Citation Nr: 1740586 Decision Date: 09/19/17 Archive Date: 10/02/17 DOCKET NO. 15-24 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bladder cancer as the result of exposure to contaminated water at Camp Lejeune. 2. Entitlement to service connection for kidney cancer as the result of exposure to contaminated water at Camp Lejeune. 3. Entitlement to service connection for prostate cancer as the result of exposure to contaminated water at Camp Lejeune. 4. Entitlement to service connection for lung cancer as the result of exposure to contaminated water at Camp Lejeune. 5. Entitlement to service connection for lymph node removal with edema. 6. Entitlement to service connection for pelvic mass removal. 7. Entitlement to service connection for erectile dysfunction, to include as secondary to bladder cancer. WITNESS AT HEARING ON APPEAL The Veteran ORDER The issues of entitlement to service connection for bladder cancer, kidney cancer and lymph node removal are granted. The issues of entitlement to service connection for lung cancer and prostate cancer are denied. FINDINGS OF FACT 1. The Veteran served at United States Marine Corps Base Camp Lejeune from February 6, 1969 through March 12, 1969, and is presumed to have been exposed to contaminants in the water supply at such base. 2. The Veteran has current diagnoses of bladder and kidney cancer, which are on the list of disabilities presumed to be related to contaminated water at Camp Lejeune. 3. The Veteran does not have a diagnosis of prostate cancer. 4. The Veteran's lung cancer is not etiologically related to his active duty service, to include due to exposure to contaminated water at Camp Lejeune. 5. The Veteran's bilateral pelvic lymph nodes were removed secondary to treatment for his bladder cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer have been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016); Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. §§ 3.307, 3.309). 2. The criteria for service connection for kidney cancer have been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016); Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. §§ 3.307, 3.309). 3. The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 4. The criteria for service connection for lung cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 5. The criteria for service connection for lymph node removal have been met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 through July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in a July 2017 Travel Board Hearing. A transcript is of record. The issues of entitlement to service connection for chronic lymphocytic leukemia (CLL) and partial colon removal have been raised by the record in a January 2016 statement. Effective on and after March 24, 2015, VA updated the regulations concerning the filing of claims. 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). In part, the Department replaced the informal/formal claims process with a standardized and more formal process. See 79 Fed. Reg. at 57,663-64; see also 38 C.F.R. § 3.155 (2015). As a result of the rulemaking, a complete claim on an application form is required for all types of claims. 38 C.F.R. § 3.155(d). A claimant who wants to file for benefits under laws administered by VA but does not communicate that desire on a prescribed VA Form (on paper or electronically) is not considered to have filed a claim. 38 C.F.R. § 3.150(a). Instead, that person is considered to have requested an application form. Id. It does not appear the Agency of Original Jurisdiction (AOJ) responded to this statement, and it is referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a pelvic mass removal and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. I. Entitlement to service connection for prostate cancer The Veteran claims he is entitled to service connection for prostate cancer due to exposure to contaminated water at Camp Lejeune. VA treatment records do not indicate the Veteran was ever diagnosed with prostate cancer. As will be explained further below, the Veteran was diagnosed with bladder cancer, which manifested as several tumors in his bladder and one large tumor in his prostatic urethra. As a result, his bladder, prostate, and half his urethra were removed in July 2011. It must be emphasized that the tumor in the Veteran's prostatic urethra was a manifestation of his bladder cancer, not a separate diagnosis of prostate cancer. Post-operative biopsies taken in July 2011 showed no malignancy of the prostate tissue. There is no evidence the Veteran has been diagnosed with prostate cancer. As there is no evidence of a current disability, there is no basis on which the claim for service connection may be granted. Brammer v. Derwinski, 3 Vet. App. (1992). It is therefore unnecessary to address any other element of service connection. Accordingly, the claim for service connection for prostate cancer is denied. II. Entitlement to service connection for bladder, kidney, and lung cancer The Veteran asserts that his bladder, kidney, and lung cancer are due to exposure to contaminated water at Camp Lejeune. VA issued Training Letter 10-03 in April 2010 in which it acknowledged that individuals stationed at Camp Lejeune from 1957 to 1987 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. The National Academy of Sciences' National Research Council (NRC) and the ATSDR undertook 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 June 2009 report, "Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects," 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 found that no disease 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, which included 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 has recently established a presumption of service connection for certain diseases for veterans, former reservists, and former National Guard members who were exposed to contaminants in the water supply while serving at U.S. Marine Corps Base Camp Lejeune, North Carolina, for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987. See 38 U.S.C.A. §§ 1101, 1112, 1137; Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. §§ 3.307, 3.309). Specifically, effective March 14, 2017, 38 C.F.R. § 3.309(f) will be amended to provide a presumption of service connection for kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer, which have become manifest to a degree of 10 percent or more at any time after service if the Veteran was stationed at Camp Lejeune between August 1, 1953 and December 31, 1987. The regulation applies to all claims pending before VA on and after March 14, 2017. i. Bladder and Kidney Cancer Upon review of the record, the Board finds that presumptive service connection for bladder and kidney cancer based on exposure to contaminated water at Camp Lejeune is warranted. In this regard, the Veteran's military personnel records show that he was stationed at Camp Lejeune from February 6, 1969 through March 12, 1969. Furthermore, the medical evidence of record demonstrates diagnoses of bladder and kidney cancer. Specifically, a CT urogram revealed a cystic structure in the Veteran's right kidney, and a biopsy conducted in December 2010 indicated he had urothelial carcinoma. The Veteran underwent a right nephroureterectomy in February 2011. The Veteran presented with continued complaints of hematuria following his nephroureterectomy and was scheduled for a diagnostic cystoscopy in May 2011, which revealed several tumors. In June 2011, he underwent a transuretheral resection of a tumor found in his bladder, which demonstrated high-grade Ta in the bladder, multiple tumors, and high-grade T1 tumor in the prostatic urethra/bladder neck. He was diagnosed with urothelial transitional cell carcinoma. The Veteran had a radical cystoprostatectomy - the complete removal of his bladder and prostate - in July 2011. In November 2014, the Veteran was afforded a VA examination to evaluate whether his bladder and kidney cancer were etiologically linked to his exposure to contaminated water at Camp Lejeune. The examiner opined it was less likely than not that the Veteran's bladder and kidney cancer were related to exposure to contaminated water at Camp Lejeune. In support of this opinion, the examiner noted that the Veteran served approximately 38 days at Camp Lejeune, far less than the 18 months most Veterans served, he was a heavy smoker, and was obese. With regard to the Veteran's bladder cancer, the examiner noted most cases of bladder cancer occur in people over the age of 55, and cigarette smoke is the greatest risk factor for development of bladder cancer, with approximately 50 percent of bladder cancer cases attributed to smoking. Additionally, he had over 20 years of occupational exposure to chemicals shown to lead to bladder cancer. A review of the current medical literature found no association between the contaminated water at Camp Lejeune and bladder cancer. As for the Veteran's kidney cancer, the examiner noted he had several risk factors including smoking, hypertension, and obesity, with tobacco use being the best recognized risk for kidney cancer and obesity being the second. The examiner reviewed pertinent medical literature, with showed only limited/suggestive association between TCE and PCE and kidney cancer. Entitlement to service connection based on presumptive illnesses can be rebutted with the presentation of "affirmative evidence to the contrary." See 38 C.F.R. 3.309(d). "Affirmative evidence to the contrary" does not require a conclusive showing, but a showing that would, in sound medical reasoning and the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. In this case, although incredibly detailed, the November 2014 VA opinion does not meet the standard to rebut the presumption. As it was provided in 2014, the opinion was based on out-of-date research, rather than the scientific research that was considered in drafting the regulation in 2017. Although the examiner noted the Veteran had several risk factors for both bladder and kidney cancer, much of the opinion was spent discussing medical research that found limited or no link between bladder and kidney cancer and the contaminants found at Camp Lejeune. As the research suggested that the contaminants did not increase the risk of bladder or kidney cancer, the examiner opined it was less likely than not that the Veteran's cancers were due to his exposure to contaminated water. However, subsequent research used to draft the regulation came to the opposite conclusion. As such, the negative nexus opinion of the VA examiner is insufficient to rebut the presumption created by the amended regulation. Consequently, as the Veteran was stationed at Camp Lejeune during the requisite time period, and is therefore presumed to have been exposed to contaminants in the water supply, and has a current diagnosis of bladder and kidney cancer manifested to a compensable degree, presumptive service connection for such disease is warranted. The Board notes that the Veteran's prostate was removed at the same time as his bladder in order to remove the tumor in his prostatic urethra. The RO will consider this fact when rating the Veteran's now service-connected bladder cancer. ii. Lung Cancer Although lung cancer was included in the list of limited/suggestive evidence of an association with TCE or PCE, squamous cell carcinoma of the lungs is not on the list of disabilities associated with exposure to contaminated water at Camp Lejeune. As such, the Veteran's lung cancer is not entitled to the presumption based on exposure to contaminated water. However, the Veteran can still establish entitlement to service connection on a direct basis. In June 2013, a CT scan revealed a nodule on the upper lobe of the Veteran's right lung. A biopsy taken in March 2014 indicated malignancy. His preliminary diagnosis was primary squamous cell carcinoma of the lung; however, the diagnosis could not be confirmed because the biopsy sample was too small. VA treatment records from April 2014 note the Veteran's lung cancer could be a metastatic lesion from his bladder cancer, although the lesion's histology suggested it was primary lung cancer. The Veteran underwent a right upper lobectomy in July 2014. His post-operative diagnosis was squamous cell carcinoma. The Veteran was afforded a VA examination in November 2014. The examiner conducted an extensive review of the Veteran's medical records, which indicated a smoking history of one and a half packs per day until 1998, as well as pertinent medical literature. Noted risk factors for lung cancer were smoking and second hand smoke. The examiner reviewed the 2008 NRC report, which showed limited evidence of an association between exposures to contaminated water and lung cancer and there was inadequate or insufficient evidence to determine if an association existed between TCE and lung cancer. Further, there was no reported association between vinyl chloride or benzene and lung cancer. The examiner reviewed several more studies that found only limited or no association between exposure to TCE and PERC and the development of lung cancer. The examiner concluded that exposure to smoke was the greatest factor for the development of lung cancer and several documented studies found no increase in risk of developing lung cancer from the chemicals found at Camp Lejeune. As such, the examiner opined it was less likely than not that the Veteran's squamous cell lung cancer was caused by or a result of exposure to contaminated water at Camp Lejeune. The Board finds this opinion extremely probative because after an extensive review of the claims file and relevant medical literature, the examiner clearly explained why it was more likely than not that his lung cancer was the result of his long smoking history. In May 2016, the Veteran underwent an evaluation by a VA geneticist to determine whether he had a genetic predisposition to cancer. The geneticist determined the types of cancer the Veteran was currently diagnosed with were not characteristic of a known cancer syndrome. It was also noted that all of his malignancies were included in the list of 15 conditions listed on the government website with suggestive correlation between development of those cancers and exposure to contaminated water at Camp Lejeune. The geneticist opined environmental exposures could be the explanation for the Veteran's multiple cancers. However, this opinion is not probative evidence of a nexus between the Veteran's lung cancer and his exposure to contaminated water at Camp Lejeune. The opinion also does not address how "environmental exposures" other than exposure to contaminated water at Camp Lejeune, such as smoking, could contribute to the development of his several cancers. Further, the opinion does not opine as to the etiology of any single cancer, but broadly states "his past exposure could be the explanation for his history." The Court of Appeals for Veterans Claims (Court) has determined that statements expressed with the term "could have" are too speculative to establish a causal relationship. See Bloom v. West, 12 Vet. App. 185, 186-87 (1999) ("By using the term 'could,' without supporting clinical data or other rationale, [the expert's] opinion simply is too speculative to provide the degree of certainty for medical nexus evidence."). As noted above, VA physicians believed the Veteran's lung cancer may be a metastatic lesion from his bladder cancer. However, his post-operative diagnosis was primary squamous cell carcinoma, a cancer unrelated to the transitional cell carcinoma of his bladder. There is no indication from the medical record that the Veteran has widespread metastatic cancer linked to his bladder cancer. The Veteran submitted several articles in support of his claim. However, the Board does not find the cited findings probative as they neither address the Veteran's specific facts, nor provide medical evidence of a link between the Veteran's exposure to contaminated water at Camp Lejeune and his lung cancer. In fact, none of the articles mention lung cancer as a possible side effect of exposure to the contaminants at Camp Lejeune. The Veteran's lay statements and testimony have been considered in this decision. However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis or etiology of a specific disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the claim for entitlement to service connection for the Veteran's lung cancer is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Entitlement to service connection for lymph node removal. The Veteran contends he had several lymph nodes removed due to treatment for his various cancers. VA treatment records note the Veteran underwent surgery to treat his bladder cancer in July 2011. During the surgery, his bilateral pelvic lymph nodes were removed for pathologic review. As the Board is granting entitlement to service connection for bladder cancer in this decision, and the Veteran's lymph nodes were removed during the treatment for that cancer, service connection for lymph node removal as secondary to bladder cancer is granted. REMAND The Veteran asserts that he had a mass on the left side of his pelvis removed that is secondary to his bladder cancer. In August 2011, following surgery to treat his bladder cancer, a CT scan showed fluid buildup in his pelvis and it was diagnosed as a probable lymphocele. A follow-up MRI in September 2012 showed the fluid buildup had resolved. However, in a June 2013 MRI, a new mass was found in his pelvis and it was suspected to be a recurrence of his bladder cancer. Biopsies taken in July and September 2013 noted the growth was benign fibrous tissue. However, clinical records from May 2014 note the etiology of the mass in the Veteran's pelvis remained unknown, and the lesion's clinical behavior was suggestive of a recurrent tumor, rather than the fibrous tissue noted in the biopsies. It was noted the fibrous tissue found in the biopsies could be attributed to the sampling missing the tumor. It was further recorded that the mass could either be a recurrent malignancy or merely a reactive process, but additional biopsies needed to be conducted. In a January 2016 statement, the Veteran reported the mass in his pelvis had been removed. Therefore, as the Veteran's most recent VA treatment records contain potentially pertinent information regarding the claims on appeal, they will need to be obtained and associated with the claims file. Further, as there is evidence the Veteran's pelvic mass may be related to his now service-connected bladder cancer, a VA opinion is warranted. The Veteran claims his erectile dysfunction is secondary to his bladder cancer. A medical note from June 2011, just prior to his bladder cancer surgery, he was diagnosed with low testosterone, which correlated to his lack of libido. VA treatment records dated October 2011 note the Veteran had penile swelling, and in December 2011 he reported decreased libido and difficulty with erections following his July 2011 surgery. As the Board has granted service connection for bladder cancer and lymph node removal, the Board finds a VA examination is warranted to address whether the Veteran's erectile dysfunction is caused or aggravated by his service-connected disabilities. Accordingly, the case is REMANDED for the following action: (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 and associate with the claims file all relevant VA treatment records from the Los Angeles VAMC and all associated outpatient clinics from July 2014 through the present. 2. Only after the above development is completed, to the extent possible, the AOJ should request an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed pelvic mass removal was caused or aggravated by his now service-connected bladder or kidney cancer. 3. Then, schedule the Veteran with for an examination for his erectile dysfunction. The examiner is requested to determine whether it is at least as likely as not (a 50 percent probability or greater) that any current diagnosed erectile dysfunction is caused or aggravated by the Veteran's bladder cancer, to include the removal of his prostate and urethra. With regard to aggravation, the Board notes that the term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve and return to the previous baseline level of disability. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above and any other development deemed necessary, readjudicate the remanded issues. If the benefits sought on appeal are not granted, the Veteran should be provided a supplemental statement of the case and an appropriate time period for response. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel Department of Veterans Affairs