Citation Nr: 1804564 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 15-16 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for renal cancer, status post right nephrectomy, to include as due to exposure to contaminated water at Camp Lejeune. WITNESSES AT HEARING ON APPEAL Appellant and daughter, P.E. ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION 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 Veteran served on active duty from August 1956 to August 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction subsequently transferred to the RO in Jackson, Mississippi. The Veteran presented testimonial evidence at a Board hearing held via videoconferencing equipment before the undersigned Veterans Law Judge in November 2017. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran served more than 30 days at the United States Marine Corps Base Camp Lejeune between 1957 and 1958; he is thus presumed to have been exposed to contaminants in the water at Camp Lejeune. 2. The Veteran's renal cancer is presumptively related to his exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for kidney cancer have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for renal cancer, status post right nephrectomy, which he contends is due to exposure to contaminated water while stationed at Camp Lejeune during active military service. Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (codified at 38 C.F.R. pt. 3). This presumption may be rebutted by affirmative evidence to the contrary. Id. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended 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. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 82 Fed. Reg. at 4,185 (codified at 38 C.F.R. § 3.309 (f)). As such, if a Veteran is diagnosed with a listed condition and had qualifying service at Camp Lejeune, then the disability is presumed to be related to service. Id. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. They do not apply retroactively to claims previously adjudicated. The Veteran's claim was on appeal and still pending on January 13, 2017, and the amended regulations apply. The Board finds that competent, credible, and probative evidence establishes that the Veteran's renal cancer is etiologically related to his active duty service. The Veteran's military personnel record establishes that the Veteran served in Camp Lejeune for more than one year during the recognized contamination period. VA concedes that any veteran who served at Camp Lejeune for more than 30 days between August 1953 and December 1987 was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there. The record also establishes that the Veteran was diagnosed with kidney cancer in 2012. Specifically, private treatment records document testing showing renal cell adenocarcinoma of the right kidney, for which the Veteran underwent radical nephrectomy. Given the amendments to 38 C.F.R. §§ 3.307 and 3.309, the Veteran's kidney cancer is presumed to be related to his exposure to contaminated water at Camp Lejeune during his military service. For this reason, service connection for kidney cancer is warranted. ORDER Service connection for kidney cancer, status-post right radical nephrectomy is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs