Citation Nr: 18151072 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-35 419A DATE: November 16, 2018 ORDER Service connection for prostate cancer is denied. An effective date earlier than March 14, 2017, for the grant of service connection for kidney cancer is denied. FINDINGS OF FACT 1. The Veteran had active service from October 1970 to August 1974. 2. The Veteran was stationed at Camp Lejeune from April to October 1971. 3. The Veteran was diagnosed with prostate cancer in 2013; prostate cancer is not related to active service, including any claimed in-service risk factors. 4. The Veteran was diagnosed with kidney cancer in 2013; kidney cancer was added to the list of diseases associated with exposure to contaminants present in the water supply at Camp Lejeune on March 14, 2017. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by service nor can it be presumed to be the result of service. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Entitlement to service connection for kidney cancer arose on March 14, 2017, the date that the law was amended to add kidney cancer to the list of diseases associated with contaminants present in the water supply at Camp Lejeune. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.114, 3.307, 3.309, 3.400 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, in May 2018, the Board remanded the Veteran’s appeals for entitlement to service connection for hypertension, and gastrointestinal, skin, and heart disorders. It appears that the regional office (RO) is still working to comply with the remand directives. As such, the Board will not take action on these pending claims and at this time advises the RO to continue following the remand directives. In July 2018, the Veteran filed a timely notice of disagreement (NOD) with a June 2018 rating decision that denied claims for increased rating for left and right hip disabilities. These appeals have been entered in the VACOLS appeals tracking system as an active appeal at the RO. The RO has fully acknowledged the NOD and is currently in the process of adjudicating the claims. As action by the Board could delay the RO’s action on those appeals, the Board will not take jurisdiction of those issues at this time. Additionally, in October 2018, he filed another timely NOD with a November 2017 rating decision that denied TDIU and reduced the rating of his cervical spine disability. As the RO has not yet processed the NOD, the Board will not take action on the pending NOD at this time. Based on the above, the only two issues currently pending before the Board are service connection for prostate cancer and the effective date for the grant of service connection for kidney cancer. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. 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, North Carolina, from August 1, 1953, to December 31, 1987. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at U.S. Marine Corps Base Camp Lejeune, North Carolina for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Service Connection for Prostate Cancer First, the Veteran has been diagnosed with prostate cancer. Specifically, an October 2013 biopsy was positive for prostate cancer and a current disorder is shown. As to in-service incurrence, while the Veteran served during the Vietnam Era, his DD-214 does not reflect any foreign service; therefore, he was not exposed to herbicides and service connection on a presumptive basis is not warranted. Next, prostate cancer was not shown in service. Specifically, he was treated for multiple medical complaints but there were no complaints of, treatment for, or diagnosis of prostate cancer. Further, the Veteran has related that he was not diagnosed with prostate cancer until 2013, nearly 40 years after discharge. Therefore, the evidence does not support an in-service incurrence. Further, malignant tumors are listed as a chronic disease under § 3.309(a); however, as noted, prostate cancer was not shown in service. In addition, prostate cancer was not shown to be continuous since service as it was not diagnosed until 2013, and the disorder did not manifest itself to a degree of 10 percent or more within a year of separation from service. Therefore, presumptive service connection under § 3.309(a) is not warranted. The Veteran’s primary contention is that prostate cancer was caused by exposure to contaminated water at Camp Lejeune. Turning to the merits, he has confirmed service at Camp Lejeune from April to October 1971. Further, prostate cancer has been diagnosed; however, prostate cancer is not included in the list of diseases associated with exposure to contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309(f). Therefore, the second element of presumptive service connection based on contaminated water at Camp Lejeune has not been met. Even though prostate cancer is not a listed disease, the Veteran may still show the disability is directly related to the contaminant exposure by providing evidence of a nexus. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In support of the claim, he submitted a letter from a private physician, Dr. DR, who opined that one of the highest risk factors for developing prostate cancer was trichloroethylene (TCE) exposure. Since the Veteran was exposed to high levels of TCE at Camp Lejeune, Dr. DR requested that the claim for service connection be reconsidered. On the other hand, a January 2014 VA examiner explained that it was far more likely that the Veteran’s age was the cause of his prostate cancer. The examiner reasoned that the CDC showed increasing age to be the leading risk factor for prostate cancer. She remarked that a review of medical literature showed that the factor of age outweighed the limited/suggestive evidence for an association between exposure to water contaminants and the development of prostate cancer. In an August 2018 VA examination, the examiner concluded that the Veteran’s prostate cancer was less likely than not caused by or a result of exposure to contaminated water at Camp Lejeune for three reasons. First, the examiner explained that Dr. DR’s opinion was found to be of minimal probative value because he made demonstrably false statements. For example, the examiner noted that Dr. DR claimed that one of the highest risk factors for developing prostate cancer was TCE exposure, but widely available medical literature did not show any link between TCE and prostate cancer. Second, the examiner stated that the high prevalence of prostate cancer in the general population went against Camp Lejeune contaminated water contributing to the pathogenesis of this disorder in any significant manner. Last, the examiner noted that the Veteran’s age was the single biggest risk factor for his development of prostate cancer. These opinions are highly probative and given more weight than Dr. DR’s opinion. Dr. DR never directly linked water contaminate exposure to the Veteran’s prostate cancer but rather only indicated that the Veteran was exposed to TCE and requested that the claim be reconsidered. On the other hand, the VA examiners reviewed the claims file and referenced medical literature in definitively finding that there was no connection between contaminated water exposure at Camp Lejeune and the Veteran’s diagnosis. Therefore, the weight of the medical evidence does not support the claim. The Board has considered the Veteran’s lay statements that his prostate cancer was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current prostate cancer due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Earlier Effective Date for Kidney Cancer The Veteran is currently seeking entitlement to an effective date earlier than March 14, 2017, for his service connected kidney cancer. The RO awarded the current effective date because March 14, 2017, was the date that the law was changed to add kidney cancer as a condition presumed to be associated with exposure to chemicals at Camp Lejeune. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, (1996), aff’d, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). Because the Veteran’s claim was filed many years after he was discharged from service, as a general matter, the effective date would be the date of receipt of the claim, as that is later than the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, as noted above, a liberalizing law applies and the criteria for retroactive payment pursuant to 38 C.F.R. § 3.114 are applicable. Treatment records indicate that the Veteran was diagnosed with kidney cancer in 2013 and underwent surgery for his condition in November 2013. Based on this evidence, he met all eligibility criteria for service connection for kidney cancer, specifically, a diagnosis of kidney cancer, on the effective date of the liberalizing law that allows presumptive service connection for kidney cancer based on exposure to chemicals at Camp Lejeune. Although the Veteran has argued for an earlier effective date, an effective date prior to March 14, 2017, is legally precluded. The controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Here, there is no dispute. Even though the Veteran’s kidney cancer was diagnosed in 2013 and the original claim was filed in October 2013, entitlement did not arise until March 14, 2017, when kidney cancer was added to the list of presumptive conditions associated with Camp Lejeune. Thus, the later of the two dates is the appropriate effective date in this case and the appeal for an earlier effective date is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Kokolas, Associate Counsel