Citation Nr: 1817795 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 15-35 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a respiratory disability, claimed as lung cancer, to include as due to contaminated water exposure at Camp Lejeune. 2. Entitlement to service connection for diabetes. 3. Entitlement to service connection for a heart disability. 4. Entitlement to service connection for residuals of removal of the gallbladder, claimed as due to contaminated water exposure at Camp Lejeune. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from March 1954 to March 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2014 (lung cancer) and February 2017 (diabetes, heart, gallbladder) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction rests with the RO in St. Petersburg, Florida. In February 2018, the Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge. A transcript this hearing is associated with the claim file. The Board has recharacterized the Veteran's claim for service connection for lung cancer broadly, as any respiratory disability, however diagnosed. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). Additional evidence was received by VA subsequent to the most recent, August 2015 statement of the case issued for the appeal herein. Specifically, such includes additional private medical records, additional VA treatment records, an October 2014 prior Board decision as evidence and a February 2016 hearing loss and tinnitus and disability benefits questionnaire. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. See 38 C.F.R. § 20.1304 (c) (2017). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See VBA Fast Letter 14-02. Here, although the Veteran's substantive appeal for the relevant issue was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the entirety of the additional evidence was submitted by the Veteran. Nevertheless, as the additional evidence is either duplicative or not relevant to the Veteran's claim decided herein, there is no prejudice to the Veteran in this regard. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The issues of entitlement to service connection for diabetes, for a heart disability, and for removal of the gallbladder as due to contaminated water exposure at Camp Lejeune, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The most probative evidence of record does not establish that the Veteran's current respiratory disability, best characterized as residuals of lung cancer, manifested in service, arose within one year of separation from service, or was the result of any injury, disease, or event during active service, to include the presumed exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, best characterized as residuals of lung cancer, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions, including pursuant to 38 C.F.R. § 3.103 (c)(2) (2017) and Bryant v. Shinseki, 23 Vet App 488 (2010). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends a respiratory disability, claimed as lung cancer, is due to contaminated water exposure at Camp Lejeune. Specifically, in February 2018 testimony, the Veteran linked his lung cancer to drinking contaminated water at Camp Lejeune. In addition, he further testified that he was given treatment for a pilonidal cyst of sitz baths for over a year during his service at Camp Lejeune. Furthermore, the Board recognizes that, although the Veteran referenced "Agent Orange" in his February 2018 testimony, such was in the context of explaining his exposure to contaminated water at Camp Lejeune. He did not specifically assert his claim for service connection for a respiratory disability was on the basis of tactical herbicide exposure, but instead, used the phrase Agent Orange to colloquially to describe his exposure to contaminated water at Camp Lejeune, including during the aforementioned sitz baths, and thus Board will not address this reference further. Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has been diagnosed with lung cancer although this diagnosis was not proximate to the current claim received by VA in August 2012. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Specifically, a December 1996 private medical record endorsed a diagnosis of solitary pulmonary nodule right lower lobe. Consistent with such, a June 1997 private medical record documented that in December 1996 a wedge resection was performed and the resulting pathology report revealed a moderately well differentiated adenocarcinoma invading the visceral pleura. Such is reflective of subsequent private medical records, to include a July 1997 private medical record, which noted, a right lower lobectomy, by history, for adenocarcinoma, and no evidence for recurrent mass or adenopathy. During the pendency of the claim, an August 2014 VA examiner endorsed a history of right lung cancer status post partial lobectomy in December 1996. As the Veteran is acknowledged to have a current respiratory disability, best characterized as residuals of lung cancer, the issue before the Board becomes whether this disability is a result of his active service. Turning to the second element of service connection, the Veteran asserts that his lung cancer was the result of in-service exposure to contaminated water at Camp Lejeune. In regard to an in-service incident or injury due to contaminated water exposure at Camp Lejeune, VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1957 through December 1987 were potentially exposed to drinking contaminated water with volatile organic compounds (VOCs), including trichloroethylene (TCE), perchloroethylene (PCE), benzine, and vinyl chloride. 38 C.F.R. § 3.307(a) (7). Based on analyses of potential exposures at Camp Lejeune and scientific studies involving these chemicals, the National Academy of Sciences National Research Council (NRC) provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants TCE and PCE. Fourteen diseases, including lung cancer, were placed into the category of limited/suggestive evidence of an association and there is a presumption for VA treatment purposes. See 38 U.S.C. § 1710 (West 2012); 38 C.F.R. § 17.400 (2017). The Board also notes that during the pendency of this appeal, effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight 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, although none of these additional eight diseases is at issue in this appeal. 38 C.F.R. § 3.309(f). In this regard, the Veteran's service personnel records demonstrate that he was stationed at Camp Lejeune during the applicable time period. Specifically, service personnel records demonstrate service at Camp Lejeune during from November 1956 to March 1957. Thus, the element of an in-service injury due to contaminated water exposure at Camp Lejeune is met. However, the third element of a service connection claim, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, is not met. Lung cancer, and residuals thereof, is not included as one of the eight presumptive conditions but, as described above, is included as one of the fourteen diseases listed in the category of limited/suggestive evidence of an association with the consumption of water at Camp Lejeune. Thus, as there is limited/suggestive evidence of an association between lung cancer and exposure to contaminated water at Camp Lejeune, VA obtained a medical opinion in August 2014. In an August 2014 opinion, the VA examiner found the Veteran's respiratory disability, characterized as a history of right lung cancer status post partial lobectomy in December 1996, was less likely as not caused by or result of the Veteran's exposure to Camp Lejeune contaminated water. In support of such, the August 2014 examiner explained that lung cancer was the leading cause of cancer-related mortality in both the U.S. and the world, and that established environmental risk factors for lung cancer include smoking cigarettes and other tobacco products, and exposure to secondhand tobacco smoke, occupational lung carcinogens, radiation, and indoor and outdoor air pollution. Specifically, the August 2014 examiner stated that cigarette smoking was the predominant cause of lung cancer and the leading worldwide cause of cancer death, and both how much and how long a patient smoked increased the chance of lung cancer. The August 2014 examiner noted secondary risk factors include smoking tobacco either directly or via second hand exposure, age, family history, and exposure to mineral and metal dust, asbestos, or radon and both how much and how long a patient smokes increased the chances of lung cancer. Further specifically with respect to the Veteran's case, the August 2014 examiner documented the Veteran had a past history of smoking and his mother had an unknown cancer. In February 2018 testimony, the Veteran disputed the August 2014 examiner's findings. Specifically, he stated he had not smoked in many years. However, such is not inconsistent with the August 2014 examiner's finding that the Veteran had a past history of smoking. Furthermore, the Veteran, in February 2018 testimony, with respect to the risk factor identified by the August 2014 examiner of family history, also reported, in part, that his mother had colon cancer but he was under the impression she died of old age. In this regard, in a June 1997 private medical record, as part of the Veteran's medical history, noted his mother died in her mid-eighties of pancreatic carcinoma. However, this evidence is also not inconsistent with the August 2014 VA examiner's finding, which documented, in part, the Veteran's mother had an unknown cancer. Indeed, despite the Veteran's sincere beliefs otherwise, as a layman, the Veteran is simply not competent to attribute his residuals of lung cancer to in-service contaminated water exposure at Camp Lejeune, as this is the type of assessment that requires specialized medical expertise and training. See Layno v. Brown, 6 Vet. App. 465 (1994). The etiology of lung cancer, and residuals thereof, is a medically complex question which requires specialized medical expertise, as well as diagnostic testing, not simply lay observation and experience. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). The Veteran simply lacks the competency to draw that type of medical conclusion as the record does not indicate he has the requisite medical training or knowledge. In short, there is no competent and credible evidence indicating that the Veteran's residuals of lung cancer are related to the consumption of, or exposure to, water at Camp Lejeune and service connection for a respiratory disability as a result of consumption of, or exposure to, water at Camp Lejeune is not warranted. Additionally, in support of his claim, as referenced above, the Veteran submitted a prior October 2014 Board decision, which granted certain service connection claims as due to in-service exposure to contaminated water at Camp Lejeune, as evidence. However, each Board decision is based on review of the evidence of record in a particular claims file and, accordingly, has no precedential value toward adjudication of appeals by other claimants, such as this Veteran, who may appear to be similarly placed. See 38 C.F.R. § 20.1303 (2017). Additionally, the Board has considered whether there is competent credible evidence of continuity of symptomatology of lung cancer as a malignant tumor since service, or whether such manifest to a compensable degree within one year of separation, but finds in each case that there is not. Post service treatment records indicate that the Veteran was not treated for a respiratory condition until many years after separation from service. Specifically, a June 1964 VA examination report noted in part, no significant pulmonary or pleural pathology. Additionally, in February 2018 testimony, the Veteran reported the pain he experienced leading to his diagnosis of lung cancer onset in 1995. Consistent with such, a November 1996 private medical record, dated prior to the Veteran's subsequent diagnosis of lung cancer, noted in part, the Veteran had some pain in the left lower rib cage, which was extremely intermittent and seemed to be worse while sitting or driving, and that the pain had been present for several months with no definitive progression of change. Therefore, service connection based on the provisions for chronic symptoms in service or continuous symptoms since service is not warranted. See Walker, 718 F.3d at 1331. Turning to the claim on a nonpresumptive direct-incurrence basis, the evidence does not show, and the Veteran does not contend, that a respiratory disability or symptoms of lung cancer arose during service or is otherwise etiologically related to service. The Veteran's service treatment records reveal no diagnosis of a respiratory disability or symptoms thereof. In this regard, his March 1957 in-service examination, conducted in conjunction with separation from active service, reflected his lungs and chest were normal upon clinical examination. Furthermore, as described above, there is no medical evidence of record that objectively demonstrates that the Veteran had complaints related to his diagnosis of lung cancer until many years after his separation from active service. This long gap between his discharge from service and the earliest clinical evidence of lung cancer is considered to be evidence that weighs against his claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, the preponderance of the evidence is therefore also against a claim for service connection for a respiratory disability, including residuals of lung cancer, on a nonpresumptive direct-incurrence basis. In sum, the Board has reviewed the evidence of record, as well as the pertinent law and regulations, but finds that the preponderance of the evidence is against the Veteran's claim. Thus, service connection for a respiratory disability, best characterized as residuals of lung cancer, is denied. In reaching the above conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable here. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a respiratory disability, best characterized as residuals of lung cancer, is denied REMAND A February 2017 rating decision denied entitlement to service connection for diabetes, for a heart disability, and for removal of the gallbladder as due to contaminated water exposure at Camp Lejeune. In March 2017, the Veteran submitted a timely notice of disagreement (NOD) with respect to these denials. The record does not reflect a statement of the case (SOC) has been issued with respect to these claims. In circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to the AOJ to direct that an SOC be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, in the circumstances presented in this case, the AOJ must issue an SOC with respect to entitlement to service connection for diabetes, for a heart disability, and for removal of the gallbladder as due to contaminated water exposure at Camp Lejeune. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Issue a SOC pursuant to the NOD received in March 2017, as to the rating decision in February 2017, which the Veteran is appealing for entitlement to service connection for diabetes, for a heart disability, and for removal of the gallbladder as due to contaminated water exposure at Camp Lejeune. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. The appropriate period for receipt of a substantive appeal should be afforded. Only if a timely substantive appeal for any issue is received, should the issue be forwarded to the Board for appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs