Citation Nr: 18147981 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 15-37 319 DATE: November 8, 2018 ORDER The claim of entitlement to service connection for liver cancer, to include as due to exposure to contaminated water at Camp Lejeune is denied. The claim of entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune is denied. The claim of entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune is denied. FINDINGS OF FACT 1. The Veteran served at Camp Lejeune from July 16, 1960, through August 22, 1960. 2. According to the October 2018 Outside Medical Opinion, primary liver cancers are “never” adenocarcinomas; in the present case, the Veteran’s liver cancer has been diagnosed as an adenocarcinoma. According to the physician, this is the result of metastasis from his colon cancer, which is not service-connected. 3. The Veteran’s metastatic liver cancer did not manifest during active service, within one year of his separation from active service, and is not otherwise related to his active service or his presumed exposure to contaminated water at Camp Lejeune. 4. The Veteran’s prostate cancer did not manifest during active service, within one year of his separation from active service, and is not otherwise related to his active service or his presumed exposure to contaminated water at Camp Lejeune. 5. The Veteran’s colon cancer did not manifest during active service, within one year of his separation from active service, and is not otherwise related to his active service or his presumed exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for liver cancer, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably, with active duty service in the United States Marine Corps from March 1960 through May 1964. In keeping with the duty to assist the Veteran in substantiating his claim, pursuant to 38 C.F.R. § 5103A(d), the Board sought an outside medical opinion, which was returned in October 2018. Any unresolved questions requiring medical expertise having been resolved, the claims on appeal may proceed to adjudication. Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that “shown as such in service” means “clearly diagnosed beyond legitimate question”). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39. The law provides a presumption of service connection for certain diseases, including liver cancer, as associated with exposure to exposure to contaminants in the water supply at Camp Lejeune, subject to rebuttable presumption provisions. See 38 C.F.R. §§ 3.307, 3.309(f). Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). 1. The claim of entitlement to service connection for liver cancer, to include as due to exposure to contaminated water at Camp Lejeune. is denied. The Veteran seeks service connection for liver cancer, and contends this is related to contaminated water at Camp Lejeune. The records show the Veteran was stationed at Camp Lejeune from July 16, 1960 through August 22, 1960. See Military Personnel Record. As this is a period of time greater than 30 days, the Veteran is entitled to the legal presumption that he was exposed to the contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). The Veteran has metastatic liver cancer. A May 2015 VA examination summarized the Veteran’s pertinent health history. The physician noted the Veteran was diagnosed with prostate cancer by biopsy in May 2007 at age 69. He was diagnosed with a tubular adenomatous polyp on colonoscopy of January 2009. He was diagnosed with adenocarcinoma of the colon with metastases to the liver by pathology specimen of March 2009 at age 71. The record contains a March 2018 Nexus Statement from an oncologist, who opined that the Veteran’s colon, prostate, lung, and liver cancer were related to an onset or events while in service, noting that the Veteran’s “exposure and consumption of hazardous material likely contributed to his multiple cancer conditions.” This opinion is extremely sparse—there is no detail or indication as to how the clinician arrived at this opinion. To resolve any ambiguities in the record, a medical opinion from an oncologist was requested by the Board regarding whether it was at least as likely as not that exposure to contaminated drinking water at Camp Lejeune caused or aggravated the Veteran’s liver cancer, and asked for clarification as to whether non-metastatic liver cancer is clearly distinguishable from metastatic liver cancer. The responsive October 2018 Oncology Medical Advisory Opinion (“OMAO”) responded that the Veteran does not have liver cancer—primary liver cancers are never “adenocarcinomas,” such as the Veteran’s testing revealed, which is consistent with the Veteran’s history of colon cancer. After consideration, the positive March 2018 Nexus Statement cannot be given any significant weight, as the methodology leading to the positive association was not shown. The Veteran is not shown in the record to be competent to provide an opinion regarding the etiology of his cancer conditions. See Jandreau v. Nicholson, 492 F.3d at 1374 (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). The competent and credible medical evidence establishes that the etiology of the Veteran’s metastatic liver cancer is exclusively tied to his colon cancer, and not to the claimed exposure to contaminated water at Camp Lejeune. While liver cancer is a disease that is subject to presumptive service connection as related to Camp Lejeune under 38 C.F.R. § 3.309(f), cancer due to metastasis is distinguishable from primary cancer: metastatic cancer suggests an origin at a different site. To the extent that any presumption would still apply, the medical evidence indicating that primary liver cancers are never adenocarcinomas is unrebutted in the record, and since it is accepted as competent and credible, this opinion is dispositive as to any relationship between the diagnosed condition and the presumed contaminant exposure. See 38 C.F.R. § 3.309(f) (all listed diseases are subject to the rebuttable presumption provisions of § 3.307(d)). Secondary service connection was considered, but as discussed infra, the Veteran’s colon cancer is not entitled to service connection. As metastasis from the colon cancer (a non-service connected condition) was the sole cause of the Veteran’s liver cancer, it does not qualify for secondary service connection under 38 C.F.R. § 3.310. The evidence preponderates against the claim, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53. 2. The claim of entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. The Veteran seeks service connection for prostate cancer, and contends such is related to contaminated water at Camp Lejeune. As noted above, the Veteran is entitled to be presumed to have been exposed to the contaminants in the water supply due to his service at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). A May 2015 VA examination summarized the Veteran’s pertinent health history. The physician noted the Veteran was diagnosed with prostate cancer by biopsy in May 2007 at age 69. The VA examiner noted review of the Veteran’s file, discussed the relevant literature, and provided an opinion that relevant medical literature shows that increasing age is the leading risk factor for prostate cancer, which outweighs the limited and suggestive evidence for an association between the cancer to water contaminants at Camp Lejeune. The studies of suggestive evidence to the contrary were noted not to allow for conclusions of association beyond random chance. The record contains a March 2018 Nexus Statement from an oncologist, who opined that the Veteran’s colon, prostate, lung, and liver cancer were related to an onset or events while in service, explaining that the Veteran’s “exposure and consumption of hazardous material likely contributed to his multiple cancer conditions.” The Board requested a medical opinion from an oncologist regarding whether it was at least as likely as not that exposure to contaminated drinking water at Camp Lejeune caused or aggravated the Veteran’s prostate cancer. The October 2018 Oncology Medical Advisory Opinion (“OMAO”) responded that there was no sound medical basis to extrapolate data from contaminated Camp Lejeune water with a possible association to prostate cancer. The physician opined that one of the most important facts in cancer etiology is repeated exposures with carcinogens, in high amounts and on chronic basis, over many years, which was not the case with the Veteran. The Board cannot give any significant weight to the cursory conclusions in the March 2018 Nexus Statement. There is no detail or indication as to how the clinician concluded there was a relationship between the claimed exposure and the prostate cancer. Generally, prostate cancer is not presumed under the law to be related to any level of exposure to contaminated water at Camp Lejeune. See 38 C.F.R. § 3.309(f). The passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue also weighs against the claimed causal connection. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). As the proponent of a hypothesis of cancer etiology, the Veteran has the ultimate burden to support the claimed connection, pursuant to 38 U.S.C. § 5107(a). A merely conclusory opinion by a physician, without showing a sound rationale therefore, does not meet this burden. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As noted above, the Veteran is not shown in the record to be competent to provide an opinion on the etiology of cancer. With regards to whether the duty to assist has been fulfilled, it is noted that the OMAO and the prior VA examination contain general summations of the existing medical research. Given the lack of support or rationale in the positive nexus evidence of record, these development steps are fully adequate. No further development on the claimed theory of causation is warranted under the duty to assist. 38 U.S.C. § 5103A(d). Weighing the evidence of record, the negative nexus opinions contained in the VA examination and OMAO are given greater weight than the March 2018 Nexus Statement. The evidence weighs against finding that it is at least as likely as not that the claimed condition is related to the claimed exposure. In sum, prostate cancer is not presumed to be related to exposure to the contaminated water supply at Camp Lejeune. The Veteran’s prostate cancer also did not manifest during active service, or until many years thereafter. The weight of the evidence otherwise preponderates against the claim of a relationship between the Veteran’s prostate cancer and the presumed exposure to contaminated water at Camp Lejeune. Thus, service connection for prostate cancer is not warranted. 38 C.F.R. §§ 3.303, 3.309. The evidence preponderates against the claim, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53. 3. The claim of entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. The Veteran seeks service connection for colon cancer, and contends such is related to contaminated water at Camp Lejeune. As noted above, the Veteran is entitled to be presumed to have been exposed to the contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). However, colon cancer is not on the list of diseases presumptively linked, under the law, to such exposure. 38 C.F.R. § 3.309(f). A May 2015 VA examination summarized the Veteran’s pertinent health history. The physician noted the Veteran was diagnosed with prostate cancer by biopsy in May 2007 at age 69. He was diagnosed with adenocarcinoma of the colon with metastases to the liver by pathology specimen of March 2009 at age 71. He was diagnosed with a tubular adenomatous polyp on colonoscopy of January 2009. The VA examiner discussed relevant medical literature, and noted that the Veteran’s known risk factors for colon cancer of adenomatous polyps and diabetes outweighed the limited or suggestive evidence of any association between exposure to contaminated water at Camp Lejeune and the development of colon cancer. The record contains a March 2018 Nexus Statement from an oncologist, who opined that the Veteran’s colon, prostate, lung, and liver cancer were related to an onset or events while in service, explaining that the Veteran’s “exposure and consumption of hazardous material likely contributed to his multiple cancer conditions.” The Board requested a medical opinion from an oncologist regarding whether it was at least as likely as not that exposure to contaminated drinking water at Camp Lejeune caused or aggravated the Veteran’s colon cancer. The October 2018 Oncology Medical Advisory Opinion (“OMAO”) responded that contaminated Camp Lejeune water did not cause the Veteran’s colon cancer. The physician opined that one of the most important facts in cancer etiology is repeated exposures with carcinogens, in high amounts and on chronic basis, over many years, which was not the case with the Veteran, who had potential exposure for 37 days. The Board cannot give any significant weight to the cursory conclusions in the March 2018 Nexus Statement. There is no detail or indication as to how the clinician concluded there was a relationship between the claimed exposure and the prostate cancer. Generally, colon cancer is not presumed under the law to be related to any level of exposure to contaminated water at Camp Lejeune. See 38 C.F.R. § 3.309(f). As the proponent of a hypothesis of cancer etiology, the Veteran has the ultimate burden to support the claimed connection, pursuant to 38 U.S.C. § 5107(a). A merely conclusory opinion, without showing a sound rationale therefore, does not meet this burden, and does not overcome the competent negative opinions of record. See Stefl v. Nicholson, 21 Vet. App. at 124. With regards to whether the duty to assist has been fulfilled, it is noted that the OMAO and the prior VA examination contain general summations of the existing medical research. Given the lack of support or rationale in the positive nexus evidence of record, these development steps are fully adequate. No further development on the claimed theory of causation is warranted under the duty to assist. 38 U.S.C. § 5103A(d). Weighing the evidence of record, the negative nexus opinions contained in the VA examination and OMAO are given greater weight than the positive opinion in the March 2018 Nexus Statement. The evidence weighs against finding that it is at least as likely as not that the claimed condition is related to the claimed exposure. In sum, colon cancer is not presumed to be related to exposure to the contaminated water supply at Camp Lejeune. The Veteran’s colon cancer also did not manifest during active service, or until many years thereafter. The weight of the evidence otherwise preponderates against the claim of a relationship between the Veteran’s colon cancer and the presumed exposure to contaminated water at Camp Lejeune. Thus, service connection for colon cancer is not warranted. 38 C.F.R. §§ 3.303, 3.309. The evidence preponderates against the claim, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel