Citation Nr: 18146495 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-36 667 DATE: October 31, 2018 ORDER Service connection for esophageal cancer, to include as due to Camp Lejeune water contamination, is denied. Service connection for throat cancer, to include as due to Camp Lejeune water contamination, is denied. Service connection for laryngeal cancer status post radiation treatment, to include as due to Camp Lejeune water contamination, is denied. FINDINGS OF FACT 1. The Veteran had no current diagnosis of esophageal cancer or throat cancer (other than laryngeal cancer) at any point during the appeal period. 2. The Veteran’s current laryngeal cancer status post radiation treatment is not presumptively associated with Camp Lejeune water contamination; this condition did not manifest to a compensable degree within one year of service; and this condition did not begin during active service, and it is not otherwise related to active service, to include his conceded exposure to contaminated water at Camp Lejeune or acute in-service throat symptoms. CONCLUSIONS OF LAW 1. The criteria for service connection for esophageal cancer, to include as due to Camp Lejeune water contamination, have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for throat cancer, to include as due to Camp Lejeune water contamination, have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for laryngeal cancer, to include as due to Camp Lejeune water contamination, have not been met. 38 U.S.C. §§ 1131, 5107(b); 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 January 1973 through March 1976. He testified before the undersigned Veterans Law Judge during an August 2016 video conference hearing and transcript of that proceeding is of record. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Pertinent regulations for consideration were provided to the Veteran in the July 2014 Statement of the Case (SOC) and will not be repeated here in full. Additional authorities that were not previously provided are summarized below. Service Connection The Veteran seeks service connection for esophageal cancer, throat cancer, and laryngeal cancer. He primarily contends that he has current diagnoses of each of these conditions, and that such conditions are related to his exposure to contaminated water during his active service at Camp Lejeune. Alternatively, he contends that these conditions are related to documented in-service throat complaints. For the reasons discussed below, the claims are denied. 1. Service connection for esophageal cancer and service connection for throat cancer, to include as due to Camp Lejeune water contamination, are denied. The Veteran claims service connection for throat cancer and esophageal cancer. Initially, to the extent that the Veteran references alleged, current diagnoses of throat cancer or esophageal cancer intended to include a claim for service connection for laryngeal cancer, that Board will address that distinct claim separately in the next section. After a full review of the record, the service connection claims for throat cancer and esophageal cancer are denied. The Veteran has not been diagnosed with esophageal cancer at any point during the appeal period. Nor has he been diagnosed with throat cancer (other than his specific diagnosis of laryngeal cancer, which the Board will address further below). Moreover, there is no competent evidence suggesting that he has had throat or esophageal symptoms resulting in functional impairment in earning capacity at any point during the appeal period (other than such symptoms and functional impairments that medical providers clearly and competently attributed to his established diagnosis of laryngeal cancer). Thus, the Board finds that he has no current throat cancer or esophageal cancer disability for which service connection may be granted. The presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress specifically has limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. Thus, where the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In conclusion, the service connection claims for throat cancer and esophageal cancer are denied. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Service connection for laryngeal cancer, to include as due to Camp Lejeune water contamination, is denied. The Veteran seeks service connection for his current laryngeal cancer status post radiation therapy. He primarily contends that this condition is due to exposure to contaminated water at Camp Lejeune. He also contends that this condition may have been related to acute throat and upper respiratory symptoms during service. After a full review of the record, the claim is denied on both a presumptive and a direct basis. The weight of the most competent and probative evidence of record does not show that the Veteran’s laryngeal cancer status post radiation treatment is related to service, either presumptively or directly, to include his conceded exposure to contaminated water at Camp Lejeune or in-service throat symptoms. Initially, service connection for laryngeal cancer is unwarranted on a presumptive basis under the Camp Lejeune water contamination provisions of 38 C.F.R. §§ 3.307 and 3.309. The Board concedes that the Veteran had at least thirty days of service at U.S. Marine Corps Base in Camp Lejeune, North Carolina in the mid-1970s, during the required period. See DD Form 214 and service treatment records. Thus, he is presumed to have been exposed to contaminated water during his active service at Camp Lejeune under 38 C.F.R. § 3.307(a)(7)(iii) (“A veteran…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….”). However, laryngeal cancer is not on the list of diseases presumptively associated with his conceded exposure to contaminated water at Camp Lejeune. By way of background, VA issued Training Letter 10-03 in April 2010 in which it acknowledged that individuals stationed at Camp Lejeune from 1957 to 1987 were potentially exposed to drinking water contaminated with volatile organic compounds. Two of the eight water treatment facilities supplying water to the base were contaminated with either trichloroethylene (TCE) or tetrachloroethylene (perchloroethylene, or PCE) from an off-base dry cleaning facility. The Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (ATSDR) estimated that TCE and PCE drinking water levels exceeded current standards from 1957 to 1987 and represented a public health hazard. In addition to TCE and PCE, ATSDR has also indicated that high concentrations of benzene, Vinyl Chloride, and trans-1, 2-dichloroethylene (1, 2-DCE) were detected in the drinking water system. The National Academy of Sciences’ National Research Council (NRC) and the ATSDR studied the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting June 2009 report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects,” the NRC reviewed previous work done by the ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual. To address potential long-term health effects, the NRC focused on diseases associated with TCE, PCE, and other VOCs. Based on analyses of scientific studies involving these chemicals, the NRC assessed the potential association between certain diseases and exposure to the chemical contaminants. The NRC analysis found that no disease fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited/suggestive evidence of an association: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. Notably, the NRC analysis did not include laryngeal cancer among diseases with a limited/suggestive evidence of an association with Camp Lejeune contaminant exposures. Moreover, laryngeal cancer is not listed under 38 C.F.R. §§ 3.307 and 3.309 in the provisions governing diseases presumptively associated with Camp Lejeune contaminated water exposure, contrary to the representative’s suggestion otherwise. See October 2018 brief. In summary, the Veteran is not entitled to service connection on a presumptive basis under these provisions. Nor is presumptive service connection warranted under the chronic disease provisions of 38 C.F.R. §§ 3.307 and 3.309, which apply to malignant tumors. First, the Veteran’s service treatment records include various references to sore throat complaints in the context of diagnoses and treatment of upper respiratory infections or viral illnesses. To the extent that his service treatment records noted treatment for throat complaints, these were acute, isolated findings, and he was not diagnosed with or shown to have a chronic laryngeal condition (including cancer) at any time during service. See 38 C.F.R. § 3.303(b) (“For the showing of a 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, as distinguished from merely isolated findings...”) (emphasis added). Indeed, the Veteran’s March 1976 separation report of medical examination found his neck and throat were normal. Moreover, the negative 2016 VA medical opinion discussed further below considered the service treatment records’ references to various in-service throat complaints; nonetheless, the examiner competently and persuasively found that his laryngeal cancer was not a progression of his in-service throat symptoms based on a thorough discussion of other risk factors and his pertinent medical history. Second, the Veteran’s laryngeal cancer did not manifest to a compensable degree within one year of service (and he does not appear to contend this). He was diagnosed with this condition in August 2013, more than three decades after service separation. Third, the evidence does not show continuity of symptomatology since service. The Veteran’s summer to fall 2013 VA outpatient treatment records document his first post-service complaints of throat symptoms such as hoarseness, as well as VA doctors’ initial diagnosis of laryngeal cancer. Discussions of his reported medical history in those 2013 VA treatment records do not suggest that he attributed such symptoms to service in any way; nor do they show that he reported continuous throat or laryngeal symptoms since service during those encounters. To the contrary, an August 2013 VA ear, nose, and throat note shows that the Veteran reported constant hoarseness for the past six months. Had he indeed experienced continuous throat symptoms since service, it is reasonable to expect that he would have alleged this then; the fact that he did not does not suggest continuous symptoms since service. Thus, to the extent that the Veteran contends that he has had continuous laryngeal symptoms since service, the Board does not find that contention credible. In summary, presumptive service connection for laryngeal cancer is unwarranted under the chronic disease provisions. Nor is the Veteran entitled to service connection for laryngeal cancer on a direct basis. Initially, the medical evidence shows that he first was diagnosed with laryngeal cancer in August 2013 and underwent radiation therapy soon after; he also has had ongoing VA monitoring for recurrences. Thus, a current disability of laryngeal cancer status post radiation treatment is established. Also, as discussed above, the Board concedes exposure to contaminated water at Camp Lejeune. However, service connection is unwarranted on a direct basis because the weight of the most competent and persuasive evidence does not show that this condition is related to service, including his conceded Camp Lejeune water contamination or documented in-service throat symptoms. The Board rejects the Veteran’s direct service connection theory that his laryngeal cancer is related to his conceded exposure to contaminated water at Camp Lejeune. As discussed above, laryngeal cancer is not on the list of conditions presumptively associated with Camp Lejeune water contamination; however, service connection still may be granted if competent, persuasive medical evidence shows a relationship between that condition such contamination. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The weight of the most competent and probative evidence does not show that the Veteran’s laryngeal cancer was directly related to his conceded exposure to contaminated water at Camp Lejeune. The Board affords great probative value to the February 2014 negative VA medical opinion finding that the Veteran’s laryngeal cancer was less likely as not related to exposure to Camp Lejeune contaminated water. The examiner noted that this type of cancer is not found on the NRC list of conditions that may be associated with Camp Lejeune contaminated water exposure. Moreover, the examiner accurately considered the Veteran’s pertinent medical history in light of relevant risk factors for this type of cancer, including his history of smoking and alcohol use. Moreover, the examiner competently and persuasively reasoned that the list of risk factors associated with laryngeal cancer does not include exposure to the chemicals TCE or PCE. The Board also affords great probative value to the Veteran’s VA outpatient treatment records. His VA providers did not directly address whether his conceded exposure to contaminated water at Camp Lejeune resulted in his laryngeal cancer. However, his VA medical providers competently and consistently suggested that his long history of smoking from the 1970s through the present appeal period was a risk factor for his laryngeal cancer (and continues to be a risk factor for recurrences). These findings corroborate the 2014 and 2016 VA examiners’ respective discussions of the Veteran’s laryngeal cancer risk factors, including his history of smoking. In addition, the Veteran expressly acknowledged during the Board hearing that none of his doctors have related his laryngeal cancer to his Camp Lejeune contaminated water exposure; to the contrary, he acknowledged that his doctors have related this condition to his history of smoking. The Board also rejects the Veteran’s direct service connection theory that his laryngeal cancer was related to acute throat complaints shown in his service treatment records. As discussed further above regarding continuity of symptomatology, these were merely acute and transitory symptoms that military providers generally diagnosed as upper respiratory infections, viral infections, or other non-chronic conditions. Indeed, his 1976 separation examination shows his throat and neck were normal. No military medical providers or post-service medical professionals suggested that such acute symptoms may have been early manifestations of chronic laryngeal cancer. The Board affords great probative value to the negative March 2016 VA medical opinion concluding that the Veteran’s laryngeal cancer was less likely than not incurred in service, or due to / a progression of documented sore throats during active service. The VA examiner thoroughly and accurately considered the Veteran’s pertinent medical history, including relevant VA treatment records and service treatment records, as well as pertinent medical literature. The examiner competently and persuasively explained that tobacco use and alcohol consumption are the primary risk factors associated with head and neck cancers, and noted the Veteran’s forty-pack-year history of smoking and history of alcohol consumption. This discussion of the Veteran’s risk factors, including his history of smoking and alcohol consumption, is consistent with and corroborates the negative 2014 VA medical opinion; it is also consistent with the VA outpatient treatment records summarized above. Moreover, the examiner accurately and persuasively explained that the Veteran was seen for various viral infections during active service, but he recovered without residuals as shown by the March 1976 separation examination showing his neck and throat were normal. Moreover, the Veteran does not contend that any of his VA treating providers have related his acute and transitory, in-service throat symptoms to his laryngeal cancer that was diagnosed more than thirty years later. To the contrary, as noted above, he acknowledged during the Board hearing that his doctors have related this condition to smoking history. The Board recognizes the Veteran’s contention that his laryngeal cancer was caused by his conceded exposure to contaminated water at Camp Lejeune, or alternatively, that this condition was related to in-service throat complaints. The Board also considered his 2016 hearing testimony regarding his lack of a family history of cancer. However, the Veteran lacks the medical expertise to make such etiology assessments. Opinions on the etiology of cancer, especially in cases of chemical exposures, involve complex medical questions that require the expertise of medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s lay statements cannot be accepted as competent evidence sufficient to establish service connection. Finally, the Board recognizes the Veteran’s suggestion during the 2016 Board hearing that even assuming his laryngeal cancer was due to smoking, he began smoking during service. To the extent the Veteran’s claim is based at all on smoking cigarettes during service, this theory is precluded by law. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300(a). In summary, service connection for laryngeal cancer is denied. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt standard does not apply. See 38 U.S.C. § 5107; Gilbert, supra. Duties to Notify and Assist During the 2016 Board hearing, the Veteran made vague references to post-service treatment for throat symptoms with unspecified private medical providers. Thus, the Board granted his representative’s request to keep the record open for sixty days after the hearing to afford the Veteran an opportunity to submit additional evidence; however, he did not do so. The Veteran did not suggest that these private treatment records were relevant to the reasons why the Board denied the claims above. For example, he did allege that these unspecified private medical providers related his laryngeal cancer to service in any way. Nor did he contend that these private treatment records would show a current diagnosis of esophageal cancer or throat cancer that is distinct from his established diagnosis of laryngeal cancer. Thus, a remand is unwarranted to obtain these unspecified private treatment records because they would not be pertinent to the claims denied herein. In addition, the Veteran submitted a release in February 2014 identifying a private medical provider. In December 2015, the RO sent him a notice informing him that due to a change in privacy law, the 2014 release form was no longer valid. Accordingly, the RO requested another release. However, he did not respond. Moreover, the Veteran consistently stated that his diagnosis and treatment of laryngeal cancer beginning in summer 2013 was through VA. See, e.g., 2016 Board testimony; April 2014 NOD; December 2013 supplemental claim. His VA outpatient treatment records pertinent to the claims decided herein are of record. In summary, the Board finds that the duty to assist in obtaining pertinent medical records has been satisfied. Furthermore, the Veteran’s representative suggested that the 2016 VA medical opinion was inadequate for failure to consider Camp Lejeune water contamination as a possible risk factor for his laryngeal cancer. See October 2018 brief. (His prior representative, a different Veterans Service Organization, also challenged the adequacy of the VA medical opinions. See 2016 Board hearing transcript and March 2016 briefs.) However, his current representative appears not to have considered the negative 2014 VA medical opinion cited above, which expressly considered the Veteran’s conceded exposure to contaminated water at Camp Lejeune, and other pertinent risk factors. The Board rejects this contention and affirmatively finds that both the 2014 and 2016 negative VA medical opinions relied upon in this decision were adequate. They were prepared by competent medical professionals, based on accurate reviews of the Veteran’s record and medical history, and had sufficient medical rationales. Thus, the Board finds there is no duty to provide another VA medical opinion.   Neither the Veteran nor his representative has raised any other duty to notify or duty to assist issues. 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). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel