Citation Nr: 1757070 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 16-60 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bladder cancer, to include as a result of exposure to containments in the water supply at Camp Lejeune. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Veteran and his spouse and T.K., Observer ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge in May 2017. A transcript of that proceeding has been associated with the claims file. The Board notes that during the pendency of the Veteran's appeal for service connection for bladder cancer, VA has amended 38 C.F.R. §§ 3.307 and 3.309 to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. This amendment is taken under consideration below. FINDINGS OF FACT 1. The Veteran has a current diagnosis of bladder cancer. 2. The Veteran served on active duty at United States Marine Corps Base Camp Lejeune from October 1965 to February 1966. 3. The Veteran's bladder cancer has required cystoscopic tumor removal and residuals have been manifest by voiding dysfunction or renal dysfunction. CONCLUSION OF LAW The criteria for service connection for bladder cancer on a presumptive basis are met. 38 U.S.C. § 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(7), 3.309(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune Under the new codified 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 §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 §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 §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. Analysis With regard to whether the Veteran meets the requirement for presumed exposure to contaminants in the water at Camp Lejeune, specifically the requirement that the Veteran serve no less than 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, the record supports that the Veteran was stationed at Camp Lejeune from October 1965 to February 1966 for training. See Form DD 214; Veteran's October 2012 Correspondence; February 2013 VA examination report; and May 2017 Hearing Transcript. These 150 days fall within the August 1, 1953 to December 31, 1987 requirement and meet the at least 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 has a disease listed under section 3.309(f), diseases subject to presumptive diagnosis as evidenced by a February 2013 VA examination report, wherein the examiner diagnosed the Veteran with bladder cancer. See 38 C.F.R. §§ 3.307(a)(7)(ii); 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 10 percent or more. 38 C.F.R. § 3.307(a)(7)(ii) (The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service). Addressing the 10 or more percent requirement, the Board notes that pursuant to Diagnostic Code 7528, malignant neoplasms of the genitourinary system, provides one disability level, 100 percent for active disease. A Note to that Code states that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based on that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, a Veteran's cancer is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. A May 2011 private treatment urology note indicated the Veteran was diagnosed with bladder cancer in December 2011 and treatment included cystoscopic bladder tumor removal. He reported voiding on average every hour or less a day and zero to one time at night. He reported voiding frequency, urgency, and incontinence. The Board finds that these treatment notes establish that the Veteran's bladder cancer meets the 10 percent or more criteria under 38 C.F.R. § 4.117; DC 7528. See 38 C.F.R. § 3.307(a)(7)(ii). Therefore, the Board upon review of the relevant evidence finds that that the Veteran meets the requirements of 38 C.F.R. § 3.307(a)(7) for presumptive service connection for his bladder cancer. See 38 C.F.R. § 3.307(a)(7)(iv). ORDER Service connection for bladder cancer is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs