Citation Nr: 18142549 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-38 670A DATE: October 16, 2018 ORDER New and material evidence having been presented, the claim of entitlement to service connection for a low back disability is reopened. New and material evidence having been presented, the claim of entitlement to service connection for a left knee disability is reopened. New and material evidence having been presented, the claim of entitlement to service connection for a right knee disability is reopened. New and material evidence having been presented, the claim of entitlement to service connection for a left ankle disability is reopened. New and material evidence having been presented, the claim of entitlement to service connection for a right ankle disability is reopened. New and material evidence having been presented, the claim of entitlement to service connection for prostate cancer is reopened. Service connection for prostate cancer, to include its residuals, is granted. REMANDED The issues of entitlement to service connection for a low back disability, left knee disability, right knee disability, left ankle disability, and right ankle disability are remanded for additional development. FINDINGS OF FACT 1. The claims of entitlement to service connection for a low back disability, left knee disability, right knee disability, left ankle disability, right ankle disability, and prostate cancer were originally denied in a June 2011 rating decision. The decision was not appealed and no new and material evidence was submitted within one year of the decision; the decision became final. 2. Some of the evidence received since the June 2011 denial relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for a low back disability, left knee disability, right knee disability, left ankle disability, right ankle disability, and prostate cancer. 3. The Veteran was stationed at Camp Lejeune from September 1982 to August 1986, and as a result, is presumed to have been exposed to contaminated water. 4. The Veteran’s prostate cancer was incurred in service. CONCLUSIONS OF LAW 1. The June 2011 rating decision that denied the claims of entitlement to service connection for a low back disability, left knee disability, right knee disability, left ankle disability, right ankle disability, and prostate cancer is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been submitted, and the claims of entitlement to service connection for a low back disability, left knee disability, right knee disability, left ankle disability, right ankle disability, and prostate cancer are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for prostate cancer are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to August 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Pursuant to 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. The Board finds that such evidence has been received regarding the claim of entitlement to service connection for a low back disability, left knee disability, right knee disability, left ankle disability, right ankle disability, and prostate cancer, as a result, the claims are reopened. Service Connection 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. § 1131. 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. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may 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. 38 C.F.R. § 3.307(a)(7). 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. 38 C.F.R. § 3.309(f). For disabilities not presumed by regulation to be due to exposure to contaminated water at Camp Lejeune, the Veteran may still establish service connection by showing that any such disability is, in fact, directly and causally linked to exposure to contaminated water at Camp Lejeune, or any other incident or injury in service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). There are two issues to determine if service connection is warranted in this claim on a presumptive basis: whether the Veteran had no less than 30 days of service at Camp Lejeune and whether the Veteran’s cause of death was due to an enumerated disease associated with exposure to contaminated water at Camp Lejeune. The record reflects the Veteran was stationed at Camp Lejeune during active service from September 1982 to August 1986. Therefore, the Board finds the Veteran met the threshold duration of service during the applicable time period required under 38 C.F.R. § 3.307(a)(7)(iii). Next, the Board notes that diagnoses and treatment for prostate cancer and its residuals, are confirmed by post-service treatment records. The Veteran was first diagnosed with prostate cancer in April 2003. Medical records also show treatment for residuals of prostate cancer, including impotence/erectile dysfunction, testicular pain and cysts, and hypogonadism. As prostate cancer is not a disease presumed by regulation to be due to exposure to an herbicide, the outcome of the case, therefore, turns on whether prostate cancer is in fact, directly and causally linked to the Veteran’s presumed exposure to contaminated water. In this regard, a VA opinion was obtained in March 2014. The VA clinician opined that it was less likely than not that the Veteran’s prostate cancer was the result of contaminated water exposure at Camp Lejeune. The clinician reasoned that although the Veteran served at Camp Lejeune, North Carolina, and was exposed to contaminants, it was during the 1980s when mitigation processes were already under way to lower contaminant levels. In a textbook titled “Contaminated water supplies at Camp Lejeune,” the National Research Council concluded there was inadequate/insufficient evidence to determine an association between prostate cancer and the contaminants of interest at Camp Lejeune. The clinician also noted there are numerous risk factors for prostate cancer, such as prostatitis and other infections, ethnicity, genetics, diet, hormone factors, obesity, and smoking, and age is the strongest relationship with cancer incidence rising sharply beginning at the age of 40. The examiner noted the Veteran was approximately 40 years old when prostate cancer was diagnosed and that Agent Orange and the organochlorine insecticide, chlordecone, are the only known environmental risk factors for prostate cancer. The Board notes that the VA examiner premised his opinion upon the reported mitigation efforts at Camp Lejeune and risk factors. 38 C.F.R. § 3.307, however, does not consider nor weigh mitigation efforts against the Veteran’s claimed exposure to contaminated water. Rather, 38 C.F.R. § 3.307 focuses primarily upon whether the Veteran served at Camp Lejeune during the relevant period for the requisite number of days, and whether the Veteran was diagnosed with an enumerated disability under the regulation. As such, the Board accords the March 2014 VA opinion little probative weight. In April 2014, the Veteran submitted a Camp Lejeune health study report by the U.S. Department of Health and Human Services Agency for Toxic Substances Disease Registry (ATSDR). The study was to determine whether residential exposures of Marine and Navy personnel, who began service between 1975 to 1985, to contaminated drinking water at Camp Lejeune increased the risk of mortality from cancers and other chronic diseases. The study found that Camp Lejeune Marine and Navy personnel had higher mortality rates for prostate cancer among other cancers, Hodgkin’s lymphoma, leukemia, multiple myeloma, and multiple sclerosis. The study did note that the it did not provide definitive evidence for causality. In June 2018 correspondence, the Veteran submitted another medical article from ATSDR, “Health effects linked with trichloroethylene (TCE), tetrachloroethylene (PCE), benzene, and vinyl chloride exposure.” The article notes that ATSDR assessed 16 diseases in ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases and combined the finding with studies of other populations who were also exposed, occupationally or environmentally, to TCE, PCE, vinyl chloride, and benzene. The report categorized prostate cancer as a health effect with positive findings in at least one study that evaluated exposure to TCE and/or PCE. This category was for health effects that have been linked to TCE, PCE, benzene, and/or vinyl chloride in populations other than Camp Lejeune who worked with or drank water contaminated with these chemicals. The links are based on positive associations between exposures to these chemicals and development of health effects. In a June 2018 statement, the Veteran’s private urologist opined that the Veteran’s prostate cancer was as most likely caused by or a result of the contaminated water. In support of his opinion, the private urologist noted that that the Veteran has no family history of cancer and that he contracted prostate cancer at an early age. He further referenced the Camp Lejeune water study and that the Veteran served at Camp Lejeune from 1982 to 1986 during the period of water contamination. The Board finds this opinion, when read together with the ATSDR studies, demonstrate a positive causal relationship between the Veteran’s prostate cancer and exposure to contaminated water at Camp Lejeune. These opinions are highly probative as they reflect consideration of all relevant facts. The urologist’s conclusion is further supported by his careful assessment of the Veteran’s specific history and findings that accepted medical literature indicates that TCE, PCE, benzene, and/or vinyl chloride ar Camp Lejeune contaminants with positive associations with prostate cancer. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no probative medical opinion of record to the contrary. Resolving doubt in the Veteran’s favor, the Board finds that the Veteran’s prostate cancer was caused by contaminated water exposure at Camp Lejeune, and the claim of entitlement to service connection for prostate cancer is granted. 38 U.S.C. §§ 1131, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to service connection for a low back disability, left knee disability, right knee disability, left ankle disability, and right ankle disability. The Veteran essentially asserts that he is entitled to service connection because he injured his low back, bilateral knees and bilateral ankles during a fall in service. He argues that as a machine gunner, he had to carry a backpack and 50-caliber machine gun. When he was deployed to Japan in 1982 or 1983, the Veteran and the rest of his fellow service members had to climb Mount Fuji and he slipped and fell. He states that he hurt his knees, ankles, and back during the fall but that there were no medics in the field. The Veteran reports that he had swollen knees with throbbing pain at the time of the incident. Thereafter, he also injured his ankles again playing basketball for the Marine Corps basketball team and his back during a car accident in service. He continues to have the knee, ankle, and back pain. The Veteran has not yet been afforded a VA examination in connection with his service connection claims for these conditions. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the Veteran’s reports attributing his current conditions to his period of service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of the claim. See McLendon, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated him for a low back, bilateral knee, and bilateral ankle condition. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. Additionally, obtain VA treatment records dating from January 2018 to the present. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. Schedule the Veteran for a VA examination to determine the etiology of his low back, bilateral knee, and bilateral ankle disabilities. The Veteran’s claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should address the following: (a.) With respect to his low back, bilateral knees, and bilateral ankles disabilities, is it at least as likely as not (50 percent probability or greater) that each of these disabilities arose during service or are otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, on the Veteran’s reports that he fell climbing Mount Fuji, while carrying a backpack and 50-caliber machine gun and that he further aggravated his low back in a car accident and his ankles playing basketball during service. Please note that a medical opinion that concludes that a disease is not related to service solely because there is absence of medical records is inadequate. (b.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the Veteran’s claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel