Citation Nr: 21000726 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-10 436 DATE: January 6, 2021 ORDER Entitlement to service connection for mastectomy to include as secondary to exposure to contaminated water at Camp Lejeune is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as secondary to exposure to contaminated water at Camp Lejeune and secondary to asthma is remanded. Entitlement to service connection for a heart condition to include as secondary to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for lung nodules to include as secondary to exposure to contaminated drinking water at Camp Lejeune is remanded. Entitlement to service connection for hepatic steatosis to include as secondary to exposure to contaminated water at Camp Lejeune is remanded. FINDING OF FACT The preponderance of the evidence is against finding that mastectomy occurred during active service or is otherwise related to an in-service injury or disease, including contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for mastectomy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Marine Corps from September 1981 to September 1985. These matters appear before the Board of Veterans’ Appeals (Board) on appeal of a June 2016 rating decision of the Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge via videoconference from Cleveland, Ohio; a transcript is of record. Of note, the Veteran claimed service connection for lung cancer to include as secondary to contaminated water at Camp Lejeune. The Veteran’s treatment records do not show the Veteran has been diagnosed with lung cancer; however, the Veteran was diagnosed and treated for lung nodules. Under Clemons, the Court held that a claim is not necessarily limited in scope to a single or particular diagnosis and should be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009). Accordingly, the Board recharacterized the Veteran’s claim on the title page. Entitlement to service connection for mastectomy to include as secondary to exposure to contaminated water at Camp Lejeune The Veteran contends that he is entitled to service connection for mastectomy to include as secondary to exposure to contaminated water at Camp Lejeune. The Board finds that the preponderance of the evidence is against granting the Veteran’s claim because the evidence instead shows that the Veteran’s condition was less likely than not related to service, including contaminated drinking water. 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 compound 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 new provision 38 C.F.R. § 3.309 (f), (i.e., adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease), 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 rulemaking applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 9, 4173-4185 (January 13, 2017). In July 2002, the Veteran underwent a subcutaneous mastectomy for a left breast tumor consistent with gynecomastia. The Veteran’s private treatment records include a surgical pathology consultation report which indicated a biopsy of the Veteran’s left breast revealed gynecomastia and no malignancy. The Veteran submitted an examination completed by the Veteran’s physician, Dr. D.T.D., addressing his left mastectomy. Dr. D.T.D. noted the Veteran had a growth on the Veteran’s left breast which resulted in a mastectomy. The physician noted the growth was benign and caused by gynecomastia. Consequently, the Veteran is not entitled to presumptive service connection for a left mastectomy secondary to contaminated water, as it is not one of the enumerated disabilities. Despite presumptive service connection not being warranted, the Veteran may be entitled to service connection through a direct theory of entitlement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran had a mastectomy in July 2002. Further, exposure to contaminated water at Camp Lejeune is conceded because the Veteran had eligible service between August 1983 through his separation in September 1985. The question left for the Board is whether the Veteran’s mastectomy was a result of his military service, including exposure to contaminated water at Camp Lejeune. A VA opinion to determine the nature and etiology of the tumor and subsequent mastectomy was obtained in June 2016. The June 2016 VA examiner concluded that the Veteran’s left mastectomy was less likely than not related to service including as secondary to exposure to contaminated water at Camp Lejeune. The examiner noted that the Veteran’s treatment records show the tumor was not malignant and was a result of gynecomastia. The examiner explained that gynecomastia is swelling of the breast tissue in boys or men caused by a hormone imbalance, which may be caused by substances, including alcohol. The examiner noted the Veteran’s medical records indicate alcohol use. Specifically, the examiner noted a May 2015 treatment note where the Veteran reported drinking a 30-pack of beer and fifth of whiskey a day for ten years. This opinion is highly probative, as it was provided by a medical professional with specialized training and contained a rationale consistent with the evidence in the record. While the Board acknowledges that the Veteran believes his left mastectomy was a result of the contaminated water at Camp Lejeune, he lacks the specialized knowledge needed to provide a competent nexus opinion. The issue is medically complex as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the June 2016 VA opinion. Accordingly, entitlement to service connection for mastectomy, including as due to contaminated water at Camp Lejeune is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for COPD to include as secondary to exposure to contaminated water at Camp Lejeune and secondary to asthma is remanded. 2. Entitlement to service connection for a heart condition to include as secondary to exposure to contaminated water at Camp Lejeune is remanded. 3. Entitlement to service connection for lung nodules to include as secondary to exposure to contaminated drinking water at Camp Lejeune is remanded. The Veteran contends that he is entitled to service connection for COPD, a heart condition, and lung nodules to include as secondary to exposure to contaminated water at Camp Lejeune. The Veteran has been diagnosed with COPD, a heart condition, and lung nodules since 2015. Furthermore, as noted above, exposure to contaminated water is conceded because the Veteran had qualifying service at Camp Lejeune from August 1983 until his separation. As noted above, a veteran may be entitled to service connection presumptively for specific conditions as a result of exposure to contaminated water at Camp Lejeune. Notwithstanding the presumption, service connection for a disability claimed as due to contaminated water at Camp Lejeune, North Carolina, may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). The claimed conditions are not enumerated in 3.309(f); therefore, they are not presumptively service connected. Accordingly, the question left before the Board is whether the Veteran’s current disabilities are causally linked to contaminated water at Camp Lejeune. During the Veteran’s November 2019 hearing, he testified that his physicians explained his conditions may be a result of his exposure to contaminated water. The Veteran has not been afforded VA examinations to determine the nature and etiology of these conditions, specifically whether it is at least as likely as not the contaminated water at Camp Lejeune caused these conditions. Accordingly, the claims of entitlement to service connection for COPD, a heart condition, and lung nodules are remanded for new VA examinations. 4. Entitlement to service connection for hepatic steatosis to include as secondary to exposure to contaminated water at Camp Lejeune is remanded. The Veteran contends that he is entitled to service connection for hepatic steatosis to include as secondary to contaminated water at Camp Lejeune. In December 2018, a VA opinion was obtained to determine the nature and etiology of the Veteran’s hepatic steatosis. The examiner determined the Veteran’s hepatic steatosis diagnosis was unconfirmed because there is no evidence that a treating or attending physician affirms the diagnosis of hepatic steatosis. For context, the Veteran submitted a radiology report of an ultrasound done on his liver which indicated increased hepatic echogenicity consistent with diffuse hepatocellular disease, most commonly hepatic steatosis. The examiner indicated there was no evidence that this diagnosis is confirmed by a physician other than the radiologist. However, a January 2015 treatment note indicates the Veteran was called with the results and needed to implement a low cholesterol, low fat diet as a result. The Board finds that this is evidence that the diagnosis may be confirmed by the Veteran’s treating physician. Accordingly, an addendum opinion must be obtained, and the Veteran’s claim of entitlement is remanded. The matters are REMANDED for the following action: 1. Obtain an opinion regarding the Veteran’s claim of entitlement to service connection for COPD, heart condition, and lung nodules. The examiner must review the claims file. A physical examination should only be scheduled if deemed necessary by the examining clinician. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a) Is COPD at least as likely as not related to contaminants in the water during service at Camp Lejeune? b) Is any diagnosed heart condition at least as likely as not related to contaminants in the water during service at Camp Lejeune? c) Are lung nodules at least as likely as not related to contaminants in the water during service at Camp Lejeune? Provide a rationale to support the opinions. The examiner is advised that a negative opinion cannot be based solely on the fact that COPD, any diagnosed heart condition, and lung nodules is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hepatic steatosis is at least as likely as not related to in-service exposure to contaminated water at Camp Lejeune. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.