Citation Nr: 1739051 Decision Date: 09/14/17 Archive Date: 09/29/17 DOCKET NO. 13-21 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for asthma due to exposure to contaminated water. 2. Entitlement to service connection for thyroid cancer, claimed as Graves' disease and excessive fatigue, due to exposure to contaminated water. 3. Entitlement to service connection or brain tumor, diagnosed as acoustic neuroma, due to exposure to contaminated water. REPRESENTATION The Veteran is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to March 1987. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In December 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. FINDINGS OF FACT 1. Asthma is not etiologically related to in-service exposure to contaminated water. 2. Thyroid cancer, claimed as Graves' disease and excessive fatigue, is not etiologically related to in-service exposure to contaminated water. 3. Brain cancer, diagnosed as acoustic neuroma, is not etiologically related to in-service exposure to contaminated water. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for thyroid cancer, claimed as Graves' disease and excessive fatigue, have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 3. The criteria for service connection for brain cancer, diagnosed as acoustic neuroma, have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA's duty to notify was satisfied by a September 2009 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, service personnel records, and VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, there was no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided a series of VA examinations in January 2011, with a supplemental opinion dated in April 2013. The April 2013 VA examiner reviewed the Veteran's electronic claims file, including the supportive opinion from Dr. C.E.B., and rendered an opinion that addresses the salient question presented by these claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With respect to all of the above-captioned disabilities, the Veteran asserts that they are etiologically associated with her in-service exposure to contaminated water while service at Camp Lejeune, North Carolina. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that VA must consider all possible theories of entitlement raised by the claimant or the evidence of record). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: a present disability (for which service connection is sought); incurrence or aggravation of a disease or injury in service; and a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (including malignant tumors) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for malignant tumors). 38 U.S.C.A. §§ 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The Veteran does not assert, and the evidence of record does not support finding that a qualifying disability (malignant tumor) manifested to a compensable degree within one year from her service discharge. As such, service connection on a presumptive basis is not warranted. 38 C.F.R. § 3.307, 3.309. 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 (VC), 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' (NAS)'s National Research Council (NRC)'s 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. VA subsequently added non-Hodgkin's lymphoma to the list of diseases associated with exposure to contaminated water at Camp Lejeune. Further, effective March 14, 2017, presumption of service connection is warranted for eight diseases associated with exposure to contaminated water at Camp Lejeune: adult leukemia, aplastic anemia/myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. It is not in dispute that the Veteran now has asthma, thyroid cancer, and acoustic neuroma (or post-treatment residuals thereof). Her service personnel records show she served at Camp Lejeune. Accordingly, her exposure to contaminated drinking water at Camp Lejeune is established. Asthma, thyroid cancer (claimed as Grave's disease and excessive fatigue), and acoustic neuroma (brain cancer) are not conditions for which presumptive service connection is available. Therefore, even though exposure to contaminated water has been established, there can be no presumptive service connection for these disabilities based on said exposure. Despite this, the Veteran is not precluded from proving entitlement to service connection for these disabilities on a direct basis. See Combee v. Brown, 5 Vet. App. 248 (1993). The salient question presented by these claims is whether there is competent evidence of a nexus between her in-service exposure to contaminated drinking water and her claimed disabilities. The evidence of record includes two opinions wherein this question is addressed. In support of her claim, the Veteran submitted a September 2011 letter from C.E.B., M.D., who self-identified as being family-medicine trained and practicing family medicine, occupational medicine, and sports medicine. Dr. C.E.B. opined that the Veteran "likely" experiences "occupational asthma" because "the possible causation substances are TCE/PCE/toluene/benzene." The doctor continued by opining as follows: [The Veteran] has undoubtedly had an occupational exposure to these various solvents, not only ingesting them, but also in a volatile gaseous form; and at times to very high concentrations (ppb). Although the exposure wasn't long, she had repetitive exposure to these solvents, and some of the concentrations were very high, which is very significant. There are multiple studies that document toluene diisocyanate (TDI)-induced asthma. (4, 5) Studies also demonstrate that for TDI-induced occupational asthma that subjects may have normal spirometry and show no signs of obstruction until challenged with the allergen, TDI, which is how one study made the diagnoses. (5) Overtime, all parameters of lung function can improve, especially after being removed from TDI. In spite of not having complaints of Asthma in the military her exposure could have sensitized her to these solvents so that exposure at a later date in time would cause the clinical manifestations of symptoms. Although her symptoms of asthma are currently classified as mild; she still has to carry a bronchodilator as rescue medication. In addition, asthma classification can change very rapidly and without warning. As there's no family history of asthma, no other known exposures or infections causing the onset of asthma, therefore, [the Veteran] has occupational asthma. I have concluded and it is my opinion that it is as least as likely as not that [the Veteran]'s current condition of occupational asthma was caused by exposure to TCE/PCE/benzene/toluene/vinyl chloride while on active duty at Marine Corps Base Camp Lejeune, North Carolina. With respect to thyroid cancer, the doctor observed that the first diagnosis is dated in 2000. At Camp LeJeune, there was documented multiple sources of pollutants, including an industrial area, a drum dump, a transformer storage lot, an industrial fly ash dump, an open storage pit, a former fire training area, a site of a former on-base dry cleaner, a liquid disposal area, a former bum dump, a fuel-tank sludge area, and the site of the original base dump. The available data on contaminant measurements taken in the 1980s show that TCE and trans-1,2-DCE were the contaminants found most often in mixed-water samples, with a few detections of PCE, methylene chloride and vinyl chloride. The nature of the hazardous-waste sites in the vicinity of the Hadnot Point supply wells suggests that other contaminants may have been present. For example, tests of samples taken from special monitoring wells installed after the contamination was discovered have detected fuel constituents and metals, compounds that were not routinely analyzed in the water samples taken in the 1 980s. (2) Therefore, the full extents of exposure to hazardous chemicals and carcinogenic substances have not been fully elucidated! Of concern are polychiorinated biphenyls (PCBs), which were potentially, directly and indirectly deposited near well sites and absorbed into the water supply as well. PCBs can be formed from vinyl chloride with heat, which could've been supplied during fire training. They could've also been directly deposited as they were widely used as dielectric and coolant fluids, for example in transformers, capacitors, and electric motors. We know that the sites were used as a transformer storage lot and the site of the original base dump. (2) The latter could've provided PCBs in a number of different ways. Due to PCBs' toxicity and classification as a persistent organic pollutant, PCB production was banned by the United States Congress in 1979 and by the Stockholm Convention of Persistent Organic Pollutants in 2001. Concerns about the toxicity of PCBs are largely based on compound within this group that share a structural similarity and toxic mode of action with dioxin. Toxic effects as endocrine disruption and neurotoxicity are also associated with other compounds within the group. (6) One study in humans found an unexpectedly high prevalence of primary hypothyroidism (11%) in workers from a factory producing PBB and PBB oxides. (9) The hypothyroidism was associated with an elevation of anti-microsomal thyroid antibodies and, less frequently, antithyroglobulin antibodies. The increase was highly unusual, especially since the patients were all men. The investigators compared the prevalence to a cohort from Whickham, England (10) and found a significant increase from that group with a p<.001, using the Z test. The investigators concluded that the increase was caused by the exposure to PBB, PBB oxide, or bromine. Additional studies have demonstrated the positive correlation of PCBs with thyroid stimulating, hormone levels (11), which, in turn are positively associate4 with increased cell, proliferation (10) and thus an increased opportunity for mutations promoting the development of cancer. Therefore, I have concluded and it is my opinion that it is more likely than not that [the Veteran]'s Grave's Disease was caused by exposure to TCE/PCE/Benzene/Vinyl Chloride/PCBs, PBDEs while on active duty at Marine Corps Base Camp Lejeune, North Carolina. Although thyroid disease isn't thought to be related to thyroid cancer risk, a study out of Italy confirmed that history of thyroid disease is a relevant indicator of subsequent thyroid cancer risk also in areas at relatively low prevalence of goiter and other thyroid diseases. (11) Thus, [the Veteran]'s Grave's Disease is directly related to her development of Thyroid Carcinoma. Other chemicals are also implicated in the development of [the Veteran]'s Thyroid Carcinoma as well. A study in St. Louis, Missouri examined cancer and other causes of death among a cohort of employees at dry cleaners where PCE was predominantly used. There was an excess of thyroid cancer cases as 0.9 were expected and 3 were observed, giving a standardized mortality ratio (SIVIR) of 3.3. (12) Another study examined the incidence of cancer among workers exposed to vinyl chloride in polyvinyl chloride manufacture. There was also an excess of thyroid cancer cases, as 0.34 were expected and 2 were observed, giving an SMR of 5.9. (13) The study that showed a definite association of thyroid cancer with benzene was shown amongst textile workers with 10 or more years of employment. (14) This correlation was shown in both factory works and those who worked in administrative areas of the textile industry. In this study, formaldehyde was also associated with thyroid cancer for longer than 10 years of employment. All of these studies show an increased incidence of thyroid cancer, and the later study a definite association with thyroid cancer, from work environments where the exposures were limited to ambient room temperatures and intermittent topical exposure. [The Veteran] has had these as well as ingested these organic solvents in water; foods and drinks made from the water; took long hot showers and baths, which served to open the pores in the skin and not only drive the solvents in but also volatized them and they were inhaled; cooking food e.g. boiling water also volatized the solvents; and washing and drying the clothes also provided exposure to volatile gases and new compounds made as different types of laundry detergents, fabric softeners, bleaches, dryer sheets, etc. were added to the solvents, none of which were determined nor investigated! There will not be another study that will give the necessary data to explain the ultimate exposure these soldiers experienced, as there are many solvents and chemicals due to the contaminants noted and not studied, and those solvents missed altogether! (2) Our best case scenario is to study the soldiers who went through Camp LeJeune and determine the conditions and diseases that are in excess the normal population. There may need to be a new approach to our study design as the dose or level of exposure doesn't always have to be significant to get an effect. The study of dry cleaner workers exposed to PCE (12) demonstrated no association between level of exposure and mortality from all cancer or from cervical cancer, as both cervical and esophageal cancers were directly associated with PCE. It may become evident that for certain compounds and solvents, any exposure is too much, like that of nuclear exposure. The difference may just be the lag time to disease and/or dysfunction and/or cancer. Another noteworthy study was noted in the U.S. Military personnel. Thyroid cancer incidence was followed among active duty US military personnel between 1990 and 2004, White and Black, using data from the Department of Defense's Automated Central Tumor Registry and the National Cancer Institute's Surveillance, Epidemiology, and End Results (SEER-9) program. The incidence of Papillary Carcinoma of the Thyroid was significantly higher in the military than in the general population among White women, Black women and Black men. In addition, heightened medical surveillance does not appear to fully explain the differences between the two populations or the temporal increases in either population. (15) There have been several theories put forth to explain this increase in Papillary Carcinoma of the Thyroid in the U. S. military compared to the general population. Ionizing radiation exposure is the major known risk factor for Papillary Carcinoma of the Thyroid and military personnel have an increased to radiation, particularly from depleted uranium that is used in munitions and tank armor. Military personnel may also have increased exposures to environmental chemicals, such as PCBs, which have been correlated with increased thyroid stimulating hormone levels, which increase cell proliferation and possibly mutagenesis and cancer. Polybrominated diphenyl ethers PBDEs), which are similar to PCBs, can also affect thyroid function (16) and lead to increased incidence of Papillary Thyroid Carcinoma. Therefore, I have concluded and it is my opinion that [the Veteran]'s Papillary Thyroid Carcinoma is due to her exposure to TCE/PCE/Benzene/Vinyl Chloride/PCBs/PBDEs while on active duty at Marine Corps Base Camp Lejeune, North Carolina. In addition, I have concluded and it is my opinion that [the Veteran]'s Papillary Thyroid Carcinoma is due to other factors related to active military service while she served her country in the Marine Corps from July 7, 1981 to March 10, 1987. [The Veteran] continues to suffer from fatigue. Epidemiologic studies of occupational exposure to mixed solvents showed limited/suggestive evidence of neurobehavioral effects including effects on visuomotor and motor function, fatigue, headache, deficits in concentration. Toxicologic studies of TCE showed some decrements in neurobehavioral outcomes. (2, 3) Consequently, I have concluded and it is my opinion that [the Veteran]'s Fatigue is due to her exposure to TCE/PCE/Benzene/Vinyl Chloride/PCBs/PBDEs while on active duty at Marine Corps Base Camp Lejeune, North Carolina. Beyond initially stating that the Veteran had no history of exposure to risk factors for developing acoustic neuroma of the brain, the doctor provided no specific etiological opinion or an underlying rationale relating it to or disassociating it from the Veteran' active duty. In April 2013, a VA examiner reviewed the evidence of record, include Dr. C.E.B.'s September 2011 letter. The April 2013 examination report indicates that the examiner is a medical doctor (M.D.), with a Masters of Public Health. Further he is a Senior Clinician, War-Related Illness and Injury Study Center VISN 5 Subject Matter Expert for Camp Lejeune Contaminated Water. The examiner opined as follows: Is there a plausible connection between the diagnosis and exposure history: a. Asthma: inhalation of irritants, such as trichloroethylene, may trigger a reactive airways dysfunction syndrome (RADS) and may also, independently, make underlying asthma worse. The linkage of asthma to an exposure relies on the development of asthma during exposure. None of the service treatment records document such a temporal relationship. b. Acoustic Schwannomas are not on the list of... conditions described by the National Academy of Sciences. Web-based electronic just-in-time medical reference support systems such as Up-to-Date do not list organic solvents as a potential cause of acoustic neuromas. A literature search in the National Library of Medicine ("pubmed") on April 7, 2013 failed to show any references supporting such an association. c. Thyroid cancer: Neither thyroid disease not thyroid cancer are on the list of...conditions described by the National Academy of Sciences. i. Still, Dr. [C.E.B.] cites the original Blair I Stewart dry-cleaner mortality study (1990) documenting a statistically non-significant increase (3 vs 0.9 expected) in thyroid cancer. The authors Blair et al. themselves did not further explore that increase although they pursued further analyses on dose-response in other cancers as the thyroid cancer increase was not statistically significant. In fact, the follow-up study of the same cohort (Blair 2003) no longer finds that elevation and shows no statistically significant elevation in thyroid cancer mortality. Occupational exposure to perchloroethylene does not appear related to thyroid cancer. ii. Dr. [C.E.B.] correctly cites a recent publication documenting that service women have an unexplained small excess of thyroid cancer, from 1.4-fold for white and 2.3-fold for black women. This increase is documented in women across all services and remains unexplained. Because it is consistently elevated, it is unclear to me why the elevation should be attributed related to Camp Lejeune, where a minority of service women were stationed (Enewold 2011). Close scrutiny of the data tables is not helpful as too little information is available on Marine exposures and disease development. As the rise in thyroid cancer appears in civilian women too, the appropriate interpretation remains unclear. iii. Dr. [C.E.B.] cites studies of benzene and vinyl chloride to support an association. [Veterans Health Administrated] subject matter experts assembled a task group to develop a model of exposures derivation based on the NAS document strategy. Exposures derived from that calculation sheet are between two and two-and-one-half orders of magnitude below the level considered hazardous by the Environmental Protection Agency, well outside of the range that would raise concern. iv. Finally, web-based electronic just-in-time medical reference support systems such as Up-to-Date do not list organic solvents as a potential cause of thyroid disease or thyroid cancers. 7. Nexus: a. No scientific data support the idea that [the Veteran]'s Schwannoma is associated with the exposures of concern. b. [The Veteran]'s asthma pattern does not follow the pattern seen in asthma related to exposures in that onset occurred after separation from service. It cannot therefore be related. Dr. [C.E.B.] acknowledges the inconsistency and opines only that her asthma "might be related." This association is inadequate to attribute cause. c. The publications cited by Dr. [C.E.B.] raise questions about appropriate attribution. Still, the dry-cleaner argument fails as the 2003 follow-up cohort study did not show the continued elevation of risk, documenting that the statistically non-significant excess was in fact a random occurrence. The benzene and vinyl chloride studies are not relevant because of the very low dose. The military cohort thyroid cancer study raises interesting questions but does not document Camp Lejeune causation and, by itself, is inadequate to document a causal relationship. 8. It is less likely than not that the diagnoses of asthma, acoustic Schwannoma, thyroid cancer and thyroid disease are related to trichloroethylene, perchloroethylene, vinyl chloride, or benzene contamination in the Camp Lejeune ground water. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The only positive opinion of record is that of Dr. C.E.B.'s September 2011 letter. As discussed above, although Dr. C.E.B. is a licensed and practicing doctor, the listed specialties and practice areas do not concern diseases associated with contaminated water. In contrast, the April 2013 VA examiner's training and practice areas specifically pertain to water contamination at Camp Lejeune and the associated diseases. Additionally, Dr. C.E.B. reviewed several medical studies, which served as the evidentiary predicate for the rendered opinion. However, the April 2013 VA examiner observed that the doctor used outdated findings. Specifically, in subsequent studies by the same entities, the findings cited by Dr. C.E.B. "did not show the continued elevation of risk, documenting that the statistically non-significant excess was in fact a random occurrence." For these reasons, the Board finds the April 2013 VA examiner's opinion is more probative than the Dr. C.E.B.'s September 2011 letter. Schoolman, 12 Vet. App. at 310-11; Evans, 12 Vet. App. at 31; Winsett, 11 Vet. App. at 424-25. To the extent that the Veteran asserts that her asthma, thyroid cancer, and acoustic neuroma are related to her in-service exposure to contaminated water, the Board finds that the matter of etiology is more suited to the realm of medical, rather than lay expertise. The precise determination of etiology is too complex for a layperson to proffer a competent opinion. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent opinions of such. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Veteran's assertions do not constitute competent etiological evidence in this case. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against service connection for asthma, thyroid cancer, and acoustic neuroma, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for asthma is denied. Service connection for thyroid cancer, claimed as Graves' disease and excessive fatigue, is denied. Service connection for brain tumor, diagnosed as acoustic neuroma, is denied. ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs