Citation Nr: 20024068 Decision Date: 04/08/20 Archive Date: 04/08/20 DOCKET NO. 16-56 084 DATE: April 8, 2020 ORDER Service connection for non-Hodgkin’s lymphoma, to include as due to exposure to contaminants in the water supply at Camp Lejeune, is granted. FINDING OF FACT The Veteran’s current non-Hodgkin’s lymphoma is etiologically related to his exposure to contaminants in the water supply at Camp Lejeune. CONCLUSION OF LAW The criteria to establish entitlement to service connection non-Hodgkin’s lymphoma, to include as due to exposure to contaminants in the water supply at Camp Lejeune, have been met. 38 U.S.C. § 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1992 to May 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned at a videoconference hearing and a transcript of the hearing is of record. The Veteran contends that he developed non-Hodgkin’s lymphoma as a result of his exposure to contaminants in the water supply while stationed at the U.S. Marine Base at Camp Lejeune from August 1992 to November 1992. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as malignant tumors, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, a combination of manifestations sufficient to identify the disease entity and sufficient observation is required to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).   Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines "contaminants in the water supply" as 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. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the C.F.R. § 3.309(f) if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has a current diagnosis of non-Hodgkin’s lymphoma. See 07/28/2014 Medical Treatment Record – Non-Gov’t Facility, at 10 and 17 (07/16/2014 and 07/23/2014 Hematologic and Lymphatic Conditions DBQs). Military personnel records confirm that the Veteran was assigned, during his active duty service, from August 1992 to November 1992 at U.S. Marine Corps Base at Camp Lejeune, North Carolina. See 06/28/2005 STR – Medical at 78. His military occupational specialty was rifleman. The Veteran’s service treatment records document that in September 1995, the Veteran reported weakness in his legs, lower back pain, and stated that he had lost between 15 and 20 pounds over the course of the preceding five months. See 06/28/2005 STR – Medical at 23. After a bone scan revealed a sclerotic lesion at the L5 vertebra, physicians noted that the Veteran was very unlikely to have cancer, “especially lymphoma,” but chest x-rays were performed to rule out mediastinal lymphocytes. See id. Service treatment records ultimately show testing revealed no evidence of lymphoma, but at his September 2019 Board hearing, the Veteran contended that evidence that he was tested for lymphoma in service shows that military physicians were aware of the risk of cancer for service members stationed at Camp Lejeune. Id. at 24; see September 2019 Hearing Transcript. In August 2014, the Veteran submitted a NBC news article summarizing a 2013 report from the Centers for Disease Control and Prevention (CDC) showing that the drinking water supply at Camp Lejeune likely remained contaminated for as long as 60 years. See 08/14/2014 Correspondence. Specifically, the CDC reported that Marines at Camp Lejeune were exposed to TCE-contaminated water from 1948 through 2008 and benzene-contaminated water from 1951 to 2008. Id. In July 2015, the Veteran submitted numerous private treatment records dating from 2014 documenting his treatment for non-Hodgkin’s lymphoma. See 06/30/2014 and 07/28/2014 Medical Treatment Records – Nongovernment Facility. The records show that the Veteran reported a history of rashes and skin lesions beginning in 2007 before being officially diagnosed with non-Hodgkin’s lymphoma in July 2014. Id. The Veteran also submitted medical opinions from his private physicians regarding the etiology of his non-Hodgkin’s lymphoma. In an April 2015 opinion, Dr. C.N.B., a neuroradiologist, stated that TCE, one of the known contaminants in the ground water at Camp Lejeune, is known to cause a variety of health complications, including changes in T-cell functions that can lead to T-cell lymphoma. See 06/17/2015 Third Party Correspondence. Dr. C.N.B. provided a summary of medical literature related to the link between TCE exposure and T-cell abnormalities as a factor in the etiology of lymphoma. Dr. C.N.B. further stated that the water supply at Camp Lejeune is known to have contained TCE, and TCE was likely still present in the water that the Veteran drank while stationed at Camp Lejeune in 1992. Finding that the Veteran has no family history of T-cell lymphoma and records do not support another more plausible etiology for his current diagnosis, Dr. C.N.B opined that “[i]t is my opinion, considering every possible sound medical etiology/principle, to at least the 90% level of probability, that [the Veteran’s] T-Cell Lymphoma problems are more likely than not due to his exposures to the toxins of TCE in service at Camp Lejeune.” Id. at 2. In a July 2015 opinion, Dr. S.A., an oncologist, provided the Veteran’s history of treatment for his non-Hodgkin’s lymphoma. See 08/03/2015 Medical Opinion. Dr. S.A. noted the Veteran’s assignment at Camp Lejeune during his active duty service and the established findings that drinking water systems were contaminated with toxins such as TCE from 1953 to 1987. Finding that the Veteran has no known risk factors that may have precipitated his non-Hodgkin’s lymphoma, Dr. S.A. opined that the Veteran’s “records do not support another more plausible etiology for his current Lymphoma. . .. It is my opinion that it is more likely than not that [the Veteran’s] condition was caused by the stresser [sic] incident.” Id. Based on a careful review of the evidence, the Board finds that taking into totality the evidence of record and resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that the Veteran’s currently diagnosed non-Hodgkin’s lymphoma is etiologically related to his exposure to contaminants in the water supply at Camp Lejeune. The Veteran has been diagnosed with non-Hodgkin’s lymphoma, a disease that qualifies under the presumption for service connection based on exposure to contaminants present in the water supply at Camp Lejeune. See 38 C.F.R. § 3.309(f). However, the evidence shows that the Veteran was stationed at Camp Lejeune from August to November 1992. Thus, under the amended provisions, the Veteran did not serve at Camp Lejeune during the presumptive period. Therefore, based on the § 3.309(f) presumption for service connection based on exposure to contaminants in the water supply at Camp Lejeune, the Veteran is not entitled to service connection. Despite not qualifying for presumptive service connection due to exposure to contaminants in the water supply at Camp Lejeune, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds perplexing that the Veteran's initial assignment at Camp Lejeune began in August 1992, approximately five years after the end of the presumptive period in December 1987, a period which was the best estimate in which the contamination ended. The 2013 CDC report summary submitted by the Veteran showed contamination may have lasted at Camp Lejeune until 2008, and Dr. C.N.B. likewise opined that the Veteran was likely still exposed to TCE at Camp Lejeune in 1992. Coupled with the fact that the Veteran has been diagnosed with one of the presumptive diseases under VA regulations for exposure to contaminants in the water supply, the Board concludes that it is at least as likely as not that the Veteran was exposed to contaminated water during his period at Camp Lejeune from August to November 1992 based on the individual facts and circumstances of this Veteran’s case before the Board. See 38 C.F.R. § 20.1303 (stating that each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law). Finally, the Board finds that the April 2015 and July 2015 private opinions provide probative evidence that the Veteran's non-Hodgkin’s lymphoma is etiologically related to exposure to the carcinogen agents in the contaminated water at Camp Lejeune. The Board finds that the competent medical evidence is sufficient to decide the Veteran's claim as the private opinions were provided by a board-certified oncologist and neuroradiologist based on an account of the Veteran's medical history, citation to medical literature and other pertinent evidence, and a thorough rationale for their conclusions. The Board also finds that both medical opinions are credible. Additionally, the Board points out that there is no competent evidence to the contrary, and the court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). (Continued on the next page)   In summary, the Board finds that the evidence is at least in equipoise that the Veteran's currently diagnosed non-Hodgkin’s lymphoma is etiologically related to his exposure to contaminants in the water supply at Camp Lejeune during his active service. The Board is therefore compelled to afford the Veteran the benefit of the doubt; accordingly, service connection is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont, Law Clerk 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.