Citation Nr: 21000807 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-16 413 DATE: January 6, 2021 ORDER Entitlement to service connection for colon cancer secondary to contaminated water exposure at Camp Lejeune is denied. Entitlement to service connection for a prostate disorder, specifically benign prostatic hypertrophy (BPH), to include as secondary to contaminated water exposure at Camp Lejeune, is denied. FINDINGS OF FACT 1. The weight of the evidence does not show that the Veteran’s colon cancer was incurred in or resulted from service, to include as secondary to contaminated water exposure at Camp Lejeune. 2. The weight of the evidence does not show that the Veteran’s BPH was incurred in or resulted from service, to include as secondary to contaminated water exposure at Camp Lejeune; or was caused by, aggravated by, or otherwise related to any service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for colon cancer are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for BPH are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was inducted into active service in December 1951 and served until December 1953. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from February 2016 and November 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The claims were last before the Board in April 2019, at which time it, in part, remanded service connection claims for BPH, colon cancer, and tinnitus. In June 2020, the RO granted service connection for tinnitus. As this issue was resolved by a full grant of benefits and the Veteran has not submitted any documents indicating that he is not satisfied with the decision, the Board finds that this issue is no longer part of the current appeal. See 38 C.F.R. § 19.26(d). However, the service connection claims for BPH and colon cancer remain on appeal. The Veteran did not request a hearing before the Board. See December 2017 VA Form 9. In a May 2015 letter, Dr. C.E.M.Q. addressed the Veteran’s ability to secure and maintain substantially gainful employment. Although a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities can be inferred under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Board notes that in Rice, the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. However, in order for TDIU to be inferred as part and parcel of a pending claim, there must be a pending appeal from an assigned disability rating. Id. Here, the claims currently on appeal are service connection claims, and none represent an appeal from an assigned disability rating. As such, the Board does not address a TDIU claim herein. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). The Board notes that the Veteran’s active duty service treatment records (STRs) are unavailable, per a Request for General Information dated September 2015. In cases where the Veteran’s STRs are unavailable through no fault of the Veteran, there is a heightened obligation to explain findings and to carefully consider the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). There is also a heightened obligation to assist the claimant in the development of his case. Id. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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). Service connection 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking contaminated water with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs: TCE, a metal degreaser; and PCE, a dry-cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011). The Board notes that the Veteran’s service personnel records document his presence at Camp Lejeune during this period of time. Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant, such as the Veteran in the instant case, who served at Camp Lejeune, was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. There are studies involving the impact of such contaminated water, which involved the National Academy of Sciences, National Research Council (NRC), and the Agency for Toxic Substances and Disease Registry (ATSDR). Based on a congressional mandate, the Navy requested that the NRC undertake a study to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009), the NRC reviewed previous work done by the ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual. To address potential long-term health effects, the NRC focused on diseases associated with TCE, PCE, and other VOCs. Based on analyses of scientific studies involving these chemicals, the NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. The NRC analysis used categories of potential disease “health outcomes.” The categories included: (1) sufficient evidence of a causal relationship, (2) sufficient evidence of an association, (3) limited/suggestive evidence of an association, (4) inadequate/insufficient evidence to determine whether an association exists, and (5) limited suggestive evidence of no association. The analysis found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited/suggestive evidence of an association. These fourteen diseases are esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. Furthermore, VA subsequently established a presumption of service connection for certain diseases for veterans, former reservists, and former National Guard members who were exposed to contaminants in the water supply while serving at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987. Specifically, VA regulations provide a presumption of service connection for kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer, which have become manifest to a degree of 10 percent or more at any time after service if the Veteran was stationed at Camp Lejeune between August 1, 1953, and December 31, 1987. See 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran’s personnel records show that he served approximately 60 days in 1953 at Camp Lejeune. However, none of the claimed disabilities are presumptively related to contaminated water exposure at Camp Lejeune. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for colon cancer secondary to contaminated water exposure at Camp Lejeune The Veteran contends that his colon cancer is due to exposure to contaminated water while stationed at Camp Lejeune. See March 2015 statement, July 2015 statement. He also asserts that his colon cancer first manifested during service as he began having stomach problems during service, which then affected his intestine and subsequently developed into colon cancer. See January 2017 Notice of Disagreement (NOD). Evidence As noted above, the Veteran’s STRs are unavailable. An August 2001 letter from Dr. B.E.B.P. reflects that the Veteran was first seen in December 1998 with a history of rectal bleeding for three weeks. He underwent low anterior resection of the rectosigmoid colon and descending colostomy in January 1999, which revealed a well-differentiated adenocarcinoma arising from a tubulovillous tumor infiltrating the submucosa. He had a chemoport, chemotherapy, and radiotherapy. In August 1999, the Veteran had a colostomy closure and removal of the chemoport. There had been no evidence of recurrence or metastasis. In a May 2015 letter, Dr. C.E.M.Q. noted that the Veteran was diagnosed with colon adenocarcinoma in 1998. He then opined that the Veteran had numerous disorders, including “metabolics” and “neoplasic diseases,” that were more probable than not secondary to service. An October 2016 VA examination report reflects review of the Veteran’s claims file. He was diagnosed with rectal adenocarcinoma in January 2000, 46 years after last being at Camp Lejeune briefly for approximately 60 days in 1953; and treated with resection, chemotherapy, and radiation therapy with no evidence of recurrence of the disease. The Veteran had recognized risk factors for rectal cancer, such as age, smoking history, being overweight, and having diabetes mellitus type II (DM II). The examiner discussed colon cancer, the risk factors, contamination of the water supply at Camp Lejeune, and studies before opining that, based on the weight of the evidence from current literature review as well as analysis of risk factors, the Veteran’s colon cancer was not due to or caused by exposure to contaminated water at Camp Lejeune. A January 2020 VA examination report reflects review of the Veteran’s claims file and Camp Lejeune medical literature. The Veteran was diagnosed with colon cancer in December 1999. He served at Camp Lejeune, where he stated he was exposed to contaminated water. He reported having stomach problems during service, moving back to Puerto Rico, starting to have rectal bleeding episodes in 1998, and being diagnosed with colon cancer. He denied any current complaints, and did not have any signs or symptoms attributable to his colon cancer. The examiner opined that the Veteran’s colon cancer was less likely than not incurred in or caused by service. Although the Veteran reported experiencing in-service stomach problems, which he contended led to intestinal issues and eventually colon cancer, medical evidence demonstrates that he was diagnosed with colon cancer 46 years after separation from service. The time that passed from separation and diagnosis made it less likely than not that any in-service stomach complaints were related to the colon cancer diagnosed many years later. The examiner also addressed the relationship between colon cancer and contaminated water at Camp Lejeune, but merely limited such discussion to there being no sufficient scientific or medical evidence supporting a presumption between colon cancer and exposure to contaminants in the water supply at Camp Lejeune. The examiner thus concurred with the October 2016 VA opinion as it was based on peer review of the medical literature and documented medical evidence. Analysis Based on a review of the record, the Board finds that the evidence weighs against finding in favor of the Veteran’s service connection claim for colon cancer. As an initial matter, the Veteran has been diagnosed with rectal adenocarcinoma and colon cancer, although it does not appear that he currently has any signs or symptoms associated with such. See October 2016 VA examination report, January VA examination report. Regardless, even assuming a current disability, service connection still fails. Although STRs are not available, the Veteran was stationed at Camp Lejeune for approximately 60 days in 1953, at which time he contends that he was exposed to contaminated water. Additionally, the Veteran reported stomach problems during service, which he contended was the onset of his colon cancer. However, the January 2020 VA examiner opined that the Veteran’s colon cancer was less likely than not incurred in or caused by service based on the length of time, specifically 46 years, between service and the diagnosis of colon cancer in December 1999. Therefore, the weight of the evidence reflects an onset of symptoms over 40 years after separation from service, which is one factor against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Additionally, both the October 2016 and January 2020 VA examiners opined that the Veteran’s colon cancer was not due to or caused by exposure to contaminated water at Camp Lejeune. After a detailed review of current literature and analysis of risk factors, the October 2016 VA examiner provided a negative opinion, stating that colorectal cancers were the fourth most common type of cancer in the United States, and that while there was limited data available in some environmental studies indicating a possibility of a slight increase in risk of developing primarily rectal cancer from exposure to perchloroethylene (PERC), other studies did not support such a finding. Additionally, increased levels of PERC were not present at the time the Veteran was at Camp Lejeune. The January 2020 VA examiner concurred with this opinion. Although Dr. C.E.M.Q., in his May 2015 letter, opined that the Veteran’s metabolic and neoplasic diseases were more probable than not secondary to service, the Board finds the opinion inadequate to decide the claim. There is no indication that Dr. C.E.M.Q. reviewed the Veteran’s claims file and, as such, it appears that the doctor based his opinion on the Veteran’s lay history alone. He also offered no supporting rationale. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). As such, Dr. C.E.M.Q.’s opinion is afforded little to no probative weight. Additionally, the Veteran is not competent to render a medical opinion because he is not shown to possess the requisite medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Therefore, to the extent that the Veteran indicates that his colon cancer is related to service, the Board finds the Veteran’s lay assertion regarding nexus to be not competent or probative. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for colon cancer. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. 2. Entitlement to service connection for a prostate disorder, specifically BPH, to include as secondary to contaminated water exposure at Camp Lejeune In his March 2016 NOD, the Veteran contended that his BPH was related to his colon cancer. Evidence As noted above, the Veteran’s STRs are unavailable. VA treatment records reflect a normal prostate examination in July 2001. In a May 2015 letter, Dr. C.E.M.Q. notes that the Veteran complained of dysuria, urgency, hesitancy, decreased stream caliber, incomplete emptying of the bladder, double voiding, post-void dribbling, and recurrent urinary tract infections. He then opined that the Veteran had numerous disorders, including “metabolics” and “neoplasic diseases,” that were more probable than not secondary to his service. An October 2015 VA treatment record reflects the Veteran’s report of urinary urgency and dribbling for several months, and assessment of BPH. A January 2020 VA examination report reflects review of the Veteran’s claims file and Camp Lejeune medical literature. The Veteran had been diagnosed with BPH in February 2016. He reported starting to have difficulty urinating in approximately 2016, at which time he visited a private urologist and was diagnosed with an enlarged prostate. Despite the medication prescribed, he continued to urinate several times during the night. He had a voiding dysfunction due to his BPH. A physical examination was not provided, per the Veteran’s request. The examiner opined that the Veteran’s BPH was less likely than not incurred in or caused by service as the Veteran was diagnosed with BPH in 2016, more than 50 years after separation from service. The time frame that had passed between service and diagnosis made it less likely than not that the in-service exposure to contaminants in the water supply at Camp Lejeune was related to the diagnosis of BPH many years later. The examiner also noted that there was no sufficient scientific or medical evidence to support the creation of a presumption between BPH and exposure to contaminants in the water supply at Camp Lejeune. Analysis Based on a review of the evidence of record, the Board finds that the evidence weighs against finding in favor of the Veteran’s service connection claim for BPH. As an initial matter, VA treatment records and the January 2020 VA examination report reflect a current diagnosis of BPH. In his March 2016 NOD, the Veteran contended that his BPH is related to his colon cancer. Unfortunately, his colon cancer is not service connected. Thus, service connection cannot be granted on a secondary basis. As stated above, although STRs are not available, the Veteran was stationed at Camp Lejeune for approximately 60 days in 1953, at which time he contends that he was exposed to contaminated water. However, the January 2020 VA examiner opined that the Veteran’s BPH was less likely than not incurred in or caused by service based on the length of time, specifically more than 50 years, between service and the diagnosis of BPH. See Maxson, supra. Although Dr. C.E.M.Q., in his May 2015 letter, opined that the Veteran’s disorder was more probable than not secondary to service, the Board finds the opinion inadequate to decide the claim. There is no indication that Dr. C.E.M.Q. reviewed the Veteran’s claims file and, as such, it appears that the doctor based his opinion on the Veteran’s lay history alone. He also offered no supporting rationale. As stated above, the Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See Reonal, supra; Moreau, supra; Swann, supra. As such, Dr. C.E.M.Q.’s opinion is afforded little to no probative weight. Additionally, the Veteran is not competent to render a render a medical opinion because he is not shown to possess the requisite medical training. See Jandreau, 492 F.3d at 1377 n. 4. Therefore, to the extent that the Veteran indicates that his BPH is related to service, the Board finds the Veteran’s lay assertion regarding nexus to be not competent or probative. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for BPH. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee, 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.