Citation Nr: 1754742	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-20 635	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for a left shoulder disability.

2.  Entitlement to service connection for colon cancer, claimed as due to exposure to contaminated water at Camp Lejeune.

3.  Entitlement to service connection for a lump located on the left side of the head.

4.  Entitlement to service connection for a lump located on the middle breast.

5.  Entitlement to an initial compensable evaluation for boxer's fracture, right hand.

6. Entitlement to a single 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities.


REPRESENTATION

Veteran represented by:	James J. Perciavalle, Accredited Agent
ATTORNEY FOR THE BOARD

J. T. Brant, Counsel


INTRODUCTION

The Veteran served on active duty from May 1971 to February 1974.

This appeal comes before the Board of Veterans' Appeals (Board) from November 2009 and December 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  The November 2009 rating decision denied service connection for a left shoulder disability.  The December 2014 rating decision granted service connection for boxer's fracture, right hand, and assigned a noncompensable rating effective October 24, 2013.  The December 2014 rating decision also denied entitlement to service connection for colon cancer and lumps located on the left side of the head and breast, and entitlement to a single 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities.

The issues of entitlement to service connection for a left shoulder disability; entitlement to an initial compensable evaluation for boxer's fracture, right hand;  and entitlement to a single 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Any current colon cancer disability was not manifest in service or to a degree of 10 percent within one year of separation and is unrelated to service, including exposure to contaminated water at Camp Lejeune.

2.  The preponderance of the evidence fails to establish that the diagnosed epidermal inclusion cyst on the left parietal scalp is etiologically related to service.

3.  The preponderance of the evidence of record is against a finding that the Veteran has a disability manifested by a lump on the middle breast.


CONCLUSIONS OF LAW

1.  The criteria for service connection for colon cancer are not met.  38 U.S.C. § 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2.  The criteria for service connection for an epidermal inclusion cyst on the left parietal scalp, claimed as lump on the left side of head, have not been met.  38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

3. The criteria for service connection for a lump on the middle breast are not met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

VA's duty to notify was satisfied by letters dated in September 2009 and January 2014.  See 38 U.S.C. §§ 5102, 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Neither the Veteran nor his representative has 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 duty to assist argument).

II.  Service Connection

A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C. § 1110.  

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

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.  38 C.F.R. § 3.303(b).  An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge.  The U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Additionally, certain chronic diseases, including cancer, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

Service connection may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).

Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to provide presumptive service connection for eight diseases associated with contaminants present in the water supply at Camp Lejeune from August 1, 1953, to December 31, 1987.  This amendment applies to claims received by VA on or after March 14, 2017, and claims pending before VA on that date, as here.  The eight presumptive diseases include adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease.  Colon cancer is not among the diseases on this list. 

In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.



Colon Cancer

The Veteran is seeking entitlement to service connection for colon cancer, claimed as due to exposure to contaminated water at Camp Lejeune.  Exposure to contaminated water at Camp Lejeune is conceded.

Service treatment records are silent for reference to colon cancer.  Colon cancer was found in 2003. 

In April 2014, a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project reviewed the relevant evidence of record and provided an opinion on whether the Veteran's colon cancer was a result of his exposure to contaminated water at Camp Lejeune.  The examiner noted that the Veteran had been exposed to contaminated water at Camp Lejeune in service for a period of approximately 473 days, and that in 2003, at the age of 53, he was diagnosed with adenocarcinoma of the sigmoid poly with lymphatic invasion.  The examiner noted that the Veteran was status post sigmoid resection for adenocarcinoma.  The examiner found that the Veteran's colon cancer was less likely as not caused by or a result of exposure to contaminated water at Camp Lejeune.  In support of this conclusion, he discussed the known risk factors for developing colon cancer and data from environmental and occupational exposure studies.   

Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's residuals of colon cancer.  

The preponderance of the evidence is against a finding that colon cancer was manifest in service or within one year of separation or that there has been continuity of symptomatology since service.  To the contrary, it was first manifest in 2003, about 30 years post-service. 

The preponderance of the evidence also is against a finding that any current residuals of colon cancer are related to any incident of service, to include exposure to the contaminated water at Camp Lejeune.  The most probative evidence on this matter is from the April 2014 subject matter expert, as that examiner noted a number of variables and medical facts associated with the Veteran's development of colon cancer and concluded, in light of them, that his colon cancer was less likely than not related to the contaminated water at Camp Lejeune.  Among the reasons the examiner cited for this conclusion included the Veteran's risk factors for developing this common cancer such as his male gender, his age, and being overweight.  Additionally, the examiner indicated that the Categorization of Health Outcomes reviewed in relation to TCE, PCE or solvent mixtures from the National Academies report on "Contaminated Water at Camp Lejeune Assessing Potential Health Effects" listed colon cancer has having "inadequate/insufficient evidence to determine whether an association exists."  The examiner noted that colon cancer was not listed in the categories of a) sufficient evidence of a causal relationship, b) sufficient evidence for an association, or even c) limited suggestive evidence of an association.  

The examiner noted further that a review of environmental and occupational exposure studies did not elicit a correlation between the chemicals contained in the contaminated water source at Camp Lejeune and the Veteran's colon cancer that would support a link between the exposures to the contaminated water.  In this regard, the examiner found that an assessment of a California community exposed to contaminated water did not show either a generalized cancer excess or a specific increase in observed cases of colon cancer.  In addition, he noted that numerous occupational studies of workers exposed to industrial levels of these chemicals (generally considered to be exposed to higher levels of these chemicals than are people who drink contaminated water and to have exposure for significantly longer than this Veteran's time at Camp Lejeune) have not proven a causal relationship or shown sufficient evidence of an association between these chemicals and the development of colon cancer.  The examiner found that statistical power needed to make such an association was lacking.  The examiner therefore found that in the absence of a meta-analysis showing a causal association between exposure to the chemical contaminants (especially at these levels) and the development of colon cancer, the Veteran's contention was not supported.  

In summary, the weight of the evidence does not support a finding that the Veteran's colon cancer is etiologically related to a disease, injury, or event in service, to include exposure to contaminated water at Camp Lejeune.  As a result, service connection is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  As the preponderance of the evidence is against the claim of service connection for colon cancer, that doctrine is not applicable.  38 U.S.C.A. § 5107(b).  

Lumps on the Left Side of Head and Middle Breast

The Veteran is seeking entitlement to service connection for lumps on the left side of the head and middle breast.  The Veteran has not articulated why he believes these claimed disabilities are related to his service.

The service treatment records are silent for complaints or findings regarding lumps or cysts on the left side of the head and middle breast.  On separation from service, the Veteran's skin was evaluated as normal.

VA treatment records reveal that in February 2015, the Veteran complained of a cyst on the left side of his scalp for many years.  He noted that it would burst open off and on.  Likewise, in a VA treatment record dated in March 2015, the Veteran complained of a cyst on the left temporal scalp, which had been present for many years.  He noted that it had grown in size over the years.  The assessment was pilar cyst, left temporal scalp.  An April 2015 VA treatment record diagnosed a neoplasm of uncertain behavior on the left parietal scalp.  The Veteran requested excision.  A May 2015 VA treatment record noted that the Veteran was status post excision of epidermal inclusion cyst (EIC) left parietal scalp with benign pathology.  The treatment records do not contain any notations regarding a lump or cyst on the middle breast.

With respect to the claim for service connection for a lump on the left side of the head, the record reveals a diagnosis of epidermal inclusion cyst on the left parietal scalp with benign pathology.  See May 2015 VA treatment record.  Accordingly, the first Shedden element of service connection is satisfied.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  
The Board finds that the weight of the evidence is against a finding that the Veteran's epidermal inclusion cyst on the left parietal scalp is etiologically related to the Veteran's active duty service.  

The Veteran had no in-service evidence of any cysts or lumps, to include on the left side of his head.  The claims file otherwise does not include evidence that a competent medical professional has linked the Veteran's epidermal inclusion cyst on the left parietal scalp with benign pathology to his service.  The Board acknowledges that in 2015, the Veteran complained of a cyst on his left scalp which had been present for many years.  However, he did not specifically indicate that this cyst had been present in service.  Moreover, he has not offered any explanation as to why he believes his cyst is related to his service.

As the preponderance of the evidence does not show that the Veteran's epidermal inclusion cyst on the left parietal scalp was incurred in service, or a medical nexus between the presently diagnosed epidermal inclusion cyst on the left parietal scalp and the Veteran's service, service connection cannot be granted on a direct basis.

With respect to the claim for service connection for a lump on the middle breast,  the Veteran has not established a diagnosis pertaining to a lump on the middle breast at any time during the course of the appeal.  The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted.  38 U.S.C.A. § 1110; see also Brammer, 3 Vet. App. at 225.  

Accordingly, the claims are denied.  There is no doubt to resolve as the evidence is not roughly in equipoise.  38 U.S.C.A. § 5107; Gilbert, supra.


ORDER

Entitlement to service connection for colon cancer is denied.

Entitlement to service connection for a lump on the left side of the head is denied.
Entitlement to service connection for a lump on the middle breast is denied.


REMAND

With respect to the Veteran's claim for entitlement to service connection for a left shoulder disability, the Veteran contends that he injured his left shoulder during basic training after a drill instructor pulled a sling around his left arm extra hard.  The Veteran contends that over the years, he has had problems with tingling, numbness, and sharp pains in his left arm/shoulder, and he has self-treated with over-the-counter medication since discharge.  See e.g., July 2012 appeal on a VA Form 9 and September 2013 buddy statement.  In support of the claim, the Veteran's representative cited to a Mayo Clinic article, which indicated that a strain or tear left untreated could lead to chronic tendon degeneration, to include degenerative joint disease.  See October 2013 brief from the Veteran's representative.

The Veteran's service treatment records reveal that in July 1971, the Veteran  complained of left arm pain with an inability to grip objects.  On the Veteran's February 1974 separation examination, the Veteran's upper extremities were evaluated as normal.  He noted a history of "sling paralysis" of the left arm, which had recovered.  

The first post-service evidence of treatment for the left shoulder was in 2009.  In a March 2009 VA treatment record, the Veteran complained of left shoulder/elbow arm discomfort.  He stated the pain started several months back, but was starting to get worse.  He noted that the only injury to his left arm he remembered was during boot camp.  Additionally, in a July 2009 VA treatment record, the Veteran complained of left shoulder and elbow pain, which he stated began in December.  He mentioned "sling paralysis" of the left arm 30 years ago, without any other specific injury.  He described intermittent tingling once per year.  The assessment was left shoulder impingement and left medial epicondylitis.

In March 2012, a VA examiner found that the Veteran's left shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner explained that the injury occurred in 1971, and the Veteran began to seek medical attention in 2009.  The examiner noted that the Veteran was in an occupation (barber) that was conducive to shoulder complaints.  The examiner noted that x-ray imaging demonstrated mild degenerative changes and the Veteran did not have any left shoulder complaints at the time of discharge.

In light of the additional evidence added to the file after the March 2012 opinion suggesting continuity of symptomatology, the Board finds that an addendum opinion is necessary.

With respect to the Veteran's claim for an initial compensable evaluation for boxer's fracture, right hand, the Board observes that the Veteran was last afforded a VA examination in January 2014, and evidence recently added to the claims file indicates that his symptomatology may have worsened.  In particular, in a VA treatment record dated in May 2015, the Veteran reported that recently, the pain in his right hand was worse than before.  The evaluation revealed worsening symptomatology, such as tenderness to palpation and limited range of motion.  In light of the evidence suggesting that the Veteran's service-connected boxer's fracture, right hand, may have worsened, the Board finds that under the duty to assist, a VA examination is necessary to clarify the current severity of the Veteran's boxer's fracture, right hand.

The Board notes that the claim for entitlement to a single 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities is inextricably intertwined with the development for the claims for entitlement to service connection for a left shoulder disability and  entitlement to an initial compensable evaluation for boxer's fracture, right hand.  If the service connection or initial rating claims are granted, this would directly impact the adjudication of the claim.  See 38 C.F.R. § 3.324 (2017).  For this reason, consideration is deferred pending adjudication of the initial rating claim on appeal.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a Veteran's claim for the second issue).

While on remand, updated treatment records should be obtained.

Accordingly, the case is REMANDED for the following action:

1.   Contact the Veteran, and, with his assistance, identify 
any outstanding records of pertinent medical treatment from VA or private health care providers.  Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c).  If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).

2.   Then, return the claims file to the examiner who 
	provided the March 2012 opinion regarding the 
	Veteran's claimed left shoulder disability to obtain an 
	addendum opinion.  If the March 2012 examiner is 
	not available, the claims file should be reviewed by
   another examiner.  The claims file, including a copy 
   of this remand, should be reviewed by the examiner.  
   If, and only if, determined necessary by the VA 
   examiner, the Veteran should be scheduled for another 
   VA examination.
   
   The examiner is asked to:
   
(a) Provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's diagnosed left shoulder disability (degenerative joint disease with impingement and epicondylitis) is etiologically related to his active duty service, to include the injury to his left arm in 1971.

      In rendering the requested opinion, the examiner 
      should discuss:
      
* the 1971 injury to the left arm during service; 

*  the March 2009 VA treatment record in which the Veteran complained of worsening left shoulder/elbow arm discomfort starting several months back and noted that the only injury to his left arm he remembered was during boot camp;

*  the July 2009 VA treatment record in which the Veteran complained of left shoulder and elbow pain beginning in December, mentioned "sling paralysis" of the left arm 30 years ago without any other specific injury, and described intermittent tingling once per year;

* the Veteran's July 2012 report of tingling, 
numbness, and pain in the left arm/shoulder treated by over-the-counter medications since service; 

* the September 2013 buddy statement indicating the Veteran complained of left arm/shoulder numbness and tingling since service; and

* the Mayo Clinic article referenced in the October 2013 brief, indicating that a 
strain or tear left untreated could lead to chronic tendon degeneration, to include degenerative joint disease.

The examiner should set forth the complete rationale for all opinions expressed and conclusions reached.  

If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered.

4.  After the development in #1 has been completed, schedule the Veteran for a VA examination to 
	ascertain the current nature and severity of his boxer's 
	fracture, right hand.  All appropriate tests should be 
      conducted.  The entire claims file, including a copy of 
      this remand, must be made available to the examiner, 
      and the examination report should note review of the 
      file.  The examiner should discuss all symptoms
      related to the Veteran's service-connected boxer's 
      fracture, right hand in accordance with the appropriate 
      VA rating criteria.
      
5.   Conduct any other appropriate development deemed 
	necessary.  Thereafter, readjudicate the claims,
   considering all evidence of record.  If any benefit 
   sought remains denied, the Veteran and his 
   representative must be provided a supplemental 
   statement of the case.  An appropriate period of time 
   must be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).





______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs