Citation Nr: 20021033 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-39 108 DATE: March 25, 2020 ORDER Entitlement to service connection for kidney cancer is granted. Entitlement to service connection for lung cancer is granted. FINDINGS OF FACT 1. The Veteran had service of at least 30 days at United States Marine Corps Base Camp Lejeune and/or Marine Corp Air Station New River in North Carolina during the applicable presumptive period. 2. Subsequent to service the Veteran was diagnosed with kidney cancer. 3. The Veteran’s kidney cancer manifested to a degree of 10 percent or more at a time after service. 4. The Veteran’s lung cancer is proximately due to his kidney cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for kidney cancer have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for lung cancer as secondary to kidney cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to February 1974 to April 1978. He died in January 2020. The Veteran’s surviving spouse has been substituted in this appeal by the Regional Office (RO) and she was notified in a March 2020 notice letter. See 38 C.F.R. § 3.1010. Service Connection 1. Entitlement to service connection for kidney cancer. The Veteran contended that his kidney cancer is presumptively related to service at Marine Corp Air Station New River. The Board concludes that during his lifetime the Veteran had a disability that is related to exposure to contaminated water while stationed at Camp Lejeune. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). A presumption of service connection exists for specific diseases associated with exposure to contaminants in the water supply at Camp Lejeune if they manifest in a Veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corp Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. See 38 C.F.R. §§ 3.307 (a)(7), 3.309 (f). Post-service records show that the Veteran was diagnosed with kidney cancer and he underwent nephrectomy. In a statement dated in June 2019 the Veteran’s private provider reported that the Veteran’s kidney cancer was likely a direct result of exposure to contaminated water while serving in the Marine Corps with duties at Camp Lejeune and New River. A VA examination in June 2019 identified that the Veteran was diagnosed with malignant neoplasm of the kidney in remission. An October 2019 VA medical opinion included that examiner’s notation that the Veteran had risk factors of smoking, hypertension, and obesity. The examiner further noted a potential exposure to solvents during work in the scuba business. As the Veteran was diagnosed with kidney cancer that was noted to have been malignant and to have resulted in a nephrectomy, the kidney cancer manifested to a degree of 10 percent or more at a time after service. See 38 C.F.R. § 4.115, Diagnostic Code 7500, 7528. The question for the Board is whether it is related to service. Service personnel records do not show that the Veteran was stationed at Camp Lejeune or Marine Corps Air Station (MCAS) New River. However, the records show that he was awarded a Meritorious Mast for participation in the construction and striking of the Command Post Camp for a field exercise. The citation indicates that the Veteran participated in the exercise for 12 days. The record includes command records that identify officers at the Veteran’s duty station that have submitted statements on behalf of the Veteran. The Veteran had also submitted a description of his duty at Camp Lejeune and MCAS New River. In an affidavit dated in February 2019 a retired Marine Corps Colonel reported that he was responsible for the administrative function of the section to which the Veteran was assigned. The officer noted that the Veteran’s duties included ensuring that all subordinate units properly executed all fiscal matters. As none of the officers and unit fiscal clerks had training or experience with the new system, the Veteran had to provide much on-site oversight and staff assistance. During critical times of the year the Veteran had to spend more time in subordinate unit offices than in their own office. Several of these units were at MCAS New River, part of the Camp Lejeune base complex. The officer noted that ordinarily when Marines are ordered to perform duties involving travel, they receive written orders and are compensated for their expenses. However, the Veteran lived off base closer to New River and the Veteran voluntarily accepted the officer’s verbal no-cost orders. The Veteran spent a significant percentage of his duty time aboard New River from 1975 to 1977, typically two days a month. In an affidavit dated in March 2019 a retired Marine Corps Major reported that he served at the same time as the Veteran in the same headquarters and in close contact with the Veteran. The officer noted that the Veteran frequently worked at the MCAS New River (approximately 2 days per month on average) on behalf of the staff, supporting their direct subordinate units there. The officer reported that while staff members would travel to Camp Lejeune and/or MCAS New River, oftentimes it was done without having any official written travel orders or Temporary Assignment Duty orders as they either used official vehicles for travel or if they lived in close proximity to MCAS New River or Camp Lejeune, they would just use their personal vehicle and travel directly from home or to home upon complete of the work there. The officer noted that the Veteran lived about equidistant between MCAS New River and his listed station. The officer also noted that he was made aware that the Veteran received a Meritorious Mast for his exemplary performance during a command post exercise during 1977. The officer did not recall participating in that particular exercise but that they were routinely held on Camp Lejeune where there were extensive training areas. The Veteran’s participation at that exercise, for which he received that award, would have been at Camp Lejeune. The officer concluded that the Veteran served 30 days or more cumulatively at MCAS New River and at Camp Lejeune during the 1977 to 1978 timeframe. The October 2019 VA opinion provided noted 12 days service were identified at Camp Lejeune and 9 days service were identified at New River. The examiner was unable to verify two days a week at Camp Lejeune and New River during the period from the Spring 1975 to April 1978. Considered the record in the entirety and affording the appellant the benefit of the doubt, the Veteran’s service personnel records, the affidavits of Marine Corps officers who served with the Veteran, and the statements of the Veteran, the Board concludes the Veteran served at least a cumulative 30 days at Camp Lejeune and/or MCAS New River in North Carolina, during the applicable period. Therefore, as the Veteran was diagnosed with a disability for which presumptive service connection is warranted based upon exposure to contaminated water at Camp Lejeune and/or MCAS New River; the disability manifested to at least 10 percent during a period after service; and the Veteran served at least 30 days at Camp Lejeune and/or MCAS New River, during the applicable period, service connection for kidney cancer is granted. 2. Entitlement to service connection for lung cancer. The Veteran contended that his lung cancer is due to his kidney cancer. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board concludes that the Veteran’s lung cancer was secondary to the Veteran’s kidney cancer. Treatment records show that the Veteran had metastatic renal cancer in the lung. The August 2019 VA examiner said the Veteran’s medical records document a renal cell lung cancer per biopsy confirming metastatic disease from his kidney cancer. Furthermore, in a private provider note dated in June 2019 the Veteran was noted to be diagnosed with metastatic renal cell carcinoma in his lungs. Accordingly, Given the Board’s grant of service connection for kidney cancer, service connection for lung cancer, as secondary to his kidney cancer, is granted. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.