Citation Nr: 1752614	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  14-07 846	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for prostate cancer, to include as due to contaminated water exposure at Camp Lejeune.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

G.C., Associate Counsel



INTRODUCTION

The Veteran served on active duty from April 1973 to September 1973 and from December 1973 to September 1975.  

This matter is on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  

During the pendency of the appeal, the Veteran relocated from Kentucky to Virginia, and his claims file was transferred from the RO in Louisville, Kentucky to the RO in Roanoke, Virginia. Jurisdiction now lies with the Roanoke RO.

In an April 2014 VA Form 9 Appeal to the Board, the Veteran requested a videoconference hearing. However, the Veteran failed to appear for his hearing scheduled in October 2015 and has made no request to reschedule the hearing. Accordingly, the Board considers his request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2017).

Accordingly, this matter is now properly before the Board.


FINDINGS OF FACT

1. The Veteran is currently diagnosed with prostate cancer.

2. The Veteran served at Camp Lejeune, North Carolina, from December 1973 to September 1974 and from November 1974 to September 1975, and is presumed to have been exposed to contaminated water during service.

3. Symptoms of prostate cancer were not chronic in service, not continuous since service separation, and did not manifest to a compensable degree within one year of service separation.

4. The currently diagnosed prostate cancer was not incurred in service and is not etiologically related to service, including as due to exposure to contaminated water during service.


CONCLUSION OF LAW

Prostate cancer was not incurred in service and may not be presumed to have been incurred in service, including as due to exposure to contaminated water at Camp Lejeune, North Carolina. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 17.400 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Board notes nonetheless that VA has satisfied its duty to assist the Veteran in the development of the claim by fulfilling its duty to seek and assist in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file includes all available military personnel records, service treatment records, post-service private treatment records, a March 2013 VA medical opinion, and the Veteran's lay statements.

The Board also notes that VA has satisfied its duty to notify the Veteran in the form of a notice to the Veteran in February 2013, prior to adjudication in August 2013 denying service connection for prostate cancer to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. The February 2013 notice informed the Veteran of the evidence needed to support a service connection disability claim. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. Thus, the Board concludes that VA satisfied its duty to notify the Veteran. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

Furthermore, the Board acknowledges that the Veteran's service treatment records (STRs) have been sought for association with the claims file and review. However, after multiple attempts at obtaining the Veteran's STRs, a formal finding of unavailability was made and memorialized in a June 2008 memorandum of record.

As discussed below, the evidence shows that the Veteran's current prostate cancer was not caused by an injury or event in service, and is not otherwise related to service. The Veteran was afforded a VA examination in March 2013 which contains an etiological opinion supported by a rationale. The Board finds that the competent medical evidence of record is sufficient to decide the issue of service connection for prostate cancer, and no additional VA examinations are necessary. See 38 U.S.C. § 5103A (a)(2); 38 C.F.R. § 3.159 (d). In light of the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal.

Legal Criteria & Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease 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). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran has been diagnosed with prostate cancer (manifested by malignant tumors), which is listed as a "chronic disease" under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b).

Additionally, where a Veteran served ninety days or more of active service, and certain chronic diseases, such as prostate cancer (manifested by malignant tumors) become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 

Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. 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. pt. 3). This presumption may be rebutted by affirmative evidence to the contrary. Id. 

The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: Kidney cancer, Liver cancer, Non-Hodgkin's lymphoma, Adult leukemia, Multiple myeloma, Parkinson's disease, Aplastic anemia and other myelodysplastic syndromes, and Bladder cancer. Id. As such, prostate cancer is not a disease for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id. 

Notwithstanding the foregoing presumption provisions for exposure to contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042  (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

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 evidence 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Additional significant factors include whether the examining medical professional 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) (rejecting medical opinions because examiner failed to consider certain relevant information). The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).

When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49.

The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In this case, the Veteran contends that prostate cancer is the result of military service. Specifically, in the June 2012 claim for service connection, the Veteran asserts the current prostate cancer is the result of exposure to contaminated water while serving and living on base at Camp Lejeune in North Carolina.

Initially, the Board finds that the evidence reflects the Veteran is currently diagnosed with prostate cancer. An October 2010 operative report revealed a biopsy result showing the presence of prostate cancer. See October 2010 biopsy report. An October 2011 operative report shows the Veteran underwent a robotic prostatectomy in October 2011 as part of his treatment course for his diagnosed Adenocarcinoma.

Next, the Board finds that the Veteran served at Camp Lejeune from December 1973 to September 1974 and from November 1974 to September 1975, and is presumed to have been exposed to contaminated water during such service. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173. As stated above, prostate cancer is not on the presumptive list of diseases associated with exposure to contaminated water at Camp Lejeune; thus, a nexus linking the current prostate cancer and military service cannot be presumed under the law, regardless of the Veteran's exposure to contaminated water during service. Id. 

The Board also finds that the weight of the evidence is against a finding that symptoms of prostate cancer were "chronic" in service. Service treatment records have been found to be unavailable. However, in March 2010, VA received a single-page abstract of service and medical history with a record of treatment dated from April 1973 to September 1975. No mention is made of any diagnosis or treatment of any prostate condition, including prostate cancer. As such, the Veteran's service treatment records do not reflect any history or treatment for prostate cancer symptoms during service.  Furthermore, VA also received a letter from Lieutenant Colonel L., assistant director of personnel, to Judge G. W. W. dated in 2005, which also summarized the Veteran's service medical history. The letter also makes no mention of any diagnosis, treatment or complaints regarding the Veteran's prostate. Thus, the Board finds that symptoms of a prostate disorder were not chronic in service.

The Board next finds that the weight of the evidence demonstrates that symptoms of prostate cancer have not been continuous since service separation. As stated above, no treatments or complaints regarding the Veteran's prostate are of record during service. In fact, the record shows that the first diagnosis of prostate cancer was in October 2010, more than 35 years after his separation from service in September 1975. See form DD-214. The Veteran also has not asserted that symptoms of prostate cancer manifested soon after service separation, or even within a year therefrom. In fact, the Veteran first made a claim for entitlement to service connection for prostate cancer in June 2012.  For these reasons, the Board finds that symptoms of prostate cancer were not continuous after service separation.

As prostate cancer did not manifest within one year of service separation, the criteria for manifestation of prostate cancer in the form of malignant tumors to a compensable (i.e., at least 10 percent) degree within one year of service separation are not met. See 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2017).

On the question of direct nexus between the current prostate cancer and active service, the Board finds that the preponderance of the lay and medical evidence is against finding that the currently diagnosed prostate cancer is causally related to service. As discussed above, service treatment records do not reflect any complaints or treatment for symptoms of prostate cancer during service.

In support of the claim for service connection, the only evidence the Veteran submitted is a March 2013 statement indicating he was stationed in Camp Lejeune for 1 year and 9 months, lived in the barracks on base, and worked in the AMTRAK yard on the base.  He further claimed as part of his initial claim for service connection that his prostate cancer was caused by exposure to Camp Lejeune drinking water. There is no medical opinion of record offered by the Veteran addressing the question of a nexus between his exposure to Camp Lejeune contaminants, which has been conceded by VA, and his current prostate cancer. The only probative, competent opinion of record is that contained in a March 2013 VA examination. 

The evidence of record shows the presence of only Shedden element 1-that is, the Veteran is diagnosed with prostate cancer. However, other than the Veteran's lay assertions, there is no competent evidence that indicates his prostate cancer may be associated with active service. The Federal Circuit has held that, while medically competent evidence is not needed in every case to prove Shedden element 3, regarding nexus, there still must be more than claimant's conclusory assertion. In this regard, while a Veteran is competent to report treatment and symptoms of a disorder, he is not competent to diagnose or medically attribute any in-service symptom or incident to his current prostate cancer, which requires medical testing and expertise to diagnose. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, the Veteran is not competent to specify that his current prostate cancer is related to his active service, as such would constitute a medical conclusion, which he is not competent to make. See Jandreau, 492 F.3d at 1377 n.4; Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As these assertions are not competent, they are afforded no probative value. 

As mentioned, VA sought a medical opinion from a subject matter expert in claims involving exposure to contaminated water at Camp Lejeune, which was provided in March 2013. In that opinion, the VA examiner opined that it is less likely than not that the Veteran's current prostate cancer is caused by or otherwise etiologically related to exposure to contaminated water at Camp Lejeune. The March 2013 VA examiner indicated that he reviewed the Veteran's entire claims file. The examiner confirmed the Veteran's current diagnosis of adenocarcinoma of the prostate. The examiner reiterated the Veteran's contention that his prostate cancer was secondary to exposure to Camp Lejeune contaminated water. The VA examiner noted that prostate cancer is a common cancer in males, and has multiple risk factors including family history, obesity and aging. The examiner stated that there are no identified risk factors for prostate cancer from solvent exposure. Next, the VA examiner indicated he reviewed relevant medical literature and found no evidence to support a link between prostate cancer and exposure to the chemical found in the water supply at Camp Lejeune. The examiner further explained that the studies he reviewed looked at comparable exposures to the chemicals the Veteran was exposed to. The examiner also cited that the National Research Council report on Camp Lejeune found no evidence to support a link between Camp Lejeune contaminated water and prostate cancer. The examiner thus concluded that the Veteran's prostate cancer is not caused by or a result of exposure to contaminated water at Camp Lejeune. Indeed, the Board also notes that the examiner cited 12 pertinent scientific articles in the formulation of his opinion. 
 
In light of the March 2013 VA examiner's review of the Veteran's file, together with his review and discussion of the 12 cited scientific articles on the health effects of exposure to contaminated water at Camp Lejeune, the Board finds the March 2013 VA medical opinion highly probative. Importantly, as discussed above, there is no medical evidence of record that contradicts the VA examiner's findings regarding the likelihood that the Veteran's prostate cancer is etiologically linked to his service, including to his exposure to contaminated water at Camp Lejeune.

Upon review of the record, the Board concludes that the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current prostate cancer and active duty service. For these reasons, the Board finds that the preponderance of the lay and medical evidence of record is against the Veteran's claim of service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, on a direct, presumptive, or any other basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER


Entitlement to service connection for prostate cancer, to include as secondary to exposure to contaminated water at Camp Lejeune, is denied. 



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs