Citation Nr: 18151823 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-14 851 DATE: November 20, 2018 ORDER Entitlement for service connection for lung cancer is denied. REMANDED Entitlement to service connection for post-traumatic stress disorder is remanded. FINDING OF FACT The Veteran’s currently diagnosed lung cancer is not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for lung cancer have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty from September 1973 to March 1973, and May 1973 to May 1975. This case comes before the Board of Veteran Appeals (Board) on appeals from May 2015 and April 2016 rating decisions issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In January 2018, the Veteran filed his substantive appeal, and simultaneously waived his right to a hearing before the Board. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: “(1) evidence 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 or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA regulations provide that a veteran who had at least 30 days of active military service at United States Marine Corps Base Camp Lejeune between August 1953 and December 1987 shall be presumed to have been exposed to the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride in the base water supply unless there is affirmative evidence to establish that the Veteran was not exposed. 38 C.F.R. § 3.307(a)(7). Certain diseases are deemed to be associated with contaminated water exposure for the purposes of service connection under current law. The list of those diseases includes kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). In deciding any matter on appeal, the Board must consider all evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 7104(a); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). This includes all lay and medical evidence. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Furthermore, a claim may be denied only if the evidence preponderates against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996) (citing Gilbert, 1 Vet. App. at 54). Entitlement to service connection for lung cancer The Veteran contends that his lung cancer is service connected. Specifically, the Veteran maintains that the exposure to contaminated water at Camp Lejeune caused his lung cancer. Upon a review of the evidence of record, the Board concludes that the Veteran is not entitled to service connection. As an initial matter, to be entitled to any compensation the Veteran must establish a current disability. “In absence of proof of a present disability, there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran’s VA treatment records confirm that he was diagnosed with lung cancer in July 2015. Therefore, the first requirement for service connection has been satisfied. See Principi, 381 F.3d at 1167. Service personnel records (SPRs) confirm that the Veteran was stationed at Camp Lejeune for a period at least 30 days within the August 1973 and December 1987 timeframe. Therefore, the Board presumes that the Veteran was exposed to contaminated water. 38 C.F.R. § 3.307(a)(7). Lung cancer, however, is not a disease that was deemed to be associated with contaminated water exposure for the purposes of service connection, thus, a presumption of service connection is not warranted. 38 C.F.R. § 3.309(f). The fact that a veteran does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. A claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, after a review of the available evidence of record, the Board concludes that direct service connection for the Veteran’s lung cancer is also not warranted. First, there is no evidence of lung cancer in service. Service treatment records (STRs) are silent on this issue. There are no indications of any issues with the Veteran’s lungs at his entrance and exit examinations. Furthermore, there are no medical opinions directly linking his lung cancer with service. In the Veteran’s VA treatment records from 2003, he was identified as a smoker. In 2014, the Veteran reported that he quit smoking in 2013, however, he also admitted that he smoked on occasion. Additionally, the Veteran reported that he began smoking in his 20s. The Board finds these reports to be significant. The Board also finds the November 2017 VA examination report is to be highly probative. In that report, the VA examiner noted that the Veteran “has extensive lung cancer risk factors” which included, inter alia, smoking ¼ to 1 pack of cigarettes a day for 25 years prior to being diagnosed with cancer, and exposure to second hand smoke during childhood. See 2017 VA Examination at 2. Because of these and other risk factors, the VA examiner opined that “[t]here is insufficient consistent evidence, after a review of the literature [,] to support an ‘at least as likely as not’ link between exposures to [Camp Lejeune contaminated water and the causation of lung cancer.” The examiner also concluded that “the main punitive risk factor for the Veteran’s lung cancer was his long-term history of tobacco abuse.” In drawing this conclusion, the VA examiner referred to the Veteran’s claims file, and various scientific studies. See id. at 3. The Board acknowledges that the Veteran is competent to report symptoms related to his lung cancer, and assigned credibility to those reports. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is not competent, however, to offer an opinion as to the etiology of lung cancer due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). While the Board is sympathetic to the Veteran’s claim, considering all the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran’s lung cancer and his military service. Accordingly, the Board finds that the claim of entitlement to service connection for lung cancer must be denied. REASONS FOR REMAND Entitlement to service connection for post-traumatic stress disorder is remanded. In an April 2015 memorandum, it was determined that the information required to corroborate the stressful events described by the Veteran were insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) coordinator. Since the memorandum was issued, sufficent information has been provided by the Veteran. In his April 2016 statement in support of claim, the Veteran claimed that he witnessed traumatic events while in Vietnam, Cuba, and “the Rock” (Okinawa). The Veteran also described seeing men shot at, and “legs blown off” and the “inside showing.” See April 2016 Statement in Support of Claim. On Veteran’s Disability Benefits Questionnaire from October 2016, the VA clinician noted that the Veteran’s stressors included “numerous combat trauma accidents,” and “intrusive memories of combat.” Finally, in the Veteran’s written statement, dated February 2017, he stated that he was attached to the 2nd Battalion, 8th Marines that was sent to Okinawa, and subsequently Hanoi. He also indicated that he was on a ship bound for Cuba at either the end of 1974 or early 1975. See February 2017 Statement. Here, the Board finds that the Veteran provided sufficient information regarding the date, location and description of this alleged in-service stressor. Thus, the JSRRC should be requested to verify whether such incident, as identified in the Veteran’s statement, occurred. If such incidents are verified the Veteran should be scheduled for a VA examination to assess the nature and etiology of his PTSD. The matter is REMANDED for the following action: 1. Attempt to corroborate the Veteran’s in-service stressors. If more details are needed, contact the Veteran to request the information. 2. If stressors are corroborated, then schedule a VA examination for the Veteran to determine the nature and etiology of PTSD. The examiner should review the claims file in its entirety. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (Continued on the next page)   3. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, a supplemental statement of the case (SSOC) should be issued to the Veteran and his representative, and they should be given an appropriate amount of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B.Y. Nguyen, Law Clerk