Citation Nr: 21002269 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-11 082 DATE: January 13, 2021 ORDER Entitlement to service connection for a colon disability, to include colon cancer, due to contaminated water exposure at Camp Lejeune is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of colon cancer. 2. The Veteran does not have a colon disability related to service. CONCLUSION OF LAW The criteria for service connection for a colon disability, to include as due to contaminated water exposure at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1975 to August 1977, to include service at Camp Lejeune. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for colon cancer, squamous cell carcinoma of finger, headaches, and mental condition. In January 2018, the Board remanded the claim for service connection for colon cancer for further development, and denied service connection for “squamous cell carcinoma of the finger,” “a headache disability,” and “a mental disorder.” In July 2020, the Board remanded the claim for service connection for colon cancer for compliance with the January 2018 Board remand. For the following reasons, the Board finds that all requested development has been completed and there was substantial compliance with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board had requested the RO associate all outstanding VA treatment records and a September 2012 examination report with the claims file, to conduct any other development necessary such obtaining an additional opinion if warranted, and to readjudicate the claim. Records were requested from the Veteran in July 2020, and VA treatment records were associated with the claims file in July, August, and October 2020. Regarding the September 2012 VA examination report, the Board notes that the RO had requested a VA medical opinion in September 2012, and that opinion, which was cited to in the November 2012 rating decision, shows that the Veteran was not seen for examination. The September 2012 VA opinion is associated with the claims file and available for review. Additionally, the RO requested an additional opinion from the September 2012 VA subject matter expert; due to his unavailability, an opinion was given by another VA provider. Lastly, the case was readjudicated in an October 2020 Supplemental Statement of the Case. 1. Claim for Colon Cancer Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds (VOCs), 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 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 following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). Colon cancer is not a disease for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id. Notwithstanding the foregoing presumption provisions for exposure to contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection with proof of direct causation. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). For the following reasons, the Board finds that service-connection for colon cancer is not warranted. The Veteran served at Camp Lejeune from September 1975 to December 1975 and is presumed to have been exposed to contaminated water during service. The Veteran’s service treatment records are negative of complaints, treatment, or diagnosis of colon cancer. Post-service medical records do not support a diagnosis of colon cancer. Numerous medical treatment records in the claims file are from Social Security Administration (SSA) records. In an October 2007 medical record within SSA documents, it was noted the Veteran had a colonic mass. In May 2008, a history of present illness relayed by the Veteran included “he does have a history of colon cancer.” In a March 2009 visit for sinusitis, the Veteran reported a history of colon cancer. From an April 2009 visit for headaches, a history of present illness was recorded as including “history of colon cancer, it is stable.” In May 2009, it appears as though the Veteran was assessed as having colon cancer in a handwritten notation that may be interpreted as “Colon Ca” with colonoscopy noted under plan. In October 2007, the Veteran had undergone a colonoscopy. The results showed no evidence of invasive malignancy, and a large benign polyp in the right colon. In a March 2018 record, the Veteran had reported having a history of colon cancer. Results from a July 2018 colonoscopy show no evidence of dysplasia or carcinoma was identified. In a September 2018 neurological evaluation, the Veteran’s active problems as described by the Veteran were documented as including “colon cancer.” An August 2019 VA treatment record shows the Veteran is at high risk for colorectal cancer because of his history with colon polyps. However, colon cancer has not been formally diagnosed, and mention of which appears throughout the claims file only as a history reported by the Veteran during various medical visits. From a September 2012 VA examination, a VA doctor opined that the Veteran “did not have colon cancer.” The doctor wrote that records demonstrate that although he had a large colon polyp (tubular adenoma by biopsy), the Veteran underwent a right colectomy in October 2007, the pathology report showed no malignancy. In addition to the Veteran’s lack of colon cancer diagnosis, in January 2019, a VA examiner provided an opinion regarding the Veteran’s claim as pertaining to his condition of history of polyps. Noting that the Veteran was currently 61 years old and exposed to Camp LeJeune harmful chemicals for approximately 702 days, he opined that the Veteran’s polyps had less than a 50 percent probability of being caused by or a result of the Veteran’s exposure to the contaminated water. He relied on medical literature, scientific studies, and cited to Mayo Clinic regarding polyps. The VA examiner found that based on review of the medical records provided and medical literature, there is no direct or causal connection between the Veteran’s colon polyp and his exposure to contaminated drinking water while stationed at Camp Lejeune because he was not diagnosed with colon polyp until approximately 2007, which was over 30 years from time of exposure; the January 2019 VA examiner included that the Veteran’s risk factors of age, history of colon polyps, and history of smoking are more likely to explain his diagnosis. Additionally, the committee concluded that there is inadequate/insufficient evidence to determine whether an association exists between chronic exposure to TCE or PCE and colon cancer. Based on these findings, he provided the opinion that the Veteran’s condition of colon polyp is less than 50 percent probability caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune. In July 2020, another opinion was sought by a subject-matter expert regarding whether the Veteran had colon cancer that was related to his service in Camp LeJeune. The VA examiner wrote there is no medical basis for “such an assumption” and noting the condition is not in the list of presumptive Camp Lejeune conditions, that the etiology of the Veteran’s colon polyps is multifactorial including smoking, genetic, familial, inflammation and dietary factors. The VA examiner wrote that the exact etiology for this Veteran’s condition may be any one of these factors, alone or in combination, but that contaminated water at Camp Lejeune has not been recognized as one of them. The Board finds that the VA medical opinions are supported by an accurate review of the facts. The VA physicians specifically addressed the Veteran’s medical history, referenced pertinent information in the record, cited several scientific research articles, and provided a rationale for the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. §§ 1110, 1131; see also Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992) (there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury). In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as current disability, there must be evidence of the condition at some time during the claim period or approximate thereto. See Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (the Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In this case, the Veteran does not have colon cancer. Therefore, service connection cannot be granted for colon cancer. In addition, the Board has also considered whether the Veteran has a current colon disability related to service and subject to service connection. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ((a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim”). Thus, the Board has recharacterized the claim on appeal consistent with Clemons. Pertaining to the Veteran’s colon disorder, the Veteran does not have colon polyps that developed from service. The VA examiners attributed the Veteran’s history of colon polyps as being likely related to other risk factors, such as history of heavy smoking and age; the Veteran was 50 years old when diagnosed with polyps. The VA examiner in January 2019 concluded the Veteran did not have at least a 50 percent likelihood as being caused from service due to the amount of time of approximately three decades between development of polyps and military service. Neither the lay nor medical evidence reflects that there were symptoms that occurred during the Veteran’s service and the Veteran has not argued otherwise. Additionally, colon polyps are not recognized as presumptively related to contaminated water at Camp LeJeune and not found to be otherwise related to contaminants in this case by the VA examiners assessing the case. There is no other medical opinion on the matter. For the foregoing reasons, the preponderance of evidence is against the Veteran’s claim of service connection for colon cancer or a colon disability. The benefit of the doubt doctrine is therefore not for application and the claim of service connection due to contaminated water exposure at Camp Lejeune must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.