Citation Nr: 20057510 Decision Date: 08/31/20 Archive Date: 08/31/20 DOCKET NO. 20-25 664 DATE: August 31, 2020 ORDER Entitlement to service connection for prostate cancer, as due to contaminated water exposure at Camp Lejeune, North Carolina (CLCW) is denied. FINDINGS OF FACT 1. The Appellant was stationed at Camp Lejeune, North Carolina during the period for which exposure to contaminated drinking water has been presumed under VA regulations. 2. The preponderance of the available evidence demonstrates that the Appellant’s prostate cancer is not causally or etiologically related to exposure to CLCW. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer, as due to contaminated water exposure at Camp Lejeune, North Carolina have not been met. 38 U.S.C. §§ 101, 106, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant had active duty for training in the United States Marine Corps from July 1965 to February 1966. He was at Camp Lejeune from November 1965 to February 1966. The also had active duty for training at Camp Lejeune from June 11, to June 24 1967, and from June 7, to June 21, 1969. Service Connection Service connection will be granted, in pertinent part, if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active duty for training. 38 U.S.C. §§ 101, 106, 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2019). Establishing service connection generally requires: (1) the existence of a present disability; (2) 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA laws and regulations provide that, if a veteran or reservist was exposed to contaminated water at Camp Lejeune, North Carolina during service or training, certain listed diseases are presumptively service connected. Under the new codified 38 C.F.R. § 3.307 (a)(7), certain diseases have been associated with exposure to contaminants in the water supply at Camp Lejeune: (i) For the purposes of this section, contaminants in the water supply means 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; (ii) the diseases listed in § 3.309 (f) shall have become manifest to a degree of 10 percent or more at any time after service; (iii) 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; (iv) exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101 (24)(B) and (C). 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. Additionally, under 38 C.F.R. § 3.309 (f), if a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of §3.307 (a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307 (d): (1) Kidney cancer; (2) Liver cancer; (3) Non-Hodgkin’s lymphoma; (4) Adult leukemia; (5) Multiple myeloma; (6) Parkinson’s disease; (7) Aplastic anemia and other myelodysplastic syndromes; and (8) Bladder cancer. Entitlement to service connection for prostate cancer, as due to CLCW. The service treatment records (STRs) show an August 1965 treatment note states that the Appellant will be recommended for a urology consultation, provided an indication of pathology is first detected. However, a day later the Appellant’s “urine” was found to be normal and pain was disappearing. The treatment provider observed that lymph nodes may have reacted with pain from a primary small-pox vaccination. The January 1966 separation examination shows the Appellant’s genitourinary system was found to be normal. August 1966, December 1967, May 1969, and July 1971 non-active service annual examinations for the Marine Corps Reserve show the Appellant’s genitourinary system was found to be normal and he denied past or current frequent or painful urination. The post-service record shows that, in July 2017, the Appellant underwent a private treatment prostate biopsy. The result of which indicating 2 of 6 samples were diagnosed as prostatic adenocarcinoma. An early April 2018 private treatment MRI found a “highly suspicious” lesion on the Appellant’s prostate gland. A whole-body scan followed a week later with no related findings. An abdominal/pelvis CT scan revealed stable enlargement of the prostate gland. The Appellant’s private cancer specialist, Dr. R.R., assessed him with locally advanced prostate cancer. From April through August 2018, the Appellant visited several private treatment physicians for radiology treatment, medications and overall monitoring of prostate cancer. In August 2018, the Appellant underwent a prostate brachytherapy surgical procedure. An April 2019 medical statement of the Appellant’s private cancer specialist, Dr. R.R., states “[the Appellant] has been diagnosed with prostate cancer. It is as likely as not that the prostate cancer may have resulted from contaminant exposure at Camp Lejeune.” After examination in August 2019, the Appellant’s private treatment specialist, Dr. R.S.W. assessed the Appellant as being without evidence of disease. During this visit, the Appellant asked Dr. R.S.W. to look over some articles on the relationship of prostate cancer to TCE (trichloroethylene), he informed Dr. R.S.W. that he had been exposed at Camp Lejeune for about 18 months and asked him to comment on the possible relationship of his exposure to his development of prostate cancer. Dr. R.S.W. stated the following in his notes: If he were exposed to include TCE at [C]camp Lejeune as he reports, within the limits of accuracy of this case-control study of occupational chemical exposure and prostate cancer in aerospace an radiation workers [the subject of one of the articles], it seems to me that it would be not be unreasonable for him to assert that more likely than not (better than 50/50 based on statistical significance and thus likely not just a random association given the p value [statistical probability value] that his prostate cancer could have resulted from contaminant exposure at Camp Lejeune and thus he was at higher risk than if he had not been exposed. However, I do not think one can prove with absolute certainty that his prostate cancer was caused by TCE exposure. In a March 2020 “Nexus Letter,” Dr. R.R. stated: The [Appellant] served at Camp Lejeune for approximately 18 months between 1965 - 1971. While at Camp Lejeune he was exposed to high levels of TCE, PCE, benzene, and vinyl chloride in the water and also insolvents [sic] he used working in truck maintenance. It is my opinion that his prostate cancer is as least as likely as not due to these exposures. The rational for my opinion is: The International Agency for Research on Cancer as well as the National Toxicology Program 14th Report on Carcinogens lists the above contaminants as either known or probable carcinogens. According to the ATSDR [Agency for Toxic Substances and Disease Registry] article, “Health Effects Linked with Trichloroethylene (TCE), Tetrachloroethylene (PCE), Benzene, and Vinyl Chloride Exposure” health effects with positive findings between prostate cancer and TCE and PCE exists. It states that “prostate cancer is a reported health problem in people of all ages from working with TCE.” The Report on Carcinogens, Eleventh Edition states that “occupational exposure to TCE was associated with excess incidences of prostate cancer.” The American Journal of Industrial Medicine article on chemical exposures and prostate cancer from Volume 50 Issue 5 May 2007 concluded that high levels of TCE exposure are associated with prostate cancer. After review of the record, a March 2020 VA examiner, who is also a Subject Matter Expert for the Camp Lejeune Water Contamination Project, as well as a Certified Medical Examiner, Occupational Medicine, opined that the Appellant’s prostate cancer is less likely as not (less than 50/50 probability) caused by or is as a result of the Appellant’s exposure to contaminated water while at Camp Lejeune. In an extensive rationale and summary of the treatment record, she explained: This report was written after review of the medical fi[l]e and pertinent medical journals. [The Appellant] has filed a claim for prostate cancer secondary to exposure to contaminated water while at Camp Lejeune. His entrance and exit examinations do not reflect any prostate issues or acute/chronic exposures to TCE ,PCE or vinyl chloride. His father had bladder cancer. He was treated for prostatitis which is an infection/inflammation of the prostate 11/73. There is no additional medical evidence that this was a chronic problem[.] [N]o further treatment found in C file. [The Appellant] left the military 7/28/71. While in the military he served as a rifleman and mechanic. The record is void for post discharge employment, hobbies and exposures. The record is also void on medical treatment and given prior to 2011. The record noted no family history of prostate cancer. He was a smoker 10 pack years but has quit. He drinks alcohol regularly and admits to 2 drinks a day[,] 7days of the week. The medical records include an appeal dated 8/26/15 which is included in the C file however this appears to relate to another veteran with prostate cancer. That veteran had a radical prostatectomy and [the Appellant] has not had surgery. 2011 PSA was 2.5. August 2014. He returned to the physician for urinary retention. An ultrasound of the kidneys, bladder revealed mild hydronephrosis. 10/14 a CT of the abdomen and pelvis noted an enlarged prostate with mass effect on the bladder. November 2016 his PSA was 5.4 and a transrectal biopsy of the prostate was performed. Pathology showed adenocarcinoma. Surgery was offered. He obtained a second opinion from Dr. [D] who recommended surveillance. PSA 9/25/17 was 6.4. The decision was made to try radiation treatment. He was placed on medication to reduce the size of the prostate prior to radiation pellets being placed. MRI prostate no change in diagnosis. Bone scan normal and Ct abdomen and pelvis stable but noted an enlarged prostate. He completed his radiation 8/2/18. He currently receives Lupron q 3 months and is monitored. [Dr. R.S.W.], oncologist noted PSA 0.1 4/8/19, whole body scan no metastasis. He states [Appellant] is doing well. [The Appellant] states in a letter that he believes his prostate cancer was secondary to exposure to TCE not only through exposure to contaminated water but also the use of TCE and other solvents, while working as a mechanic. I can only speak to his contaminated water exposure as I do not have information regarding other chemical uses in the military or post military. [Appellant] has submitted letters of support from his physicians. [Dr. R.R.], MD 4/17/19 makes a support statement in favor of [the Appellant’s] exposure at Camp Lejeune and his development of prostate cancer. His conclusion is more likely than not but no support of his opinion was offered. [Dr. R.S.W.] MD 8/5/19 reviewed an article given to him by the [Appellant], from the Journal of Industrial Medicine from 2007. This article looked at 362 cases of workers employed at a nuclear energy and rocket engine testing facility in southern California between 1950 and 1992. They concluded high levels of TCE exposure can be associated with prostate cancer. The average length of exposure however was 18 years in their study. [The Appellant’s] length of exposure was less than 1 year and not continuous. I reviewed [M.P.’s] article [on] TCE and cancer. He notes “Trichloroethylene (TCE) was for many decades the solvent of choice for cleaning and vapor degreasing of metal parts, and has been commonly used in several other industrial applications.” This is a statement of use not directly related to [the Veteran]. TCE has been in use for over 80 years in multiple applications. Exposure depends on use, protective gear worn and application itself such as cleaning hoods, gloves inside versus outside use and dilution etc. Most studies reviewed were involving exposure to TCE PCE are done with high level and prolonged use or exposure to these chemicals and the development of prostate cancer. Looking for an unusual presentation of prostate cancer in [the Appellant] did not provide any outliers. Reviewing his military medical visits none reflected significant heavy exposure to TCE. His exit examination was unremarkable. Prostate cancer is a common cancer. Prostate carcinoma tends to develop in men over 50 years old, affecting approximately 80% of men over 80 years[.] The average age of detection is 66 [years] old. Most cases of prostate cancer—99 percent—are adenocarcinomas. [Appellant] falls into this category of detection. The ATSDR 2017 [Agency for Toxic Substances and Disease Registry] noted “Half of the occupational cohort studies evaluated prostate cancer mortality. Prostate cancer is highly survivable, with a 5-year survival percentage of nearly 99%. Therefore, studies that evaluated prostate cancer mortality were at a disadvantage, likely missing a majority of cases of the disease and impacting the precision of the effect estimate (i.e., width of the 95% confidence interval). Although four of the five occupational cohort mortality studies observed some increase in risk, in one study the increased risk was based on one exposed prostate cancer death (Ritz 1999) and the other three studies observed risks between 1.1 and 1.2. The Camp Lejeune studies also evaluated prostate cancer mortality and obtained elevated hazard ratios when comparing the Camp Lejeune cohorts to the Camp Pendleton cohorts. For the Camp Lejeune civilian workers, a majority of the prostate cancer deaths occurred among those with exposure durations of four years or more and risks were elevated among those with medium and high cumulative exposure although the trend was not monotonic. Among the seven studies that evaluated prostate cancer incidence, three studies did not observe an increased risk (Raaschou-Nielsen et al. 2003; Hansen et al. 2013; and Buhagan et al. 2016), one study observed a risk near the null value (Christensen et al. 2013), and three observed an increased risk (Axelson et al. 1994; Anttila et al. 1995; and Krishnadasan et al. 2007). Conclusion: ATSDR concludes that there is some evidence for a positive association between TCE and prostate cancer. However, the findings from the cohort and case-control studies are mixed with several studies finding no elevated risk. Therefore, ATSDR concludes that [“]there is below equipoise evidence for causation for TCE and prostate cancer.” Comparison of Camp Lejeune to Camp Pendleton noted: The mortality rate of 154,932 Marines at Camp Lejeune was compared to mortality rates of 154,969 Marines at Camp Pendleton. Mortality rates were also compared to the general US population. By the end of the study period about 6% (n=9,000) of the Marines in both groups died. The Camp Lejeune Marines did not exceed the numbers at Camp Pendleton. The majority of studies of TCE exposure and development of prostate cancer or promotion of prostate cancer have had prolonged significant exposure. The average exposure is greater than 10 years. [The Appellant’s] exposure was : 11/5/65 to 2/4/66 60 days. 7/11/67 to 7/2467] 14 days. 7/769 to 721/69 14 days. His exposure to chemicals post military is not known as information was not given in C file. Review of the records and journal regarding prostate cancer and [the Appellant’s] disease di[d] not indicate his prostate cancer had an unusual presentation, onset or tissue type. The March 2020 VA examiner concluded by citing 23 studies, reports and websites. Discussion The Appellant’s military personnel records confirm his duty at Camp Lejeune for greater than 30 days. Therefore, his service is verified and exposure to contaminated water was conceded by the Agency of Original Jurisdiction (AOJ). However, at the outset, the Board notes that prostate cancer is not a disease listed in 38 C.F.R. § 3.309 (f) and therefore, as a matter of law, presumptive service connection under that regulation is not applicable. Nonetheless, the United States Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact “incurred” during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board will proceed accordingly. As shown in the summary of the record, the Appellant presented in August 1965 to his in-service treatment provider with complaints of pain associated with either urination or pain in the genitourinary system area. It resolved a day later, the STRs show no further complaints or treatment. Moreover, as indicated in the March 2020 VA examiner’s rationale, the Appellant did not serve at Camp Lejeune until November 1965. The Board’s own review of the record shows an Abstract of Service and Medical History included with the STRs, indicating the Appellant’s first posting upon entrance to the United States Marine Corps was for approximately one week with the 12th Infantry Reserve Battalion. He then proceeded to Parris Island, South Carolina, where he remained from August 17, 1965 through October 6, 1965. Only on November 5, 1965, did he then report to Camp Lejeune, North Carolina. Dr. R.R.’s April 2019 medical statement, although opining that prostate cancer “may have resulted from” exposure, he provided no rationale for this opinion. This is inconclusively phrased. More pertinently, the Board must be informed why and how a medical professional arrives at conclusions. The Board cannot substitute its own medical judgment by assuming the opinion is otherwise correct. The Board is well aware the Appellant has submitted articles in support of his assertion. However, this evidence has been addressed in detail above by the March 2020 VA examiner, who has distinguished the findings of the studies from the facts of this case. The Board will not repeat the March 2020 VA examiner’s analysis; it is set forth above. Rather it will note simply that, in short and most particularly, the length of time of exposure to TCE and PCE is determinative, as prolonged use or exposure to these chemicals correlates with the development of prostate cancer. For example, in addressing the positive opinion of Dr. R.S.W., the March 2020 VA examiner noted that it was based on an article addressing 362 cases of workers employed at a nuclear energy and rocket engine testing facility in southern California between 1950 and 1992. They concluded high levels of TCE exposure could be associated with prostate cancer. However, she further observed that the average length of exposure was no less than 18 years in their study. The Appellant’s exposure was for considerably less time, as well as not continuous. Significantly, as a pertinent observation regarding the Appellant’s length of time of direct exposure, as opposed to exposure by ingestion of the camp’s drinking water, the March 2020 VA examiner noted that a review of personnel records indicates the Appellant’s military occupation specialty was as a rifleman, not a vehicle mechanic, thereby suggesting, although a mechanic would likely use TCE and PCE as degreasers for metal parts and surfaces, there is no reasonable basis on which to conclude that a rifleman could possibly have additional and prolonged direct exposure. However, the Board notes from the record that the Appellant has submitted a DD 149 Application for Correction of Military or Naval Record to the relevant authority, asserting that his DD 214 military occupation specialty (MOS) of Rifleman and Proof Technician Helper does not accurately describe his additional duties as a vehicle mechanic. In the application, he states the name and type of the vehicles he serviced and identifies by name his supervising staff sergeant and his company commander in 4th Military Police Battalion. The March 2020 VA examiner noted that the majority of studies of TCE exposure and the development of prostate cancer or promotion of prostate cancer had prolonged significant exposure. The average exposure was greater than 10 years. She further noted on this point that the Appellant’s exposure to chemicals post-military was not known, as information was not given in the claims file. She added that his records regarding prostate cancer otherwise did not indicate the disease had an unusual presentation, onset or tissue type, thereby suggesting to the Board a possible basis to conclude there is an alternative etiology indicating age, genetic disposition, use of tobacco and alcohol, and other established correlative factors. Additionally, although Dr. R.R.’s second opinion dated in March 2020 pre-dates the March 2020 VA examiner’s opinion and rationale, it was not yet associated with the claims file until April 2020 and the March 2020 VA examiner did not have the opportunity to review it. Although Dr. R.R. opined positively for prostate cancer caused by exposure to contaminants at Camp Lejeune and cited several articles in support, significantly, he noted at the beginning of his statement that the Appellant served at Camp Lejeune for 18 months. The Board at this point notes that the opinion of Dr. R.S.W., originally stated in an August 2019 treatment note, also states the Appellant “served there for about 18 months intermittently over a time period from 1965-71.” Dr. R.R.’s and Dr. R.S.W.’s facts are not accurate, as shown by the evidence of record, as already discussed above. The Appellant had less than 100 days spent at Camp Lejeune and, as set forth by the March 2020 VA examiner. Moreover, that total is not continuous but segmented into periods of 60 days, then approximately 15 months passed before a 14 day-period, then approximately 2 years passed before another 14 days. For all the foregoing reasons, the Board therefore ascribes to the March 2020 VA examiner’s medical opinion greater probative weight than the opinions Dr. R.R. and Dr. R.S.W., particularly in consideration of their inaccuracies as to the actual length of time of exposure. The Board acknowledges that the Appellant, as a lay person, is competent to report certain observations and draw certain inferences. However, although it is error to reject categorically a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a lay person is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) drew from an earlier decision to explain its holding. In that earlier decision, the Federal Circuit stated as follows: “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a lay person would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the United States Court of Appeals for Veterans Claims (the Court) has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau and Layno together, the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In the instant case, the Appellant’s five lay statements of record between April 2018 and May 2020 consist overall of the Veteran’s assertion that service connection for the disorders at issue is warranted. As such, these statements only demonstrate a lay person’s belief that a certain legal conclusion should be reached; notably, these lay statements do not describe the initial onset, extent or duration of pain or other observable symptoms of a given claimed disorder. Furthermore, there are no specific contentions as to how such a disability is related to service, other than the series of articles submitted by the Appellant, which have been discussed at length by the March 2020 VA examiner, a Subject Matter Expert for Camp Lejeune contaminated water issues, and a summary by the Board of the most relevant points of her analysis, also provided above. What remains in the Appellant’s lay statements is only the suggestion that prostate cancer is associated with contaminated water at Camp Lejeune. However, any such lay statements linking prostate cancer to his exposure to contaminated water are not competent evidence, as this is a complex question requiring medical training and expertise. See Jandreau, 492 F.3d at 1377. For the foregoing reasons and based on the objective medical evidence, the preponderance of the evidence is against the claim for service connection, presumptive or direct. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.