Citation Nr: 18142732 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 18-02 535 DATE: October 16, 2018 ORDER Entitlement to service connection for residuals of prostate cancer, to include as due contaminated water at Camp Lejeune, is denied. Entitlement to death pension benefits is denied. REMANDED Entitlement to service connection for residuals of colon cancer, to include as due to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for Barrett’s esophagus, to include as due to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for lung cancer, to include as due to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. The Veteran’s prostate cancer was not present during active service, is not shown to have been manifest to a compensable degree within one year of service separation, and the most probative evidence establishes that the Veteran’s prostate cancer, or residuals thereof, is not related to his active service or any incident therein. 2. The Veteran did not serve during a period of war. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for death pension benefits have not been met. 38 U.S.C. §§ 101, 1501, 1521, 1541 (2014); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1957 to March 1959. He died in April 2011; the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 determination letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. The Board observes that the service connection claims on appeal were initially adjudicated as accrued benefits claims. However, in a November 2017 statement of the case (SOC), it was determined that the appellant had met the criteria to be a substituted claimant. In light of the forgoing, the Board construes the service connection claims on appeal as claims of service connection for substitution purposes and not for accrued benefits. As such, the Board has characterized the claims on appeal to reflect its finding. 1. Entitlement to service connection for residuals of prostate cancer, to include as due contaminated water at Camp Lejeune Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for certain chronic diseases, including malignant tumors, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for certain enumerated diseases related to exposure to contaminated drinking water at Camp Lejeune. Under the new regulations, 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) (amended March 14, 2017). 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 38 C.F.R. § 3.307(a)(7), the following diseases will 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; and 8) bladder cancer. 38 C.F.R. § 3.309(f) (2017) (amended March 14, 2017). The rule applies to all claims pending before the finalization of the rule on March 14, 2017. As the service connection claim addressed herein was pending on March 14, 2017, the new amendments apply to this claim. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The appellant asserts that service connection for residuals of prostate cancer is warranted. She contends that the Veteran’s prostate cancer was caused by exposure to contaminated water at Camp Lejeune. Service treatment records are negative for treatment for or diagnosis of prostate cancer during military service. Notably, at the time of the Veteran’s February 1959 military separation examination, his genitourinary system, anus, and rectum (including prostate) were noted to be clinically normal. There was no finding or assessment of prostate cancer. The Veteran’s Certificate of Release or Discharge from Active Duty (Form DD 214) confirms that he was stationed at Camp Lejeune. Post-service medical treatment records demonstrate a diagnosis of prostate cancer in 2003, more than four decades after separation from service. However, there is no indication in the post-service clinical records that the Veteran’s prostate cancer was due to the Veteran’s military service. In a September 2016 medical opinion submitted by the appellant’s attorney, a private physician reported that studies have shown that drinking water at Camp Lejeune had been contaminated between the 1950s and 1980s with chemicals which included trichloroethylene (TCE), perchloroethylene (PCE), Benzene, and vinyl chloride (VC). She indicated that consequently, it is fair to assume that the Veteran was exposed to TCE and other known carcinogens while stationed at Camp Lejeune. She further noted that a number of studies have demonstrated that there is an increased association between TCE exposure and prostate cancer. She asserted that TCE exposure led the Veteran to have an increased risk of prostate cancer. She also determined that it was likely that the appellant’s prostate cancer could have been due to exposure to VC at Camp Lejeune. She concluded that the Veteran’s exposure to TCE and VC during military service as likely as not caused his prostate cancer. In so finding, she noted that the appellant was not only exposed to TCE and VC through the base drinking water supply, but was also exposed to TECE due to his military occupation as an ammunition technician. In a December 2016 medical opinion, a VA physician indicated that after reviewing the record on appeal, it was his opinion that the Veteran’s prostate cancer was less likely due to Camp Lejeune contaminated water. In so finding, he noted that the Veteran was diagnosed with prostate cancer in August 2003 at the age of 67, approximately 44 years after service at Camp Lejeune. He reported that cancer of the prostate is the most common malignant neoplasm in men from North America, noting that the most important risk factor is increasing age. He indicated that the prevalence of prostate cancer in men increases with age. The risks increase in men with one or more affected first-degree relatives (brother or father). The examiner also reported that after substantial occupational exposures for at least 5 years, there may be an increased risk of developing prostate cancer associated with TCE or PCE. However, there are several studies in the literature that have not found any increase in risk of developing prostate cancer after workplace exposure. Therefore, without the possible exception of significant occupational exposure to PERC or TCE for greater than 5 years, there is limited scientific documentation linking exposure to either of these solvents and the development of prostate cancer. The VA examiner noted that the private physician provided a positive opinion, however, she did not comment on the Veteran’s personal history of risk factors such as advanced age, positive family history of prostate cancer, and long-term tobacco use. He noted that a review of literature indicates that prostate cancer has several known risk factors, the most important being increasing age, genetic factor such as positive family history, obesity, and smoking. He noted that the medical records document a family history of prostate cancer in the Veteran’s family as well as a 50-pack history per year of tobacco use prior to quitting. With regard to VC exposure, the examiner noted that the U.S. Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (ATSDR) reported that the maximum contaminant level of VC was from November 1972 to January 1985 and the maximum contaminant level for benzene was from January 1979 to January 1985. Therefore, it does not appear that VC would have likely posed an additional risk to the Veteran. As for occupational exposure, the VA examiner indicated that most studies concluded that only the highest levels of exposure are associated with a potentially increased risk for the development of prostate cancer. He noted that the estimates of exposure in those studies are significantly higher than the estimates at Camp Lejeune. In the substantive appeal received in January 2018, the appellant’s attorney asserted that the December 2016 VA medical opinion is inadequate. In so finding, he argued that the VA examiner overlooked the fact that the Veteran’s contaminant exposure included military duties that included use of TCE. Analysis After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for residuals of prostate cancer. As previously noted, governing law provides for presumptive service connection based on exposure to contaminated drinking water at Camp Lejeune in service for certain enumerated diseases for Veteran’s 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. 38 C.F.R. § 3.307 (a)(7) (2017) (amended March 14, 2017). The Veteran’s military personnel records indicate that he had the required service at Camp Lejeune. Thus, he is presumed to have been exposed to contaminated water at Camp Lejeune. However, the Veteran’s diagnosed prostate cancer disability is not listed as diseases associated with exposure to contaminated drinking water at Camp Lejeune. As such, presumptive service connection is not warranted. Notwithstanding the foregoing legal presumptive provision, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, the probative evidence establishes that the Veteran’s prostate cancer did not manifest during active service or within the first post-service year. In this regard, service treatment records are negative for treatment for a prostate disability during military service. The Veteran’s February 1959 military separation examination was normal in all pertinent respects. Further, the Veteran’s prostate cancer was diagnosed in 2003, more than 44 years after separation from military service. The appellant does not contend otherwise. Notwithstanding the foregoing, the appellant claims that the Veteran’s prostate cancer is due to exposure to contaminated water at Camp Lejeune. There are competing medical opinions of record addressing this issue; however, the Board finds that the most probative medical evidence of record indicates that the Veteran’s prostate cancer was not caused by exposure to contaminated water at Camp Lejeune. The Board has the authority to “discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.” Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. Factors that may be considered in assessing the probative value of a medical opinion include a physician’s access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). 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). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). After a review of all the medical opinions of record, the Board finds that the December 2016 opinion provided by the VA examiner is more probative than the September 2016 private opinion of record. In this regard, the VA examiner’s opinion was based on a thorough review of the Veteran’s medical records and cited to relevant medical principles. The VA medical opinion also took into account the Veteran’s family history of prostate cancer, his smoking history, and the length of time the Veteran had been present at Camp Lejeune, all factors which weigh against a causal connection based on current medical studies. The Board acknowledges that appellant’s representative’s assertion that the VA medical opinion is inadequate. However, the opinion was consistent with the other evidence of record and is supported by a detailed rationale, which included discussion of risk factors of prostate cancer and occupational exposure to contaminants. Conversely, the private physician who provided the September 2016 medical opinion did not provide a sufficient rationale to support the opinion rendered, given the Veteran’s risk factors of being a man past a certain age, his family history of prostate cancer, and his smoking history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While she noted that research demonstrated that prostate cancer can result from exposure to chemicals found in water at Camp Lejeune, she did not explicitly state how such exposure was the cause of the Veteran’s prostate cancer, given his significant risk factors. Further, her rationale focused on the Veteran’s prostate cancer metastasizing into lung cancer. As noted by the VA examiner, the private physician failed to consider other risk factors of the cause of the Veteran’s prostate cancer. In light of the foregoing, the opinion is assigned lower probative value. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to death pension benefits Death pension benefits are generally available for surviving spouses as a result of the Veteran’s nonservice-connected death. 38 U.S.C. §§ 1521, 1541; 38 C.F.R. § 3.3. To establish basic eligibility the evidence must show that the Veteran (1) served for at least ninety days during a period of war; or (2) served during a period of war and was discharged for a service-connected disability. Id. The term “period of war” is defined by statute, and means the Spanish American War, the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. The Korean War ended on January 21, 1955. The next period of war, the Vietnam War period, is from February 28, 1961, to May 7, 1975, for those who served in Vietnam, and from August 5, 1964 to May 7, 1975 for those who did not serve in Vietnam. 38 U.S.C. § 101(29); 38 C.F.R. § 3.2(f). Factual Background and Analysis The Veteran’s Certificate of Release of Discharge from Active Duty (Form DD214) shows that he had active miliary service from March 1957 to March 1959. Such service occurred after the Korean War and prior to either applicable period of the Vietnam War era. Thus, the evidence does not demonstrate that the Veteran had service during a period of war. As such, the appellant is not entitled to death pension benefits. The Board is sympathetic to the appellant’s loss of her husband and recognizes his honorable service to the Nation; however, there is no legal basis for death pension benefits. 38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.6; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, the appellant’s claim for death pension benefits must be denied. REASONS FOR REMAND 1. Entitlement to service connection for residuals of colon cancer, to include as due to contaminated water at Camp Lejeune, is remanded. In a September 2016 private medical opinion, the physician indicated that the Veteran’s colon cancer, could possibly be due to contaminated water at Camp Lejeune. However, she did not provide a rationale to support her conclusion, rendering it of little probative value on this question. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the opinion is insufficient to determine the service connection claim. On remand, a medical opinion regarding the etiology of the Veteran’s colon cancer must be obtained. 2. Entitlement to service connection for Barrett’s esophagus, to include as due to contaminated water at Camp Lejeune, is remanded. Governing law provides for presumptive service connection based on exposure to contaminated drinking water at Camp Lejeune in service for certain enumerated diseases for Veteran’s 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. 38 C.F.R. § 3.307(a)(7) (2017)(amended March 14, 2017). As detailed herein, the Veteran is presumed to have been exposed to contaminated water at Camp Lejeune. However, the Veteran’s diagnosed Barrett’s esophagus is not listed as diseases associated with exposure to contaminated drinking water at Camp Lejeune. As such, presumptive service connection is not warranted. Notwithstanding, service connection can still be granted with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board observes that a VA medical opinion has not been obtained. Upon remand, a VA medical opinion should be obtained to determine the etiology of the Veteran’s Barrett’s esophagus. 3. Entitlement to service connection for lung cancer, to include as due to contaminated water at Camp Lejeune, is remanded. Initially, the appellant asserted that the Veteran’s lung cancer was due to exposure to contaminated water at Camp Lejeune. Subsequently, in correspondence received in August 2012 she asserted that it was due to a left lung scar caused by pneumonia treated during military service. Service treatment records show that the Veteran was treated for pneumonia in April 1957. The Board observes that the medical opinions regarding the etiology of the Veteran’s lung cancer were obtained in July 2016 and December 2016. However, the opinions only discussed whether the Veteran’s lung cancer was caused by contaminated water at Camp Lejeune or the Veteran’s prostate cancer, for which service connection was denied herein. As the medical opinions did not discuss whether the Veteran’s lung cancer was attributable to pneumonia treated during military service, an additional medical opinion must be obtained on remand. 4. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Board finds that the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death is inextricably intertwined with the issue of entitlement to service connection for lung cancer remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision in the matter). Thus, the claim should be held in abeyance, pending the development and readjudication of the cause of death claim on appeal. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s colon cancer. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The clinician is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s colon cancer was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein, to include exposure to contaminated water at Camp Lejeune? The clinician should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. 2. Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s Barrett’s esophagus. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The clinician is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s Barrett’s esophagus was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein, to include exposure to contaminated water at Camp Lejeune? The clinician should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. 3. Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s lung cancer. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The clinician is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s lung cancer was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein, to include pneumonia treated during military or any residual thereof such as a left lung scar, and exposure to contaminated water at Camp Lejeune? The clinician should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel