovered after testing regarding the Veteran's prostate cancer. The Board has also considered whether presumptive service connection may be awarded based on a continuity of symptomatology; however, the Board finds the Veteran has not provided any statements that he experienced symptoms of bladder cancer within a year of his discharge from active service or continuous to the date of diagnosis. Therefore, the Board finds that presumptive service connection for transitional cell bladder cancer, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Accordingly, as the Veteran's bladder cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service, and it did not manifest to a compensable degree within one year of separation from active duty, service connection for such is not warranted. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for transitional cell bladder cancer, and that doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bladder cancer is denied. REMAND The Veteran was provided a VA examination regarding his prostate cancer in April 2011. The examiner opined that the Veteran's prostate cancer was not caused by or the result of exposure to contaminated water at Camp Lejeune. His rationale was that prostate is a common malignancy and there is no specific evidence linking his prostate cancer to an in-service exposure. The VA examiner provided a negative opinion without elaboration. Subsequently, the Veteran provided a Congressional inquiry response which included a study reflecting that persons stationed at Camp Lejeune had higher mortality rates for prostate cancer deaths. The Board finds the 2011 examination is not wholly sufficient as explained above. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4). As the examiner did not provide an adequate rationale, and the Veteran contends that his prostate cancer is related to contaminated water from Camp Lejeune and has submitted a study indicating some relation between contaminate water form Camp Lejeune and prostate cancer, the Board finds that a remand is needed for an addendum opinion. VA treatment records in December 2010 also reflect metastasis of the prostate cancer to the right 11th rib. According to a December 2013 VA treatment report, the Veteran's prostate cancer is "metastatic to at least the lymph nodes." Thus, the Veteran's claims for a lymph node cancer and rib cage cancer are inextricably intertwined with the issue of entitlement to service connection for prostate cancer, and these issues must also be remanded. Finally, because the claim is being remanded, updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain VA treatment records since December 2013 and associate them with the record. 2. After the above development has been conducted, to the extent possible, return the claims file to the provider who conducted the April 2011 examination, if available, for an addendum addressing the Veteran's prostate cancer (or suitable substitute if they are unavailable). The examiner should be requested to review the entire record and his examination report. Upon completion of that review, the examiner should clarify the Veteran's diagnosis to include any metastases. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's prostate cancer is caused by or related to his military service, to include as due to exposure to contaminated water in Camp Lejeune. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. In so opining, the examiner should take into consideration the November 2014 Congressional inquiry response including the Camp Lejeune Health Studies sheet indicating higher mortality rates for prostate cancer for personnel stationed at Camp Lejeune. 3. After any additional notification and/or development deemed necessary is undertaken, the remaining issues on appeal should be readjudicated, in consideration of the additional evidence obtained and any other evidence of record not previously considered. If the benefit sought on appeal remains denied, the AOJ should furnish to the Veteran and his representative a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should 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 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs