Citation Nr: 18154607 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-21 412 DATE: November 30, 2018 ORDER Entitlement to service connection for bladder cancer is granted. FINDINGS OF FACT 1. The Veteran’s record placed him at Camp Lejeune, North Carolina from January 1969 to May 1969. 2. The Veteran has a current diagnosis of bladder cancer. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, bladder cancer was incurred as a result of service. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1968 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing in November 2018. A transcript of the hearing is associated with the claims file. The Veteran submitted additional evidence in support of his claim after the most recent Statement of the Case (SOC) of March 2016. During the November 2018 hearing with the undersigned VLJ, the Veteran with his representative waived review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 19.37, 20.800, 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Veterans Claims Assistance Act of 2000 (VCAA) The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The appeal decided herein has been considered with respect to VA’s duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of this issue, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. Service Connection for Bladder Cancer Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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 or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). On January 13, 2017, to take effect on March 14, 2017, the Department of Veterans Affairs (VA) amended its adjudication regulations regarding presumptive service connection, adding certain diseases associated with contaminants present in the base water supply at U.S. Marine Corps Base Camp Lejeune (Camp Lejeune), North Carolina, from August 1, 1953, to December 31, 1987. This final rule establishes that veterans, former reservists, and former National Guard members, who served at Camp Lejeune for no less than 30 days (consecutive or nonconsecutive) during this period, and who have been diagnosed with any of eight associated diseases, are presumed to have incurred or aggravated the disease in service for purposes of entitlement to VA benefits. This amendment implements a decision by the Secretary of Veterans Affairs that service connection on a presumptive basis is warranted for claimants who served at Camp Lejeune during the relevant period and for the requisite amount of time and later develop certain diseases. 82 Fed. Reg. 4173 (January 13, 2017). The question in this case is whether the Veteran is entitled to a presumption of exposure to contaminants in the water supply at Camp Lejeune, North Carolina, based on service there in a qualifying period. If so, service connection for his bladder cancer may be granted on the basis that bladder cancer is presumed to be the result of in-service exposure to contaminants in the water supply at Camp Lejeune. A veteran, or former reservist or member of the National Guard, 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, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307(a). If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): kidney cancer, liver cancer, non-Hodgkins lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia, and bladder cancer. 38 C.F.R. § 3.309(f). The diseases listed in § 3.309(f) 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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran asserts that he is entitled to service connection for his bladder cancer, to possibly include as due to herbicide agent exposure in Vietnam or other chemical agents. The Board notes from VA and Social Security medical records that the Veteran was initially diagnosed with a bladder tumor in November 2011, and which was recharacterized as bladder cancer in May 2012. Thus, the requirement for a current disability is established. Pursuant to the Veteran’s assertion that he was exposed to herbicide agents in Vietnam, the Board notes the Veteran served in the Republic of Vietnam from September 1969 to March 1970, and his awards and decorations include the United States Marine Corps Combat Action Ribbon. However, the Board also notes that the Veteran’s claimed disability of bladder cancer is not one of the diseases associated with herbicide exposure in Vietnam for purposes of the presumption of service connection. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). In the alternative, the Board also notes from the Veteran’s military personnel records that the Veteran served at Camp Lejeune, North Carolina from January 4, 1969 to May 19, 1969. As such, the Board finds the Veteran’s service at Camp Lejeune during this period to be qualifying pursuant to 38 C.F.R. § 3.307(a)(7) and the Veteran shall be presumed to have been exposed during such service to the contaminants in the water supply there. 38 C.F.R. § 3.307(a). Diseases associated with exposure to contaminants in the water supply at Camp Lejeune include bladder cancer. See 38 C.F.R. § 3.309(f). Such diseases, to include bladder cancer, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(7) are met, even though there is no record of the disease during service. Id. The Board notes from the medical records in the claims file that following the May 2012 surgery for his bladder cancer, a stoma was installed to provide for the voiding of urine. The appropriate Diagnostic Code 7529 calls for the disability to be rated as a voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115a, Ratings of the Genitourinary System – Dysfunctions, provides for a 60 percent rating where a post-surgical urinary diversion has been performed. The Board is thus satisfied that the Veteran has met the legal requirement that a claimant is presumed to have been exposed to contaminants in the water at Camp Lejeune if a listed disease has manifested to a degree of 10 percent disabling or more, without affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(f). Therefore, as the Veteran was present at Camp Lejeune during the relevant timeframe for greater than the requisite 30 days, he is presumed to have been exposed to contaminants in the water supply there. 38 C.F.R. § 3.307. In addition, he has been shown to have bladder cancer which has manifested to a compensable degree, and VA has found that there is a link between contaminants in the water supply at Camp Lejeune and bladder cancer. As such, service connection for bladder cancer is granted. 38 U.S.C. §§ 1110, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel