Citation Nr: 1804105 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-06 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a skin disorder, to include squamous cell carcinoma and basal cell carcinoma as a result of exposure to contaminated water at Camp Lejeune. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 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). FINDING OF FACT 1. The Veteran served on active duty at Camp Lejeune, and is presumed to have been exposed to contaminated drinking water. 2. The Veteran's currently diagnosed squamous cell carcinoma and basal cell carcinoma did not originate in service or manifest until years thereafter, and is not otherwise related to service, to include exposure to contaminated water therein. CONCLUSION OF LAW The criteria for service connection for a skin disorder, to include squamous cell carcinoma and basal cell carcinoma as a result of exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(7), 3.309(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In this case, 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 a duty to assist argument). Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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). Only chronic diseases listed under 38 C.F.R. § 3.309(a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. 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 Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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, 448-9 (2000). Also significant is whether the examining medical provider 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 that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The 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). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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 (b); 38 C.F.R. § 3.102 . Regarding the Veteran's assertion that his alleged disability was due to his in-service exposure to water contamination while he was stationed at Camp Lejeune, the Board notes that service connection may also be proven by presumption. Effective March 14, 2017, 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. 38 C.F.R. § 3.307(a)(7) (2017). If a Veteran served on Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f) (2017). The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). Here, the evidence establishes that the Veteran was stationed at Camp Lejeune during a portion of his active military service from May 1971 to June 1971, as documented in his personnel records. However, the Veteran's skin disorders are not presumptive diseases associated with exposure to contaminants in the water supply at Camp Lejeune. Nonetheless, the absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the next step is to verify, with medical evidence obtained through a VA medical examination or other authoritative medical sources, whether a claimed current disease or disability is at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune. Service treatment records are silent for any treatment, findings or diagnosis of basal cell carcinoma or skin cancer. The Veteran's May 1972 Report of Medical Examination when he was released from active duty showed normal clinical evaluation of the skin and lymphatic systems. Next, the Veteran diagnosed with squamous cell carcinoma in June 2014 on his left ear superior helix. The Veteran was diagnosed with basal cell carcinoma in March 2014 on his right ear lobe. Notably, these diagnoses occurred more than 40 years following service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). VA also obtained a medical opinion in July 2015. The examiner indicated that the claims file had been reviewed. It was then opined that the Veteran's skin cancer was not due to exposure to contained water at Camp Lejeune. In support of this opinion, the examiner stated that the Veteran was diagnosed with both basal cell carcinoma and squamous cell carcinoma, both in 2014 and both from parts of his external ear. Moreover, and according to the American Cancer Society, basal cell carcinoma (BCC) was not only the most common type of skin cancer, but the most common type of cancer in humans, accounting for approximately 80% of skin cancers. The ACS also reported that squamous cell carcinoma (SCC) was the second most common type of skin cancer and accounted for approximately 20% of skin cancers in the U.S. The examiner further indicated that both types of skin cancer typically occurred on sun-exposed areas of skin, like the face, ears, neck, lips, and backs of the hands. Other known risk factors in adults included having light-colored skin, being of older age, being of male gender, chemicals -in particular exposure to large amounts of arsenic increases the risk of skin cancer, exposure to radiation, having had a skin cancer, certain long-term or severe skin problems, psoriasis treatment, and having a weakened immune system - either from a disease process or a medication used to treat a medical condition, e.g. steroids. The examiner also noted that, when the US Environmental Protection Agency studied the four solvents found in the drinking water at Camp Lejeune, they found no data indicating increased incidence of SCC and exposure to Trichloroethylene, Tetrachloroethylene, Benzene or Vinyl Chloride. The Institute of Medicine conducted an extensive review of the literature, which looked at solvent exposure and an increased risk of various health effects. The Committee report stated "The committee concludes, from its assessment of the epidemiologic literature, that there is inadequate/insufficient evidence to determine whether an association exists between chronic exposure to solvents under review, and melanoma or non-melanoma skin cancer." Therefore, based upon the currently available literature, the Veteran's gender, being Caucasian, having green eyes, his sun exposure, and his short stay at Camp Lejeune (less than four fifths of a year), the July 2015 VA examiner opined, to a reasonable degree of medical certainty, that the Veteran's squamous cell carcinoma and basal cell carcinoma, both removed from his external ears were not due to his exposure to contaminated water at Camp Lejeune. Upon review of the record, the Board finds the preponderance of the competent, credible, and probative evidence is against the claim. As discussed above, service treatment records do not reference any symptoms, treatment, or diagnosis of basal cell carcinoma or any other skin cancer. Clinical evaluation of the skin and lymphatic system was normal at the separation examination in 1972. The first evidence of skin cancer was also many years after service. The Board notes that the Veteran apparently served at Camp Lejeune during the period of potential exposure; thus, he is presumed to have been exposed to contaminated drinking water. Further, as noted above, the Veteran has been diagnosed with skin cancer. What is missing from the record is competent evidence showing that the skin cancers may be causally related to the Veteran's presumed exposure to contaminated water in service. As noted above, the VA examiner in July 2015 rendered a negative opinion, with rationale, opining that the Veteran's skin disorders were not caused by or a result of exposure to contaminated water at Camp Lejeune. The Board finds that the VA examiner's opinion was based on a review of the record and pertinent medical and scientific literature, and is probative and persuasive on the issue of whether the claimed condition is related to active service. Notably, the Veteran has not submitted competent medical evidence suggesting a relationship of skin cancer to contaminated water at Camp Lejeune, or otherwise to service. The Board recognizes the Veteran contends that his basal cell carcinoma is related to exposure to contaminated water during his service at Camp Lejeune. However, the Veteran is not competent to report that his current disorder is related to exposure to contaminated water in service. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Particularly where the matter of the health effects of contaminated water at Camp Lejeune are the subject of scientific studies, the Board finds that the question of the relationship of skin cancer and water contamination is far outside the realm of lay expertise. The Board notes that the Veteran does not contend that he developed skin cancer while in service. For these reasons, the Board finds that the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). ORDER Service connection for a skin disorder, to include squamous cell carcinoma and basal cell carcinoma as a result of exposure to contaminated water at Camp Lejeune, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs