Citation Nr: 1700505 Decision Date: 01/09/17 Archive Date: 01/18/17 DOCKET NO. 13-34 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for nasopharyngeal carcinoma, claimed as due to exposure to contaminated water at Camp Lejeune, North Carolina. 2. Entitlement to service connection for rheumatoid arthritis, claimed as due to exposure to contaminated water at Camp Lejeune, North Carolina. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty in the United States Marine Corps Reserve from April 1964 to October 1964 and from March 24, 1970 to March 26, 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision by the Louisville, Kentucky Department of Veterans' Affairs (VA) Regional Office (RO). In January 2014, the case was remanded to the RO for additional development. The issue of service connection for nasopharyngeal carcinoma, claimed as due to exposure to contaminated water at Camp Lejeune, North Carolina, is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran served on active duty at Camp Lejeune in 1964, and is presumed to have been exposed to contaminated drinking water. 2. The Veteran's current rheumatoid arthritis was not manifested during his active military service or to a compensable degree within one year following his October 1964 service discharge, and is not shown to be related to an injury, disease, or event in service to include exposure to contaminated drinking water at Camp Lejeune. CONCLUSION OF LAW Service connection for rheumatoid arthritis is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran pre-adjudication VCAA notice by letter dated in November 2010. The letter notified him of the type of evidence necessary to substantiate his claim of service connection for rheumatoid arthritis. He was notified that VA would obtain service records, VA records and records of other Federal agencies; and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A(a), (b), and (c). He was afforded the opportunity for a hearing before the Board, but declined. The RO has obtained his service treatment and personnel records, his VA treatment records, and the private treatment records the Veteran identified. In January 2014, the Board remanded the case to the RO in part to obtain records from physicians L. Brancato and D. Lazaro (which were previously requested with no response). In February 2014 the RO asked the Veteran to submit new medical releases to obtain such records from the identified physicians. In March 2014 his attorney replied only that the Veteran was treated by Dr. Lazaro at the VA (such records were then obtained); the response did not mention Dr. Brancato. The Veteran has not identified any additional pertinent evidence that is outstanding and available. Further, to assist him in substantiating his claim, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). Specifically, a VA medical opinion addressing whether the Veteran's rheumatoid arthritis had its origins in service to include as due to exposure to contaminated water at Camp Lejeune was obtained in March 2015. The report contains the Veteran's medical history, findings noted, and an opinion with rationale supporting the conclusions reached;, the Board finds that the report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran is required to comply with the duty to assist. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Where a veteran served 90 days or more of continuous, active service and a listed chronic disease (to include arthritis), becomes manifest to a degree of 10 percent within a specified period of time following separation (one year for arthritis) such disease shall be presumed to be service connected even though there is no evidence of the disease during service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptoms is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Notwithstanding the above, service connection may be granted for disability first diagnosed after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Thus, in order to prevail on the issue of service connection, there must be evidence of: a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(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 water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (last updated January 28, 2013). 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) (citing the National Academy of Sciences' National Research Council's (NRC) report, "Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.") 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 1957 and 1987. Id. at p. 6. Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. 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. 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. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background and Analysis Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends he has rheumatoid arthritis that is attributable to his exposure to contaminated drinking water at Camp Lejeune, North Carolina. In July 2010, he filed an informal claim for VA disability benefits; he thereafter filed a formal claim (on VA Form 21-526) in October 2010, asserting that his rheumatoid arthritis began in May 1988 and that it was due to exposure to contaminated water when he at Camp Lejeune for basic training. In a July 2012 telephonic communication, he asserted that he was stationed at Camp Lejeune from June 1964 to October 1964 (he did not recall exact dates), that he lived on base in the barracks, and that his work on base involved infantry training and advanced combat training (ACT). The Veteran's service personnel records show that he was a member of the United States Marine Corps Reserve and that he served on active duty from April 1964 to October 1964 and from March 24, 1970 to March 26, 1970. He had no other active duty, other than for training purposes. Records show that he served at Camp Lejeune from August 8, 1964 to October 10, 1964. His service treatment records (STRs) do not show any complaints, treatment, or diagnosis referable to arthritis or rheumatoid arthritis. Postservice private and VA treatment records show that the Veteran had a history of chronic rheumatoid arthritis that dated back to the late 1980s or early 1990s. A private medical record dated in June 1966 (when the Veteran was being treated for nasopharyngeal carcinoma) indicates that rheumatoid arthritis was diagnosed 12 years earlier. More recently, VA outpatient records from 2008 to 2015 indicate that the rheumatoid arthritis was diagnosed initially in 1991. A May 2010 record indicates that the Veteran's first symptoms appeared in April 1988, followed by a diagnosis in 1991. VA rheumatology clinic records also show that there was a family history of rheumatic/connective tissue disease (the Veteran's mother had rheumatoid arthritis) and that the Veteran's arthritis has been relatively stable on medication. It is not in dispute that the Veteran has rheumatoid arthritis, as private and VA treatment records clearly show that such disability has been diagnosed and that he is currently receiving medical care for it. However, in considering the STRs as discussed above, rheumatoid arthritis is not affirmatively shown to have been manifested during service. Thus, on the basis of STRs alone, service connection for the claimed disability under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a) is not warranted. The Veteran is competent to describe certain symptom manifestations of the claimed disability, such as joint pain and stiffness, even though the symptoms were not recorded during service. However, as the STRs lack the documentation of the combination of manifestations sufficient to identify the disability and sufficient observation to establish chronicity during service, and as chronicity in service is not adequately supported by the STRs, then a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). A review of the record did not find evidence of continuity of symptoms after service to support the Veteran's claim. As was previously noted, there is no showing of any form of arthritis, or complaints related thereto, in the Veteran's STRs or post-service medical records for many years after service. Moreover, he has not claimed that symptoms of his disability were manifest in service or have been continuous ever since. Thus, continuity of symptoms has not been established, either by the clinical record or by statements of the Veteran, and the preponderance of the evidence is against the claim of service connection for rheumatoid arthritis based on continuity of symptoms under 38 C.F.R. § 3.303(b). Additionally, there is no evidence - nor does the Veteran claim - that his rheumatoid arthritis was manifested in the initial post-service year; the medical evidence does not mention or refer to the disease as having arisen until the late 1980s or early 1990s, which is many years after the Veteran's active duty service ended (and well beyond the one year presumptive period for arthritis as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307 and 3.309). Hence, service connection for rheumatoid arthritis on a chronic disease presumptive basis is not established. The Board turns to the question of whether service connection for rheumatoid arthritis may be granted on the basis that although the disability was first diagnosed after service, it is shown to have been incurred therein considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d) (direct service connection). As earlier noted, the Veteran's medical records show a current diagnosis of rheumatoid arthritis which became manifest more than a year after his separation from service. After consideration of the direct service connection theory of entitlement, the Board finds that the preponderance of the evidence is against it. Of particular note, there is no medical opinion in the record that relates the Veteran's rheumatoid arthritis directly to his service. The Veteran has not submitted any such evidence, nor has he suggested that an opinion exists. Except for the question of his exposure to contaminated drinking water at Camp Lejeune, which is addressed separately below, there is no competent evidence that his rheumatoid arthritis, first documented after service beyond the one-year chronic disease presumptive period, is otherwise related to an injury, disease, or event therein. 38 C.F.R. § 3.304(d). The Veteran's main contention, and apparent sole reason he believes service connection for rheumatoid arthritis is warranted, is that his disease is related to service via exposure to contaminated water at Camp Lejeune. As was earlier noted, service records show that he served at Camp Lejeune from August 8, 1964 to October 10, 1964; hence, his exposure to contaminated drinking water therein is conceded. He may establish service connection for rheumatoid arthritis under this theory of entitlement by affirmative evidence that exposure to contaminated water caused the claimed disability. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Initially, it is noted that rheumatoid arthritis is not among the fourteen diseases (listed above) that have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune by the NRC. Nevertheless, a VA medical opinion was obtained in March 2015 to assess the probability of whether the Veteran's rheumatoid arthritis may be the result of such exposure at Camp Lejeune. The March 2015 VA medical opinion was by a physician who was a member of a subject matter expert panel concerning the Camp Lejeune contaminated water project. She reviewed the claims file, including the Veteran's VA treatment records, and concluded that his diagnosed rheumatoid arthritis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including his exposure to Camp Lejeune contaminated water. In her rationale, she stated that rheumatoid arthritis was a symmetric, inflammatory, peripheral polyarthritis of unknown etiology. She noted her review of relevant medical literature (citing to two particular sources), stating that it showed no association between rheumatoid arthritis and organic solvents such as trichloroethylene, perchloroethylene, benzene and vinyl chloride. She also noted that the articles described various [nonservice-related] risk factors for rheumatoid arthritis, including smoking, birth into households with private wells, residential exposure to mold, genetics, and environmental agents such as silica dust and mineral oil. The Veteran has not presented any medical opinions contrary to the VA medical opinion of record. The Board acknowledges the Veteran's assertions regarding the cause of his rheumatoid arthritis. The issue of whether there is a causal connection between his current rheumatoid arthritis and his military service (or complaints therein), absent evidence of continuity, is a medical question that requires medical expertise. It is neither argued nor shown that the Veteran is qualified through specialized education, training, or experience to offer an opinion on the question of service connection. Therefore, to the extent his statements are offered as proof of a relationship between a current disability and his period of service (including exposure to contaminated water therein), the statements cannot be considered competent evidence favorable to the claim. In other words, the Veteran's own expressions of belief that his current rheumatoid arthritis is related to his exposure to contaminated water at Camp Lejeune lack any significant probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In view of the foregoing, as the competent evidence does not establish that the Veteran's rheumatoid arthritis was incurred in or aggravated during, or is otherwise related to, his active military service, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER The appeal seeking service connection for rheumatoid arthritis, claimed as due to exposure to contaminated water at Camp Lejeune, North Carolina, is denied. REMAND Regarding the claim of service connection for nasopharyngeal carcinoma, in January 2014 the Board remanded this case to the RO, in part to obtain an addendum medical opinion from the VA physician who conducted an August 2012 VA examination (and rendered a medical opinion at that time which was unfavorable to the Veteran's claim). It was emphasized in the Remand that the examiner "MUST RESPOND FULLY TO THE QUESTION AS TO WHETHER" the Veteran currently had nasopharyngeal carcinoma, and if not, what residuals if any existed from the June 1999 excision of the malignant neoplasm of the nasopharyngeal mass. The second question posed to the examiner was whether the June 1999 malignant neoplasm or any of its residuals were the result of exposure to toxic chemicals while at Camp Lejeune for four months in 1964. [Notably, the Veteran's service personnel records show he was assigned to Camp Lejeune for less than four month, specifically from August 8, 1964 to October 10, 1964.] A review of the March 2015 VA medical opinion shows that the examiner's response did not adhere to the specific Remand requests. For instance, the examiner referred to the Veteran's diagnosis of nasopharyngeal squamous cell carcinoma, although the August 2012 VA examiner had earlier indicated that the Veteran was doing well without evidence of the disease (although he was experiencing dryness of the throat and a weak voice) and recent medical records appear to show that the cancer had not recurred since it was treated in 1999. In other words, it is not clear whether he currently has nasopharyngeal carcinoma and/or any residuals thereof, and whether such was the result of exposure to toxic chemicals in service. Moreover, in July 2015 the Veteran's attorney asserted that the VA medical opinion in 2015 was inadequate, in part because there was no consideration of a September 1964 sick call record that noted the Veteran's complaint of multiple nosebleeds per day without a history of trauma to explain them. In view of the foregoing and to ensure compliance with remand directives (per Stegall v. West, 11 Vet. App. 268 (1998)), a clarifying medical opinion should be sought. Accordingly, the case is REMANDED for the following: 1. The AOJ should return the Veteran's claims file to the VA examiner who provided the March 2015 medical opinion, or (if that provider is unavailable) another similarly qualified physician, for an addendum opinion. If a new examination is deemed necessary, then all indicated tests and studies must be performed. The consulting physician MUST RESPOND FULLY TO THE FOLLOWING: (a). Does the Veteran currently have nasopharyngeal carcinoma, and IF NOT, what residuals, if any exist from the June 1999 excision of the malignant neoplasm of the nasopharyngeal mass? (b). Was the June 1999 malignant neoplasm of the nasopharyngeal mass, or any of its residuals, the result of the Veteran's exposure to toxic chemicals in the water when he was assigned to Camp Lejeune, North Carolina in 1964 (from August 8 to October 10)? In addressing this question, the examiner should discuss the service treatment record dated September 4, 1964, noting that the Veteran was seen with a complaint of multiple nosebleeds per day, in terms of whether this bears any relevance to the eventual development of nasopharyngeal carcinoma and/or its residuals. The examiner must provide a complete explanation for all opinions, based on clinical experience, medical expertise, and established medical principles. 2. Thereafter, the AOJ should review the entire record and readjudicate the claim remaining on appeal. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs