Citation Nr: 20030163 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 16-19 257A DATE: April 29, 2020 ORDER Entitlement to service connection for lung cancer, to include as secondary to exposure to chemicals at U.S. Marine Corps Base Camp Lejeune, North Carolina (Camp Lejeune) is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s lung cancer is etiologically related to exposure to chemicals at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for lung cancer have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a)(7), 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to June 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). In March 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In August 2019, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain an addendum VA examination. The Board notes that two addendum medical opinions were obtained in December 2019 and have been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Lung Cancer The Veteran seeks entitlement to service connection for lung cancer. Specifically, the Veteran asserts that he developed lung cancer due to exposure to contaminated drinking water at Camp LeJeune and due to exposure to asbestos. The evidence of record includes the Veteran’s service treatment records (STRs) showing he was stationed at Camp Lejeune from October 1974 to July 1975, and again in February 1976 until his separation from service. An April 1975 STR shows the Veteran complained of problems with his sinuses and that he had trouble breathing at night and he would break out in cold sweats. In February 2012, the Veteran submitted a National Academy of Sciences National Research Council (NASNRC) report which noted a review of studies with regard to contaminated water supplies at Camp Lejeune noting diseases potentially associated with such exposure including lung cancer. The Veteran underwent a VA examination in February 2012. The examiner noted diagnoses for COPD with the 1980’s listed as the date of diagnosis, and lung cancer with 2010 listed as the date of diagnosis. The examiner opined that the Veteran’s lung cancer was “less likely than not (less than 50 percent probability)” etiologically related to service. In support of this opinion, the examiner noted the Veteran had smoked cigarettes for over 35 years, and that smoking was the leading cause of lung cancer. In this regard, the examiner found the likelihood of the Veteran’s lung cancer due to smoking far exceeded the very limited evidence suggesting an association between contaminated water a Camp LeJeune and the development of the disease. The record also contains an April 2012 Advisory Opinion regarding the issue of possible service connection for disability associated with exposure to contaminated water while serving at Camp LeJeune. The Advisory Opinion noted a June 2009 National Research Council report which found insufficient, but limited or suggestive evidence, showing a link between chemical exposure at Camp LeJeune and the development of lung cancer. The Advisory Opinion further noted the negative February 2012 VA examiner’s opinion. Based on the above, the Advisory Opinion recommended denying the Veteran’s service connection claim. In an April 2019 letter, the Veteran’s private physician, Dr. Rich, stated she had reviewed the Veteran’s medical history as well as his military history including the time he was stationed at Camp LeJeune between 1974 and 1976 as well as the time he served aboard the USS Shreveport in 1975. Based on the military background information as well as her familiarity with the treatment for lung cancer, Dr. Rich opined that it was “at least as likely as not” that the Veteran’s lung cancer had directly resulted from both exposure to contaminants such as tetrachloroethylene and benzene at Camp Lejeune and the exposure to asbestos while serving aboard the USS Shreveport. In support of this opinion, Dr. Rich stated, “In my personal experience and in the medical it is known that exposure to toxic substances such as asbestos and several chemicals such at tetrachloroethylene and benzene.” In this regard, Dr. Rich’s opinion was incomplete. Following the August 2019 Board Remand, an addendum VA medical opinion was obtained on December 2, 2019. The examiner opined that it was “less likely as not (less than 50/50 probability) that the Veteran’s lung cancer was etiologically related to exposure to contaminated drinking water at Camp LeJeune. In support of this opinion, the examiner initially addressed the April 2019 private opinion letter from Dr. Rich. In this regard, the examiner noted that Dr. Rich gave no support for her statements only to note that it was her opinion. In addition, the examiner noted that the medical study citations cited by Dr. Rich were studies she had participated in and talks she had given, but which did not provide any medical support for her conclusion regarding a nexus between TCE, PCE, vinyl chloride, benzene and asbestos and lung cancer. The examiner also noted that July 2013 and May 2014 chest CT scans noted no evidence of asbestos exposure. Instead, the examiner noted that the evidence of record was positive for a 40 year pack per day smoking history. With regard to smoking, the examiner noted that exposure to tobacco smoke accounted for almost 90 percent of lung cancer cases. Moreover, the examiner noted that medical studies showed that cigarette smoking exerted a steeper risk gradient on squamous cell carcinoma and squamous cell lung cancer than for adenocarcinoma. Therefore, based on the available data, the examiner noted that squamous cell carcinoma was found to be caused by smoking and secondhand smoke 91 percent of the time. Accordingly, the examiner concluded that the evidence of record supported a finding that the Veteran’s 40 year smoking history more likely than not caused his lung cancer, and that it was less likely than not that the Veteran’s lung cancer was caused by exposure to contaminated drinking water at Camp LeJeune. Thereafter, another addendum VA medical opinion on a contract basis was obtained from a different examiner approximately two weeks later on December 14, 2019. The examiner opined that the Veteran’s lung cancer “was at least as likely as not (50 percent or greater probability)” etiologically related to service. In support of this opinion, the examiner noted that the Veteran did not have lung cancer prior to service, and that there was evidence of current, chronic and continuous treatment and care. Thus, the examiner found that a nexus had been established. The examiner also noted that while smoking was a risk factor for the development of lung cancer, so to was exposure to the contaminants known to be in the drinking water at Camp LeJeune. The examiner further noted that TCE, PCE and benzenes had been shown to cause deleterious health effects in such exposure, including being clearly linked to the increased rates of future lung cancer. After a review of the evidence of record, the Board finds that entitlement to service connection for lung cancer is warranted. Specifically, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s lung cancer is etiologically related to exposure to contaminated drinking water at Camp LeJeune. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, 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 Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: 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). While lung cancer is not among the diseases that are deemed associated with exposure to contaminated water at Camp LeJeune, the absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Initially, the Board notes that the Veteran’s in-service records show he was stationed at Camp LeJeune from October 1974 to July 1975, and again in February 1976 until his separation from service in June 1976. Therefore, the Board finds the Veteran meets the threshold duration of service during the applicable time-period required under 38C.F.R. §3.307(a)(7)(iii). The record also contains four medical opinions; two concluding it was more likely than not that the Veteran’s lung cancer was etiologically related to contaminated drinking water at Camp LeJeune, and two concluding it was less likely than not. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. While the February 2012 VA examiner found limited evidence suggesting an association between contaminated drinking water at Camp LeJeune and the development of lung cancer, the December 14, 2019 VA examiner found that TCE, PCE and benzene had been clearly linked to increased rates of future lung cancer. In this regard, the December 2, 2019 VA examiner also found that vinyl chloride, a chemical found in the on-base water supply located at Camp Lejeune during the presumptive period, was a known risk factor for the development of lung cancer. Therefore, the Board finds that the consensus between the four medical opinions of record is that some of the contaminants in the drinking water at Camp LeJeune may be risk factors in the development of lung cancer. Accordingly, the remaining question on appeal is whether the conceded exposure to contaminants in the drinking water at Camp LeJeune at least as likely as not caused the development of the Veteran’s lung cancer. In regard to this question, the Board finds the evidence at least in relative equipoise. Specifically, while the December 2, 2019 VA examiner found that cigarette smoking exerted a steeper risk gradient than exposure to contaminants such as vinyl chloride, the December 14, 2019 VA examiner conversely found that there was at least a 50 percent or greater probability that exposure to TCE, PCE and benzenes had caused the development of the Veteran’s lung cancer. (Continued on the next page)   Accordingly, the Board finds the evidence is at least in relative equipoise with regard to this inquiry on appeal. As such, in providing the Veteran the benefit of the doubt, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.