Citation Nr: 18151813 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-46 611 DATE: November 20, 2018 ORDER 1. Service connection for renal cell carcinoma is granted, subject to the regulations governing payment of monetary awards. 2. Service connection for a lumbar spine disability, as secondary to renal cell carcinoma, is granted, subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. In 2008, the Veteran received a diagnosis of renal cell carcinoma, for which he underwent a left radical nephrectomy; in 2013, diagnostic testing revealed him to have extensive metastatic disease to the lumbosacral spine. 2. Resolving reasonable doubt in the claimant’s favor, the Veteran’s renal cell carcinoma was at least as likely as not related to his presumed exposure to contaminated water at Camp Lejeune. 3. The Veteran’s lumbar spine disability was proximately due to his service-connected renal cell carcinoma. CONCLUSIONS OF LAW 1. Service connection for renal cell carcinoma is warranted. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). 2. Service connection for a lumbar spine disability, claimed as secondary to renal cell carcinoma, is warranted. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the U.S. Marine Corps Reserve (USMCR) from October 1963 to April 1964, with additional subsequent periods of ACDUTRA in the USMCR. He died in February 2017, and the appellant is his surviving spouse. She has been substituted as the claimant in these matters, pursuant to 38 U.S.C. § 5121A, as acknowledged by the VA in a September 2017 letter. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 Department of Veterans Affairs (VA) rating decision. A May 2017 rating decision granted the appellant Dependency and Indemnity Compensation (DIC), finding that service connection for the cause of the Veteran’s death (due to pneumonia and renal cell carcinoma) was warranted. A June 2017 award letter also notified her that her claim for accrued benefits was denied, finding that the VA did not owe the Veteran any money at the time of his death. As noted above, the appellant is pursuing these service connection claims as a substituted claimant (proceeding in place of the deceased Veteran to the completion of the original claim), rather than for the purpose of accrued benefits. The distinction is significant as she takes the Veteran’s claim as it stood on the date of his death (which allows for further development of the record/submission of additional evidence in support of the claims, whereas with an accrued benefits claim, the record is closed as of the date of the Veteran’s death. Here, in May 2018 the appellant, through her attorney, submitted written argument and a medical opinion, with a waiver of initial RO consideration. 1., 2. Service connection for renal cell carcinoma, and for a lumbar spine disability, as secondary to renal cell carcinoma The appellant contends that exposure to contaminated water at Camp Lejeune in 1964 ultimately led to the Veteran’s development of renal cell carcinoma, which metastasized to his lumbar spine and caused further disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability first diagnosed after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In 2012 Congress enacted legislation, authorizing VA to provide medical services for 15 specific illnesses to certain veterans as well as their eligible family members, who were stationed at Camp Lejeune from January 1, 1957 to December 31, 1987. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, § 102, Pub. L. 112-154, 126 Stat. 1165 (2012) (codified at 38 U.S.C. § 1710). Effective March 14, 2017, the regulatory provisions of 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases found to be associated with certain contaminants present in the water supply at Camp Lejeune. Essentially, as amended, these provisions establish presumptive service connection for veterans who served at Camp Lejeune for no less than 30 days (consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987, and who have been diagnosed with any of the following eight diseases, even though there is no record of such disease during service: kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer (emphasis added). 38 C.F.R. §§ 3.307(a), 3.309(f). Such listed diseases shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). Service incurrence of a listed disease is rebuttable by any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. “Affirmative evidence to the contrary” need not require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). Further, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service records clearly show that the Veteran had ACDUTRA service from October 1963 to April 1964, which included service at Camp Lejeune from January 11, 1964 to April 23, 1964. Thus, his exposure to known contaminants in the water supply there during that period is presumed. However, the regulations providing for entitlement to service connection for kidney cancer on a presumptive basis due to contaminated water were not made effective until March 14, 2017, which is just after the Veteran’s death in February 2017. Thus, they do not constitute a basis for awarding service connection under 38 C.F.R. §§ 3.307(a), 3.309(f). The Board notes that in a February 2018 statement, the appellant’s attorney, citing to a Federal Circuit Court decision in 2002, argued that the date of issuance of the presumptive regulations in January 2017, and not the “operative” date in March 2017, was effective date determinative. For reasons that the Board will not expound upon, this argument is not persuasive. In any case, the attorney’s subsequent argument in May 2018 involving a theory of entitlement on a direct service connection basis is convincing, and would ultimately accord the appellant greater monetary benefits than would have been warranted if the claim was proven on a presumptive service connection basis. Upon review of the service records, medical records, and lay statements, the Board concludes that the evidence is in relative equipoise as to whether the Veteran had a current diagnosis of metastatic renal cell carcinoma that is related to his exposure to Camp Lejeune contaminated water, and that with resolution of reasonable doubt in his favor, service connection for renal cell carcinoma is warranted. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(d). Further, the Board also concludes that the Veteran’s diagnosed lumbar spine disability was caused by metastasis of the renal cell carcinoma, and therefore service connection on a secondary basis is warranted. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). It is not in dispute that in 2008, the Veteran received a diagnosis of metastatic renal cell carcinoma, clear cell type. Private medical records indicate that he presented in January 2008 with dyspnea on exertion and fatigue, and an ECG showed a cardiac mass, which necessitated cardiac surgery. The mass was a tumor thrombus that originated from a left renal cell carcinoma up his inferior vena cava. In March 2008, he underwent a left radical nephrectomy and removal of the tumor from the inferior vena cava. In January 2012, he was hospitalized for recurrent renal cell carcinoma. A December 2013 lumbar spine MRI disclosed extensive metastatic disease to the lumbosacral spine, with osseous, epidural, and left paraspinal tumor involvement. An August 2015 CT of the abdomen and pelvis revealed that the renal cell carcinoma had metastasized within the liver. The record contains conflicting evidence regarding whether the Veteran’s renal cell carcinoma and its metastasis in the lumbar spine are etiologically related to disease or injury during his ACDUTRA service. The Veteran is presumed to have been exposed to contaminated water at Camp Lejeune. Various private and VA opinions differ on whether the claimed disabilities resulted from such exposure. In an April 2015 statement, the Veteran’s treating oncologist, N.H., M.D., acknowledged that the Veteran had been a Marine stationed at Camp Lejeune in the early to mid-1960s, during a “water contamination problem” and opined that it was “as likely as not that this contamination contributed to his getting kidney cancer.” The opinion was not accompanied by any foundation or rationale, so a VA opinion was sought. In November 2015, a VA examiner, R.T., M.D., MPH, (a member of a subject matter expert panel pertaining to Camp Lejeune contaminated water project cases) concluded that the Veteran’s renal cell carcinoma was not caused by or the result of his exposure to contaminated water at Camp Lejeune. He discussed several risk factors for the development of kidney cancer, including smoking, high blood pressure, workplace exposures, obesity, hereditary factors, gender, race, and age, and he cited to medical studies and literature. His opinion was “to a reasonable degree of medical certainty,” and it was based on currently available literature, as well as the Veteran’s hypertension, former smoking history (he quit in the late 1960s), gender, “estimated small magnitude of his potential solvent exposure” at Camp Lejeune, the “extremely short time” he was at Camp Lejeune (i.e., less than four months), and his age at the time of diagnosis. In April 2018, a private physician, J.W., M.S., Ph.D., (a pharmacologist and toxicologist with more than 40 years in research and 25 years in teaching) rendered an opinion regarding the etiology of the Veteran’s renal cell carcinoma, concluding that it was at least as likely as not that the Veteran’s renal cancer was due to exposure to groundwater contaminants while at Camp Lejeune, which had triggered the eventual development of cancer, and that it was at least as likely as not that his lumbar spine “damage” developed secondary to his renal cancer as a result of metastasis. He discussed the types of volatile organic compounds found in the groundwater at Camp Lejeune, how they lead to carcinogenesis on a cellular level, the reasons for his disagreement with the VA examiner’s opinion, and pertinent and supporting medical studies. He found that the Veteran was exposed to certain chemicals that are shown (and known) to produce mutagenic changes and/or carcinogenesis by various mechanisms decades after exposure, and that his type of cancer exceeded the VA’s “30-day standard” in terms of exposure duration. In evaluating the conflicting opinions as to the etiology of the renal cell carcinoma, the Board finds that the reports are credible and authored by competent evaluators. That is, there is no evidence to suggest that the private or VA examiners are not qualified through education, training, and experience to offer a medical nexus opinion. Therefore, the Board must assess the probative value of the medical opinions, considering whether greater weight may be placed on one opinion over another depending on factors such as reasoning employed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The November 2015 VA examiner and the April 2018 private physician had access to pertinent records in the claims file, whereas the Veteran’s private treating oncologist was the only one to have personally examined the Veteran. The VA examiner and the 2018 private examiner documented the Veteran’s medical history and complaints, and provided findings with rationale that included citation to facts in the record and current medical literature. The treating physician, however, provided an opinion with no rationale, and as such the foundation of the opinion is not known and therefore its probative value is necessarily diminished considerably. Nevertheless, it is noteworthy that she did not discount the possibility that the Veteran’s renal cell carcinoma was attributable to toxic chemical exposures several decades earlier. In considering the remaining two opinions, it is noteworthy that the conclusion of the VA examiner, who found the factors pertaining to the amount and duration of solvent exposure at Camp Lejeune to be particularly influential, preceded the amendments to 38 C.F.R. §§ 3.307 and 3.309, effective in March 2017. In promulgating the new regulations, VA recognized kidney cancer as being associated with certain contaminants present in the water supply at Camp Lejeune for veterans who served there for at least 30 days. In the notice of proposed rulemaking in September 2016 (81 FR 62419) and notice of final rule in January 2017 (82 FR 4173), VA discussed the 30-day exposure requirement and acknowledged that the available scientific evidence did not provide data on levels of exposure associated with each condition. The Veteran’s potential exposure level at Camp Lejeune was just under four months, and this fact was not a disqualifying one for the private evaluator in 2018. While he did not discuss all the risk factors, such as age, gender, smoking history, and other health concerns as the VA examiner had, he focused on the likely mechanisms by which toxic chemicals in the water supply at Camp Lejeune caused cancer in the Veteran decades later. Furthermore, in regard to risk factors for the Veteran, the VA examiner conceded that there was inadequate evidence about any family history of renal disease, the Veteran’s body habitus (i.e., whether he was obese prior to diagnosis), any history of nephrolithiasis (because kidney stones were noted as a significant risk factor in the development of renal cell carcinoma), and to what extent, if any, the Veteran had solvent or second-hand smoke exposures in one of his civilian jobs working at Mr. Good Wrench. In short, the Board finds that the evidence is in equipoise regarding whether the Veteran’s renal cell carcinoma is etiologically related to his service via exposure to contaminated water at Camp Lejeune. When this occurs, the reasonable doubt doctrine (cited above) requires resolution of the matter in the claimant’s favor. Further, given that the private medical treatment records and the April 2018 private opinion clearly show that the Veteran’s lumbar spine disability was the result of metastases of the renal cell carcinoma, secondary service connection for the lumbar spine disability is also warranted. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel