Citation Nr: A20018037 Decision Date: 12/07/20 Archive Date: 12/07/20 DOCKET NO. 191115-46745 DATE: December 7, 2020 ORDER New and relevant evidence having been submitted, readjudication of the Veteran’s claim for entitlement to service connection for lung cancer is warranted. Entitlement to service connection for lung cancer is granted. FINDING OF FACT 1. The Veteran has submitted new and relevant evidence following the July 2018 rating decision denying entitlement to service connection for lung cancer. 2. The Veteran’s current lung cancer is at least as likely as not caused by exposure to contaminated drinking water at Kelly Air Force Base during her period of active service. CONCLUSION OF LAW 1. The criteria for readjudicating the claim for entitlement to service connection for lung cancer have been met. 38 C.F.R. § 3.156(d) (2019). 2. The criteria for entitlement to service connection for lung cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from January 1992 to March 1999. By way of history, the Veteran submitted a claim for service connection for lung cancer that was denied in a June 2018 rating decision. In September 2019, the Veteran submitted a supplemental claim. In a November 2019 rating decision, the Agency of Original Jurisdiction (AOJ) found that no new and relevant evidence had been submitted to readjudicate the claim. In November 2019, the Veteran appealed the case to the Board of Veterans’ Appeals (Board) and requested review of the September 2019 rating decision and hearing before a Veterans Law Judge. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In September 2020, the Veteran testified before a Veterans Law Judge at a Board hearing held via videoconference. A transcript of that hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107 (a)(2). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist that occurred prior to the rating decision on appeal. 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). New and Relevant Evidence 1. Whether new and relevant evidence has been received warranting readjudication of the Veteran’s claim for entitlement to service connection for lung cancer The Veteran’s claim for entitlement to service connection for lung cancer was denied in July 2018 for no nexus to his period of active service. The Veteran contends that she submitted evidence that is new and relevant regarding establishing a nexus between her lung cancer and her period of active service that warrants readjudication of the issue. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d)). “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1)). The Board finds the Veteran submitted new evidence after the July 2018 rating decision that is relevant to her claim. The Veteran submitted an October 2020 private medical opinion and treatise evidence of contaminated water at Kelly Air Force Base. The statement and treatise evidence were not already of record and may prove or disprove the nexus element of the claim for service connection for lung cancer. Readjudication of the claim is warranted. Service Connection 1. Entitlement to service connection for lung cancer Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran claims entitlement to service connection for lung cancer. Specifically, the Veteran contends that exposure to contaminated drinking water at Kelly Air Force Base from 1995 to 1999, during her period of active service, caused her current lung cancer. Private medical treatment records from the Veteran’s treating oncologist note a current diagnosis of metastatic non-small cell lung cancer. The record does not indicate, and the Veteran does not contend, that her current lung cancer was incurred during her period of active service. At issue in this case is whether the Veteran’s current lung cancer was caused by her period of active service. In a September 2020 hearing, the Veteran testified that during her period of active service she was stationed at Kelly Air Force Base in San Antonio, Texas from 1995 to 1999, and lived on base during this time. The Veteran contends that while stationed at Kelly Air Force Base she was exposed to contaminated water containing excess levels of perfluoro octane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). The Veteran has submitted a House of Representative Committee on Oversight Reform report noting Perfluoro octane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) can lead to serious adverse health outcomes in humans, including low fertility, birth defects, suppression of the immune system, thyroid disease, and cancer. The Veteran has also submitted a Department of Defense report entitled Addressing PFOS and PFOA. The report notes that 4 of 4 ground wells tested at Kelly Air Force Base were positive for elevated levels of PFOS and PFOA. In addition, in October 2020, the Veteran submitted a medical opinion from her treating oncologist noting that the Veteran’s cancer was at least as likely as not caused by exposure to PFOS and/or PFOA. The opinion noted that the Veteran’s cancer was not the type of cancer associated with smoking. Finally, in July 2019, the Veteran has also submitted a private medical opinion noting it was at least as likely as not that her lung cancer was at least as likely as not related to service. The Board notes that the Veteran also testified that her former husband that also was stationed at Kelly Air Force Base with her from 1995 to 1999 has developed pancreatic cancer. Conversely, an August 2019 VA medical opinion determined that it was less likely than not that the Veteran’s lung cancer was caused by her period of active service. The opinion reasoned that an October 2004 report by the United States Department of Health and Human Services Public Health Service Agency for Toxic Substances and Disease Registry concluded that exposure to drinking water from on-base wells at Kelly Air Force Base was not likely to result in adverse health effects. The Veteran’s representative has noted that VA examiner was not a specialist in oncology but rather occupational medicine, and that the opinion does not address what may have caused the Veteran’s ROS-1 gene mutation leading to her lung cancer. As the August 2019 medical opinion was not authored by an oncologist and relies on an October 2004 report, completed more than 13 years prior to the March 2018 Department of Defense report Addressing PFOS and PFOA and House of Representative Committee on Oversight Reform report, the Board finds the August 2019 medical opinion to be of little probative value. (Continued on the next page)   Based on the probative medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely not that the Veteran’s current lung cancer was caused by exposure to contaminated water during her active service at Kelly Air Force Base from 1995 until 1999. Accordingly, entitlement to service connection for lung cancer is warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, Associate Counsel 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.