Citation Nr: A20007354 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190402-16571 DATE: April 30, 2020 ORDER Service connection for carcinoma of the sigmoid colon (colon cancer), to include as due to contaminated water exposure at Camp Lejeune, is granted. FINDING OF FACT By resolving doubt in his favor, the evidence of record demonstrates that the Veteran’s colon cancer is due to contaminated water exposure from his active duty service at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for colon cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from September 1954 to September 1957. The matter originally comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs’ (VA) decision on their claim to seek review. VA had implemented a temporary program titled RAMP, the Rapid Appeals Modernization Program, that allowed Veterans to “opt-in” to the new claims and appeals process before AMA went into full effect. The Veteran was notified of his opportunity to participate in the RAMP program, and he chose to participate in that program in October 2018. He was notified in January 2019 that his appeal of service connection for colon cancer was withdrawn from the legacy appeal process and were moved to the higher-level review lane. The regional office (RO) continued to deny the Veteran’s claim of service connection for colon cancer in January 2019 rating decision. In April 2019, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal). He elected the Hearing lane with a Veterans Law Judge, indicating that he wanted a Board hearing and the opportunity to submit any additional evidence in support of the appeal within 90 days after the hearing. Accordingly, a hearing was held in September 2019 before the undersigned. A transcript is of record. Within 90 days of the hearing, the Veteran submitted additional evidence which will be considered herein. The Veteran asserts that his colon cancer was due to contaminated water exposure while he was stationed at Camp Lejeune. His military personnel records confirm he was stationed at Camp Lejeune from January 1955 to February 1955. The Board notes that in the January 2019 AMA rating decision, the RO made the favorable finding that the Veteran had qualifying service at Camp Lejeune, North Carolina such that exposure to contaminated water in service was acknowledged Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 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 Veteran’s service treatment records do not reveal any complaints, findings, treatment, or diagnoses related to colon cancer, and he has not asserted that his colon cancer manifested during service. Post-separation, the evidence shows the Veteran has a history of colon cancer starting from 1976. His VA medical records indicate routine treatments such as colonoscopies for his asymptomatic colon cancer. In March 2018, a VA examiner opined it was less likely than not that the Veteran’s colon cancer was due to contaminated water exposure while he was posted at Camp Lejeune. The examiner explained that colon cancer was not a presumptive condition, and therefore unrecognized to have association to contaminated water exposure by medical and scientific evidence collected by VA. Further, the Veteran was only exposed to contaminated water for a month which was less than the mean duration of 21.3 months exposure used for the published studies of Camp Lejeune Marines. Finally, the Veteran was not diagnosed with colon cancer until 24 years after separation. A September 2018 VA treatment note shows a gastroenterologist opined that she was unable to provide data or commentary on a potential association between Camp Lejeune water and the Veteran’s colon cancer. The Veteran’s private gastroenterologist, Dr. S.S., submitted letters in August 2016 and September 2019 opining that his colon cancer was at least as likely as not due to contaminated water exposure from his service at Camp Lejeune. Dr. S.S. had been treating the Veteran for years due to his recurrent colon polyps. He explained the Veteran had no familial history of colon cancer to otherwise explain the etiology of the disease. Dr. S.S. also submitted a number of medical articles on the association of organic solvents to multiple malignancies, including colon cancer, to support his opinion. Based on the evidence, and by resolving doubt in the Veteran’s favor, the Board finds that service connection for colon cancer, to include as due to contaminated water exposure, is warranted. As noted above, the March 2018 VA examiner’s opinion indicates that the Veteran’s colon cancer was not related to service, to include the contaminated water exposure, because he was diagnosed with colon cancer 24 years after service—which one would expect to happen in such a case like this—and because he only had 1 month of exposure rather than the 21-22 months of average exposure that Marines in the studies had. In contrast, the Veteran’s private physician, Dr. S.S., indicated that the Veteran’s contaminated water exposure was at least as likely as not the cause of his colon cancer, given the lack of a familial history of that type of cancer and based on the submitted medical literature. Both opinions are equally probative and therefore, the Board finds that the evidence is at least in equipoise in this case as to whether the Veteran’s contaminated water exposure caused his colon cancer. Accordingly, based on the competent medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that his colon cancer is due to contaminated water exposure from Camp Lejeune and direct service connection is granted. See 38 C.F.R. § 3.303. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.