Citation Nr: 20002501 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 17-41 244 DATE: January 10, 2020 ORDER Entitlement to service connection for maxillary sinus carcinoma (oral cancer), to include as a result of Camp Lejeune contaminated water (CLCW) is granted. Entitlement to service connection for skin cancer, to include as a result of Camp Lejeune contaminated water (CLCW) is granted. FINDINGS OF FACT 1. The Veteran had active duty service of at least 30 days at Camp Lejeune, including from August 15, 1970 to September 30, 1970. 2. The competent and probative evidence of record is at least in equipoise as to whether the Veteran’s oral cancer is at least as likely as not related to exposure to contaminants in the water supply during service, to include at Camp Lejeune. 3. The competent and probative evidence of record is at least in equipoise as to whether the Veteran’s skin cancer is at least as likely as not related to exposure to contaminants in the water supply during service, to include at Camp Lejeune. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for skin cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7) (2018). 2. Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for oral cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to May 1972. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to, inter alia, service connection for skin cancer and oral cancer. The Veteran timely appealed and requested a hearing. However, before the case was certified to the Board on appeal, the Veteran submitted a new claim for service connection for skin cancer and oral cancer. The RO then erroneously treated the previous claim on appeal as final and re-opened and readjudicated the issues. The Veteran again timely appealed to the Board. In September 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. Service Connection 1. Entitlement to service connection for skin cancer, to include as a result of CLCW. 2. Entitlement to service connection for oral (head, face or neck) cancer, to include as a result of CLCW. The Veteran seeks entitlement to service connection for skin cancer and maxillary sinus carcinoma (as an oral cancer of the head, face or neck). He contends that these cancers are the result of exposure to toxic and carcinogenic chemicals to include contaminated water while he was stationed at Camp Lejeune, North Carolina. The Veteran contends that he was also exposed to trichloroethylene (TCE) at El Toro and was exposed to Agent Orange in Okinawa. The Veteran’s personnel records confirm that he was stationed at El Toro and Okinawa. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Applicable to claims received by VA on or after March 14, 2017, and to claims pending before VA on that date, 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. See 38 C.F.R. § 3.307 (a)(7)(iii); 82 Fed. Reg. 4173 (Jan. 13, 2017). For the purposes of this section, contaminants in the water supply means the volatile organic compounds 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). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in 3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307 (a)(7)(iv). Military personnel records confirm that the Veteran served on active duty for at least 30 days at the U.S. Marine Corps Base at Camp Lejeune, North Carolina, including during the period from August 15, 1970 to September 30, 1970. Therefore, the Veteran’s exposure to contaminated water at Camp Lejeune is presumed. Although there is no official record of the Veteran being exposed to herbicide agents in Okinawa, or elsewhere during service, the Veteran’s personnel records do show that the Veteran also served at El Toro from February 1971 to August 1971, which, according to the Environmental Protection Agency (EPA), was listed as a Superfund site in 1990. Also, according to the EPA, the base was approved for closure in 1993 due to findings that hazardous chemicals such as TCE had been dumped into the soil and contaminated the groundwater. The base remains listed as a Superfund site and decontamination measures are ongoing. During treatment at the VA in 2013, the Veteran reported that he was first diagnosed with “head and neck” cancer in 1988. Although there are no records in the claims file relating to the Veteran’s skin cancer and oral cancer prior to March 2005, those records state that the Veteran has had a very long and complicated medical history and has undergone many surgeries for skin cancer affecting his head and neck. An April 2014 VA medical opinion reflects that the Veteran has current diagnoses of maxillary sinus carcinoma and basal cell cancer. Thus, the evidence shows that the Veteran has current diagnoses of oral cancer and skin cancer. The Veteran's oral cancer and skin cancer are not among the listed diseases that are presumed to be associated with exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Nevertheless, the absence of a disability listed at 38 C.F.R. § 3.309(f) does not automatically preclude a finding of service connection on a direct basis. Rather, service connection for a disability claimed as due to contaminants in the water supply at Camp Lejeune may be established by showing that a disability is, in fact, causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In an October 2019 letter, one of the Veteran's treating physicians, Dr. E.L. noted his various diagnoses including skin cancer, oral cancer, and prostate cancer, and opined that it was more likely than not that the Veteran’s skin and oral cancer were caused by his exposure to toxic chemicals/substances during active service. The doctor based his opinion on his years of training and experience with skin and oral cancers, his examinations and treatments of the Veteran for over fifteen years, the Veteran’s medical history with uncommon combinations and recurrences of cancer, his medical record, and consultations with the Veteran’s other doctors. The doctor noted the Veteran’s exposure to carcinogens at Camp Lejeune and other military bases. The doctor also noted that the Veteran’s cancers and other diagnoses are not typically found in combination in the general population. The doctor also stated that the Veteran’s history establishes no post-service occupational or lifestyle exposure to the types of chemicals or substances that could cause his combination and recurrences of his condition. This opinion is accompanied by a complete rationale, and is therefore highly probative. A March 2014 VA Medical Opinion concluded that the Veteran’s skin cancer and oral cancer were less likely than not due to CLCW. The examiner based the opinion on the Veteran’s estimated length of exposure to CLCW, various medical treatises showing that tobacco and alcohol use result in a higher likelihood of developing cancer of the head and neck, and a medical study on a community in California which showed no significant increase in the prevalence of cancer among individuals who consumed water with ammonium perchlorate and TCE. The examiner also pointed to the Veteran’s known risk factors, including smoking and alcohol use. Notably, this opinion was rendered before September 24, 2014, the date when VA amended its regulations in order to implement the statutory mandate that VA provide health care to certain veterans who served at Camp Lejeune for at least 30 days during the period beginning on January 1, 1957, and ending on December 31, 1987. See 79 Fed. Reg. 57,410 (Sept. 24, 2014). The applicable regulation requires VA to furnish hospital care and medical services related to treatment of esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage, scleroderma, neurobehavioral effects, and non-Hodgkin's lymphoma. 38 C.F.R. § 17.400 (2016). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 (2016) were amended to add eight diseases found to be associated with contaminants present in the water supply at Camp Lejeune. While skin and oral cancer are not listed as being presumptively caused by CLCW, these VA regulations acknowledge a link between the chemicals present in CLCW (including TCE) and some types of cancer, and therefore conflict with the findings of the study cited by the VA examiner. Moreover, the examiner also based the opinion only on the Veteran’s estimated exposure to TCE and other chemicals at Camp Lejeune and did not consider the Veteran’s potential exposure to TCE and other carcinogens during other periods of his service, including his time at El Toro. As the most probative evidence indicates this Veteran developed skin cancer and oral cancer as a result of his personal exposure to toxic chemicals during active service, to include CLCW, service connection for skin cancer and oral cancer is granted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Modesto The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.