Citation Nr: 21002237 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-04 299 DATE: January 13, 2021 ORDER Entitlement to service connection for residuals of prostate cancer is granted. Entitlement to service connection for benign urothelial hyperplasia, bladder wall, is granted. FINDINGS OF FACT 1. The Veteran had active duty service at Camp Lejeune, North Carolina for a period of at least 30 days from June 19, 1971 to August 2, 1971. 2. The evidence is at least in equipoise as to whether the Veteran’s current residuals of prostate cancer and benign urothelial hyperplasia, bladder wall, are related to his presumed exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for residuals of prostate cancer have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 2. The criteria to establish entitlement to service connection for benign urothelial hyperplasia, bladder wall, have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from March 1971 to December 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Service Connection 1. Entitlement to service connection for residuals of prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune and/or exposure to herbicide agents; and 2. Entitlement to service connection for benign urothelial hyperplasia, bladder wall, to include as due to exposure to contaminated water at Camp Lejeune and/or exposure to herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The diseases presumed to be associated with herbicide exposure include: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Presumptive service connection pursuant to 38 C.F.R. § 3.309(f) is also relevant to this case. A veteran who served no less than 30 days (consecutive or non-consecutive) at Camp Lejeune between August 1, 1953, and December 31, 1987, is presumed to have been exposed to contaminants in the water supply, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(7)(iii). Contaminants of the Camp Lejeune water supply include trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride. 38 C.F.R. § 3.307(a)(7)(i). Exposure described in 38 C.F.R. § 3.307(a)(7)(iii) is an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in 38 C.F.R. § 3.307(a)(7)(iii) 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. 38 C.F.R. § 3.307(a)(7)(iv). 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. 38 C.F.R. § 3.309(f). The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran contends that he has residuals of prostate cancer and benign urothelial hyperplasia, bladder wall, that are related to his active duty service. One of the Veteran’s theories of entitlement is that these disorders are directly related to his exposure to contaminated water during his active duty service at Camp Lejeune. The Veteran's Record of Service in his military personnel records reflects that he had active duty service at Camp Lejeune from June 19, 1971 to August 2, 1971. As this period amounts to approximately 44 days, the Veteran is presumed to have been exposed to contaminated water during such service. 38 C.F.R. § 3.307(a)(7)(iii). The Board notes that the neither of disorders at issue is one the diseases that is presumed to be associated with exposure to contaminated water at Camp Lejeune under 38 C.F.R. § 3.309(f). However, the Veteran may still be entitled to direct service connection for these disorders based on his presumed exposure to contaminated water at Camp Lejeune during active service. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses related to prostate cancer or benign urothelial hyperplasia, bladder wall. Regarding the Veteran's post-service history of prostate cancer, a June 2012 VA treatment record summarized that the Veteran presented with clinically localized cancer of the prostate in November 2007. He was given 7.5 milligrams of Eligard in January 2008 for cytoreduction, and he underwent radioactive iodine seed implantation in April 2008. Regarding the Veteran’s post-service history of benign urothelial hyperplasia, bladder wall, an April 2018 VA examiner summarized that in 2017, the Veteran was evaluated for gross hematuria. A urine cytology showed atypical cells of unclear significance. A cystoscopy performed in March 2017 identified 2 lesions of the bladder wall. Pathology showed no dysplasia or neoplasia, and no bladder cancer. The Veteran currently followed up every 6 to 12 months. The Board notes that these summaries of the Veteran’s relevant medical history are consistent with information noted in the available treatment records. In connection with the Veteran’s claim, the Veteran was provided with an April 2018 VA examination specific to urinary tract (including bladder and urethra) conditions (excluding male reproductive system). The examiner noted a diagnosis of benign urothelial hyperplasia, bladder wall, that the examiner dated in March 2017. The examiner also marked in the examination report that the Veteran experienced voiding dysfunction, the etiology of which was prostate cancer status post brachytherapy in 2008. In a June 2018 letter, Dr. D. provided a medical opinion related to the Veteran's claims. Dr. D. noted that the Veteran had a history of prostate cancer that was in remission after radiation therapy. He also had a history of exposure to chemicals and contaminated water sources while he was in the military service. In Dr. D.'s medical opinion, it was more likely than not that these exposures contributed to the Veteran's formation of prostate cancer. In addition, the Veteran had a history of unusual lesions in his bladder that on biopsy showed no evidence of cancer. However, Dr. D. opined that these lesions could be partially attributed to the Veteran's history of exposure from his military service. It was Dr. D.'s medical opinion that it was at least as likely as not that these exposures contributed to the formation of unusual lesions in the Veteran’s bladder that caused him to have blood in his urine and necessitated surgery in addition to yearly follow-ups in the future. Dr. D. added that he was able to provide the opinions expressed in the letter with a reasonable degree of medical certainty. In July 2019, a VA examiner provided a negative medical opinion regarding the Veteran’s theory of entitlement that his claimed disorders are related to his presumed exposure to contaminated water at Camp Lejeune. In the rationale, the examiner noted that the Veteran was over 60 years old, and he had received a diagnosis for prostate cancer in 2007 and focal urothelial hyperplasia in 2017. The examiner also observed that the Veteran was based at Camp Lejeune from June 19, 1971 to August 2, 1971 for a total of 44 days. The Veteran also had a prior smoking history as well as a history of excessive alcohol use. He did not have a drug history, and there was no family history of prostate or breast cancer. The examiner explained that the Veteran had major risk factors for prostate cancer that included being at over 50 years old at the time of his diagnosis, obesity, and heavier alcohol intake. Notably, the examiner did not identify the Veteran's smoking history as a major risk factor for prostate cancer. The Board also notes that it appears from the record review included with the opinion that the examiner determined that the Veteran was obese based on her calculation of his body mass index using a weight of 192 pounds that was noted in December 2007, and the Veteran's height that was noted in other records. The examiner also stated that no strong association had been documented between trichloroethylene, tetrachloroethylene, benzene, or vinyl chloride and either prostate cancer or urothelial hyperplasia. Given the identified major risk factors; the fact that the Veteran’s service of only 44 days at Camp Lejeune indicated that he had low levels of exposure to solvents; and the fact that no strong association had been documented between trichloroethylene, tetrachloroethylene, benzene, or vinyl chloride and either prostate cancer or urothelial hyperplasia; it was the examiner’s opinion that the Veteran’s prostate cancer and urothelial hyperplasia were less likely as not caused by or related to his exposure to contaminated water at Camp Lejeune. The examiner cited to several medical articles in support of her negative opinion. In a subsequent January 2020 letter, Dr. D. again noted that the Veteran had a history of prostate cancer that was in remission as well as a history of exposure to contaminated water and chemicals while he was in the Marine Corps. Dr. D. noted that he although he had reviewed the July 2019 VA medical opinion, the examiner was wrong in determining that the Veteran had major risk factors for cancer. First, according to the Prostate Cancer Foundation, there was no direct link between drinking alcohol and an increased risk of prostate cancer. Second, a google search of risks for prostate cancer revealed to Dr. D. that "being obese (very overweight) did not seem to increase the overall risk of prostate cancer." Moreover, Dr. D. noted that the Veteran was not very overweight. Thus, the Veteran did not have major risk factors for cancer as stated by the July 2019 VA examine besides the fact that he was over 50. Additionally, despite the examiner’s finding that no strong association had been documented between trichloroethylene, tetrachloroethylene, benzene, or vinyl chloride and prostate cancer and urothelial hyperplasia; Dr. D. stated that it was well known through Environmental Protection Agency (EPA) studies that there were health effects with positive findings that evaluated exposure to TCE and/or PCE and prostate cancer. A United States EPA draft in 2001 noted that epidemiologic studies, when considered as a whole, have associated TCE exposures with kidney, liver, cervical, and prostate cancer. Thus, Dr. D. opined that it was more likely than not that the Veteran's prostate cancer and urothelial hyperplasia were caused by his exposure to TCE and/or PCE while he was stationed for 44 days at Camp Lejeune. Dr. D. went on to note that the Veteran's reported exposure to chemicals at Naval Air Station (NAS) South Weymouth, Massachusetts and herbicide agents contributed to and/or exacerbated these disorders. Dr. D. stated that it was also his opinion to a reasonable degree of medical certainty that the Veteran's prostate cancer and urothelial hyperplasia were more likely than not caused by his exposure to contaminated water at Camp Lejeune and NAS South Weymouth, Massachusetts. The Board finds that the opinions provided by the July 2019 VA examiner and Dr. D. in June 2018 and January 2020 are probative as both the VA examiner and Dr. D. included full rationales that indicated they had researched relevant scientific and medical literature before determining whether the Veteran had significant risk factors for prostate cancer, and before concluding whether there was evidence to support an association between the Veteran’s claimed disorders and and his presumed exposure to relevant contaminants in the water supply at Camp Lejeune. The Board consequently finds that the evidence is at least in equipoise as to whether the Veteran’s presumed exposure to contaminated water at Camp Lejeune at least partly contributed to the development of his prostate cancer and benign urothelial hyperplasia, bladder wall. Resolving all benefit of the doubt in the Veteran's favor, service connection is granted for residuals of prostate cancer and benign urothelial hyperplasia, bladder wall. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1999). As the Board is granting service connection on this basis, it is unnecessary to address any other theory of entitlement advanced. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.