Citation Nr: 1753967 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 15-25 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bladder cancer. 2. Entitlement to service connection for bladder cancer, to include as due to contaminated water exposure at Camp Lejeune, for accrued benefits purposes. 3. Entitlement to DIC benefits based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1954 to February 1957, and again from December 1959 to October 1977 with service in the Republic of Vietnam. He is the recipient of a Silver Star. Regrettably, the Veteran died in May 2012. The appellant is his surviving spouse. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a June 2013 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Louisville, Kentucky. By way of background, although the Veteran's claim of entitlement to service connection for bladder cancer was previously denied in a September 2006 rating decision, the Board finds that new and material evidence has been submitted sufficient to reopen the claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a September 2006 rating decision, the RO denied the Veteran's claim of entitlement to service connection for bladder cancer. The Veteran was notified of his appellate rights, but did not file a Notice of Disagreement within one year of notice of the rating decision, or submit new and material evidence within the one year period thereafter. 2. The evidence received since the September 2006 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate entitlement to service connection for bladder cancer. 3. The Veteran has verified periods of active service resulting in his presumed exposure to contaminated water exposure at Camp Lejeune. 4. The Veteran's diagnosed bladder cancer is presumed related to his contaminated water exposure at Camp Lejeune. 5. The Veteran died in May 2012 from bladder cancer. 6. The cause of the Veteran's death is attributable to his active service. CONCLUSIONS OF LAW 1 September 2006 rating decision denying the Veteran service connection for bladder cancer is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103 (2005). 2. New and material evidence has been received sufficient to reopen the claim for service connection for bladder cancer. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a) (2016). 3. The Veteran's bladder cancer is presumed to be related to contaminated water exposure resulting from active service at Camp Lejeune. 38 U.S.C.A. §§ 1110, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(f) (2017). 4. The criteria for entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 have been met. 38 U.S.C.A. §§ 1310, 1318, 5103, 5103(a), 5110 (West 2014); 38 C.F.R. §§ 3.22, 3.312, 3.340, 3.341, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for bladder cancer and entitlement to DIC benefits. As this represents a complete grant of the benefits sought on appeal with respect to these claims, no further notice or assistance is required under the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2017). I. 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 service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relation i.e. a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Under 38 C.F.R. § 3.307(a)(7): certain diseases have been associated with exposure to contaminants in the water supply at Camp Lejeune. (i) For the purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. (ii) The diseases listed in 38 C.F.R. § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. (iii) A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. The last date on which such a Veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. (iv) Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. 101 (24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in 38 C.F.R. §3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. Under 38 C.F.R. § 3.309(f) disease associated with exposure to contaminants in the water supply at Camp Lejeune. If a Veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of §3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of 38 C.F.R. § 3.307(d): (1) Kidney cancer. (2) Liver cancer. (3) Non-Hodgkin's lymphoma. (4) Adult leukemia. (5) Multiple myeloma. (6) Parkinson's disease. (7) Aplastic anemia and other myelodysplastic syndromes. (8) Bladder cancer. Preliminarily the Board finds that the Veteran had exposure to contaminated water at Camp Lejeune during his active service. Records indicate that the Veteran was stationed at Camp Lejeune for at least the 30 days requirement under 38 C.F.R. § 3.307(a)(7)(iii). Thus, exposure to the contaminants in the water supply systems at Camp Lejeune is presumed. Further, the Veteran was diagnosed with bladder cancer, which is listed under section 3.309(f), diseases subject to presumptive diagnosis, as evidenced through the Veteran's treatment records and death certificate. See 38 C.F.R. § 3.307 (a)(7)(iii); and 3.309 (f). However, in order for the presumptive provision of section 3.307(a)(7) to apply the Veteran must meet the requirement that his disability be rated at the 10 percent level. 38 C.F.R. § 3.307 (a)(7)(ii) (The diseases listed in 38 C.F.R. §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service). Addressing the 10 percent requirement, the Board notes that bladder cancer is rated by using the diagnostic code 7528 - governing the evaluations for malignant neoplasms of the genitourinary system. This provision is under 38 C.F.R. § 4.115 schedule of ratings of the genitourinary system - dysfunctions. See 38 C.F.R. § 4.115 Diagnostic Code (DC) 7528 (2017). Under DC 7528, a 100 percent rating is warranted for malignant neoplasms of the genitourinary system. Id. Without question, the Veteran was diagnosed and treated for bladder cancer, warranting a 100 percent rating. Thus, the 10 percent requirement is satisfied. The evidence is overwhelming that the Veteran developed bladder cancer, resulting in his death. Nonetheless, a June 2013 VA examiner has offered an alternate etiology, i.e., the Veteran's history of smoking as a more likely cause of the development of his bladder cancer. However, the VA examiner did not discuss the medically known or theoretical causes of bladder cancer, nor did the examiner describe how bladder cancer generally presents or develops in most cases. Rather, the VA examiner focused solely on the link between bladder cancer and smoking. The VA examiner failed to address whether smoking was, in fact, the cause of the Veteran's bladder cancer. Rather, the VA examiner states that it is "more likely," than the Camp Lejeune exposure, to have caused the bladder cancer. Further, the VA examiner failed to address whether the bladder cancer was not, or could not have been caused by the Veteran's Camp Lejeune exposure. Thus, the Board finds that the lack of discussion and rationale of the June 2013 VA examination inadequate to rebut the presumption of service connection as prescribed by 38 C.F.R. § 3.307. Therefore, the Board concedes that the Veteran's bladder cancer is the result of exposure to contaminants in the water, while he was based at Camp Lejeune. II. DIC benefits In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributes substantially or materially to death, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) Here, without question, the Veteran's cause of death was his now service connected bladder cancer. As stated above, the Veteran died in May 2012, as due to metastatic bladder cancer. See Death Certificate dated May 22, 2012. The Veteran's bladder cancer is listed as the immediate, and only cause of his death. Id. Further, as stated previously, the Board grants entitlement to service connection for the Veteran's bladder cancer as due to contaminated water exposure at Camp Lejeune. Thus, the requirements under 38 C.F.R. § 3.312 have been satisfied. ORDER 1. Entitlement to service connection for bladder cancer is granted. 2. DIC benefits for the cause of the Veteran's death is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs