Citation Nr: 19103545 Decision Date: 01/15/19 Archive Date: 01/14/19 DOCKET NO. 14-37 163 DATE: January 15, 2019 ORDER Entitlement to service connection for breast cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDINGS OF FACT 1. The Veteran had active service at Camp Lejeune and was exposed to water contaminants while stationed there. 2. The Veteran’s breast cancer did not manifest in service or for many years thereafter and is not related to her military service, to include exposure to contaminated water while serving at Camp Lejeune. CONCLUSION OF LAW Breast cancer was not incurred in service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from March 1982 to March 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2015. A transcript of the hearing is of record. Thereafter, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA). The Veteran and her representative were sent a copy of the opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.901, 20.903 (2017). Law and Analysis Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements of service connection is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303 (b) applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C. § 1101. With respect to the current appeal, this list includes malignant tumors. See 38 C.F.R. § 3.309(a). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for certain enumerated diseases related to exposure to contaminants present in the water supply at Camp Lejeune. For purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7)(i). Section § 3.307(a)(7) provides that 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. 38 C.F.R. § 3.307 (a)(7)(iii). The enumerated diseases which are deemed to be associated with exposure to contaminated water at Camp Lejeune are 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). 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). Breast cancer is not one of the enumerated diseases. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for breast cancer. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of breast cancer. In fact, the evidence shows that she was first diagnosed with breast cancer in 2010. She has not contended otherwise. Rather, the Veteran has claimed that she developed breast cancer after service due to her exposure to contaminated water while she was serving at Camp Lejeune. Her service personnel records do show that she served on active duty at Camp Lejeune from May 1982 to August 1982. Therefore, the Veteran is presumed to have been exposed during such service to the contaminants in the water supply. 38 C.F.R. § 3.307 (a)(7)(iii). However, service connection cannot be granted on a presumptive basis because breast cancer is not one of the enumerated disease listed under 38 C.F.R. § 3.309(f). Thus, the remaining question is whether the evidence otherwise establishes a nexus between the Veteran's exposure to contaminated water at Camp Lejeune and her breast cancer. A VA medical opinion was obtained in August 2013 from a Camp Lejeune Contaminated Water (CLCW) subject-matter expert. The examiner concluded that the Veteran’s breast cancer was less likely than not caused by exposure to solvents in the contaminated water at Camp Lejeune. He observed that she was stationed there for seventy days from May 1982 to August 1982 and indicated that, based on the currently available environmental data regarding exposure levels at Camp Lejeune, the Veteran’s exposure level would have been lower than expected to have any biologic effect. He specifically indicated that her exposure levels were 1000 times lower than the levels that would be medically expected for a person to suffer from negative biological effects. He also noted that the Veteran risk factors include being female and over the age of 40. The Veteran submitted a December 2015 letter from the Roswell Park Cancer Institute, Clinical Genetics Service. The letter confirms that genetic testing performed in 2010 was negative and that a cause could not be determined. The report explains that the Veteran’s breast cancer could have been from an as-yet unidentified or untested gene, a random event, or a combination of genetic and non-genetic factors. The genetic counselor explained that the center’s role is to assess hereditary risk and that the Veteran’s request for a causation opinion related to environmental factors is beyond the scope of the center’s specialty. Although the August 2013 VA medical opinion was thorough and supported by rationale, the Board noted the Veteran had subsequently submitted evidence suggesting a possible relationship between her exposure to contaminated water and breast cancer. The examiner did not have the opportunity to consider such evidence. Specifically, in December 2015, the Veteran provided findings of a study indicating that workers at Camp Lejeune had higher mortality rates due to cancers of the female breast as compared to workers at Camp Pendleton. Therefore, the Board request a VHA medical opinion, which was provided in June 2018. The June 2018 VHA physician reviewed the claims file and noted that the Veteran was diagnosed with left-sided locally advanced breast cancer in 2010 for which she received chemotherapy and surgery. A work-up in September 2010 found that she had metastatic breast cancer to the bone for which she received tamoxifen treatment. The VHA physician also indicated that the Veteran had a family history of breast cancer in her mother and that genetic testing was reportedly negative for her mother. The Veteran had undergone BRCA-1 and BRCA-2 testing, which was negative. In addition, the VHA physician acknowledged the report from ATSDR indicating that, compared to Camp Pendleton workers, the Camp Lejeune workers had higher mortality rates for female breast cancer. However, he explained that ATSDR did caution that the finding does not provide definitive evidence that exposure to the contaminants caused the specific health outcome due to a number of reasons, including small numbers of events and therefore wide ranges of confidence intervals. The VA physician stated that the Veteran appeared to have a short exposure to the environment. Although genetic testing was negative, he explained that it does not rule out the contribution of genetics, such as genes that we do not know or could not or did not test for, to her incidence of breast cancer. The VHA physician concluded that he agreed with the prior assessment that it is less likely than not that the exposure caused the Veteran’s breast cancer. The Board finds the opinions of the VA examiner and VHA physician to be highly probative, as they considered the Veteran's medical history and provided a detailed rationale for their conclusions. Moreover, there is no medical opinion otherwise relating the Veteran’s breast cancer to her military service, to include the contaminated water at Camp Lejeune. The Board does acknowledge the Veteran's own statements that her breast cancer is related to her exposure to contaminated water at Camp Lejeune. The Veteran is certainly competent to report observable symptoms she experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of the etiology of the Veteran's breast cancer falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disease involves a complex internal process as opposed to an external process or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds that the medical opinions provided by the VA examiner and VHA physician are more probative, as they were based on a review of the record and their own medical expertise, knowledge, and training. The examiners also provided a thorough rationale in support of the conclusions reached. For these reasons, the Board finds that the competent and most probative evidence shows that the Veteran's breast cancer is not related to her military service, to include any exposure to contaminated water at Camp Lejeune. As the preponderance of the evidence is against the claim of service connection for breast cancer, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel