Citation Nr: 21001757 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 00-13 483 DATE: January 11, 2021 ORDER Entitlement to service connection for a chronic genitourinary disorder (claimed as urinary tract or prostate cancer), as secondary to alcohol use disorder and exposure to contaminated water at Camp Lejeune, is granted. FINDING OF FACT The Veteran’s chronic genitourinary disorder (claimed as urinary tract or prostate cancer) is proximately due to/aggravated beyond its natural progression his service-connected schizoaffective disorder and posttraumatic stress disorder with secondary alcohol use disorder, and also due to exposure to Camp Lejeune contaminated water. CONCLUSION OF LAW The criteria for service connection for a chronic genitourinary disorder (claimed as urinary tract or prostate cancer), as secondary to alcohol use disorder and exposure to contaminated water at Camp Lejeune have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1974 to February 1978. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. The matter was previously before the Board several times. In March 2006, the matter was remanded for additional development. In December 2010, the Board initially denied service connection. In December 2011, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s decision and remanded the matter back to the Board for further consideration. In May 2012, the Board remanded the matter for further development. In February 2013, the Board denied the Veteran’s claim for service connection once again. In May 2014, the Court again vacated the Board’s decision and remanded the matter for further consideration. In March 2015, the Board remanded the matter for further development. In December 2016, the Board denied service connection once again. In November 2017, the Court, once again vacated the Board’s decision and remanded the matter for further consideration. In June 2018, the Board remanded the matter for additional development and afford the Veteran a new VA examination, consistent with the Court’s remand order. The Board finds that there has been substantial compliance with its remand directives and the matter is properly before the Board. Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). Service Connection Service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminated water at Camp Lejeune if a veteran, former reservist, or member of the National Guard shows: (1) that he or she served at Camp Lejeune for no less than 30 consecutive or nonconsecutive days between August 1, 1953 and December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). This presumption may also be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing provisions regarding presumptive service connection for exposure to contaminated water, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In each case where a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the veteran’s service as shown by the veteran’s service record, the official history of each organization in which the veteran served, the veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must assess the credibility and weight of all 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 appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a chronic genitourinary disorder (claimed as urinary tract or prostate cancer), as secondary to alcohol use disorder and exposure to contaminated water at Camp Lejeune The Veteran contends that service connection is warranted for a chronic genitourinary disorder (claimed as urinary tract or prostate cancer) because it was caused due to exposure to contaminated water while serving at Camp Lejeune, or secondary to service-connected connected schizoaffective disorder and posttraumatic stress disorder with secondary alcohol use disorder. In the previous remand by the Board in June 2018, the Board noted that the Court found that the Board had previously failed to ensure substantial compliance with previous remand instructions. Therefore, the matter was remanded for another VA examination in order to ensure compliance with previous remand instructions. A post remand VA examination was afforded to the Veteran in June 2020. A diagnosis of prostate carcinoma was noted. The examiner opined that the Veteran’s condition is less likely as not (less than 50/50 probability) caused by, or as a result of the Veteran’s exposure to contaminated water at Camp Lejeune. The examiner provided a rationale that the Agency for Toxic Substances and Disease Registry (ASTDR) concluded that while there was some evidence for a positive association with Trichloroethylene (TCE) Toxicity. However, the findings from the cohort and case control studies are mixed with several studies finding no elevated risk. Therefore, ASTDR concluded that there is below equipoise evidence for causation TCE and prostate cancer. The examiner also added that ATSDR concluded that there was insufficient evidence to determine whether an association exists between Perchloroethylene (PCE) exposure and prostate cancer. Therefore, ATSDR concluded that there is below equipoise evidence for causation for PCE and prostate cancer. Another VA examination was afforded to the Veteran in July 2020. A diagnosis of overactive bladder was noted. The examiner also noted that the Veteran struggled with alcohol use following military service, and opined that it likely contributed to his diagnosis of overactive bladder by causing detrusor muscle irritability. The examiner noted that the Veteran reported burning on urination, urinary frequency, and nocturia during his time in service. See March 1974 STR. However, the examiner attributed the Veteran’s condition to an infection of the foreskin of the penis and provided a negative etiology opinion. A December 2020 post remand brief was submitted by the Veteran’s representative. She argued that the Veteran underwent a circumcision while serving, to treat his infection that was previously noted by the July 2020 VA examiner. However, even after the circumcision, the bladder issues continued. She also added that the Veteran was granted service connection for schizoaffective disorder and posttraumatic stress disorder with secondary alcohol use disorder during the pendency of the appeal and that service connection on a secondary basis is now warranted because the July 2020 examiner attributed the Veteran’s condition to the use of alcohol. As noted above, secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran has a current diagnosis of a bladder condition. His alcohol use disorder is a recently granted service-connected disability and the July 2020 VA examiner attributed the Veteran’s bladder condition to alcohol use. Furthermore, a December 2020 private medical examination by Dr. S.B. was submitted by the Veteran. The private examiner reviewed the previous VA examinations and added that it is imperative to recognize that hydrocarbons such as dioxin/benzene are retained in some body tissues for a long time (even decades), so target organ exposure can involve protracted exposure of many organs. The examiner added that dioxin and its inherent properties have the propensity to stay dormant in the human body for decades before symptoms are apparent. Thus, he concluded that the Veteran’s prostate cancer was at least as likely as not secondary to water contamination due to service at Camp Lejeune. In light of the conflicting medical evidence in the record, the evidence is at least in equipoise whether the Veteran’s condition is secondary to his alcohol use disorder and exposure to contaminated was at Camp Lejeune. Thus, affording the Veteran the benefit of the doubt, the Board finds that entitlement to service connection for a chronic genitourinary disorder (claimed as urinary tract or prostate cancer), as secondary to alcohol use disorder and exposure to contaminated water at Camp Lejeune is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.