Citation Nr: 1752625	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  15-33 294	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for B-cell non-Hodgkin's lymphoma.  

2.  Entitlement to service connection for prostate cancer.  


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

J.A. Gelber, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1955 to September 1959 and from January 1963 to November 1965.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2017, the Veteran and his spouse testified before the undersigned at a Board hearing in Los Angeles, California.  A transcript of that hearing has been associated with the virtual file and reviewed.
	
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to service connection for prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The competent and probative evidence is at least in equipoise as to whether the Veteran's non-Hodgkin's lymphoma had its onset in or is otherwise related to his periods of active service.  


CONCLUSION OF LAW

The criteria for service connection for non-Hodgkin's lymphoma have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As the issue decided herein is being granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed.

II.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

If a veteran was exposed to contaminants in the water supply at United States Marine Corps Base Camp Lejeune during military service, the diseases set forth in 38 C.F.R. § 3.309(f?), including non-Hodgkin's lymphoma, will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(7).  The Veteran's military personnel records demonstrate service at Camp Lejeune from July 1958 to September 1959; thus he is presumed to have been exposed to contaminated water in service.  See 38 C.F.R. § 3.307(a)(7)(iii).  

The Veteran is competent to report symptoms and experiences observable by his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).  

After review of the record, the Board finds that the criteria for service connection for non-Hodgkin's lymphoma been met.  

The evidence demonstrates a diagnosis of non-Hodgkin's lymphoma.  See 08/17/2017 LCM, CAPRI.  Thus, the Board finds competent evidence of a current disability.  As previously indicated, the Veteran is presumed to have been exposed to contaminants in the Camp Lejeune water supply while in service.  See 38 C.F.R. § 3.307(a)(7)(iii).  As non-Hodgkin's lymphoma is one of the diseases set forth in 38 C.F.R. § 3.309(f?), it is presumed to be related to his periods of active service.  38 C.F.R. § 3.307(a)(7).  

The Board acknowledges the July 2014 VA examiner's opinion that the Veteran's non-Hodgkin's lymphoma is "less likely as not" due to exposure to contaminated water at Camp Lejeune; however, the Board finds that, based on consideration of all evidence in record, it does not support the conclusion that non-Hodgkin's lymphoma was not incurred in service so as to rebut the presumption set forth in 38 C.F.R. § 3.307(a)(7).  See 38 C.F.R. § 3.307(d).  Indeed, the standard applied by the examiner was only that of preponderance.  "Affirmative evidence to the contrary" would be required to rebut the presumption here.  Moreover, as a part of his rationale, the examiner relied on the fact that the duration of the Veteran's exposure was 14 months, less than the average 18-month tenure of Marines in the study.  However, there is no minimum duration of exposure required in the regulations and there was no persuasive discussion by the examiner as to why 14 months would have been an insufficient exposure period compared to the 18-month average.

Accordingly, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran's non-Hodgkin's lymphoma had its onset in or is otherwise related to his periods of service.  


ORDER

Service connection for non-Hodgkin's lymphoma is granted.  


REMAND

In July 2014, a VA examiner opined that the Veteran's prostate cancer is not due to exposure to contaminated water at Camp Lejeune.  In support of his opinion, he cited to the fact that the Veteran smoked half a pack of cigarettes daily until 1982 and cigars from that time on, and that the Veteran is obese.  The Veteran states that he quit smoking cigarettes in the mid-1970s and has never smoked cigars, and also denies being obese.  The Veteran's contentions are corroborated by a private medical opinion from his primary care physician received by VA in August 2017.  The primary care physician also opined that prostate cancer is due to exposure to contaminated water at Camp Lejeune.  Accordingly, the AOJ should obtain an addendum opinion that addresses the Veteran's lay contentions regarding factual inaccuracies in the July 2014 opinion, as well as the primary care physician's opinion.  

Accordingly, the case is REMANDED for the following actions:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Request an addendum opinion from the VA examiner who provided the July 2014 opinion, or another appropriate examiner, as to whether the Veteran's prostate cancer is due to exposure to the contaminants in the water at Camp Lejeune.  An in-person examination is not required unless deemed necessary by the examiner.  The examiner should be provided and review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  Is it at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer is due to exposure to the contaminants in the water at Camp Lejeune?  

The examiner should consider the lay contentions of the Veteran and medical opinion of his primary care physician; specifically, that the Veteran quit smoking in the mid-1970s and that he is 6 feet tall, large-boned and has not weighed more than 210 pounds per his family physician.  The examiner should also discuss any medical literature cited to or discussed by the primary care physician, as well as any relevant medical studies published since the July 2014 opinion.  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

2.  Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board, if otherwise in order.  

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 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. §§ 5109B, 7112 (2012).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs