Citation Nr: 21061413 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-22 752 DATE: October 4, 2021 ORDER Service connection for prostate cancer is denied. Service connection for nerve damage is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's prostate cancer began during active service, or that it is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's nerve damage began during active service, or that it is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for nerve damage are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1949 until his honorable discharge in December 1952. The Veteran died in 2019, and the appellant is the Veteran's surviving spouse. Prior to his death, the Veteran had timely appealed a March 2016 decision by the Des Moines, Iowa, Regional Office of the United States Department of Veterans Affairs (VA), which had denied service connection for prostate cancer and nerve damage. At the time of his death, the Veteran's appeal remained pending before the Board of Veterans' Appeals (Board). Following notification of the Veteran's death in 2019, the Board issued a decision in August 2019 dismissing the pending claims on appeal under 38 U.S.C. § 7104(a) and 38 C.F.R. § 20.1302 based on lack of jurisdiction. Within the Board's August 2019 decision, it acknowledged that dismissal of the appeal did not affect the right of an eligible person to request substitution as the appellant for purposes of pursuing the claim to complete adjudication on the merits, but only if the request was filed within one year of the date of the Veteran's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). Within one of the Veteran's death, the Veteran's surviving spouse filed an application for accrued benefits, which the VA Regional Office regarded as a timely and proper request for substitution. In a June 2020 correspondence, the VA Regional Office recognized the Veteran's surviving spouse as a valid substitute claimant. Thus, the Veteran's appeal for service connection for prostate cancer and nerve damage has been reactivated at the Board for the purpose of adjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection, there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. The Board recognizes that the Veteran's claims for service connection for prostate cancer and nerve damage are each based on the theory that he was exposed to contaminated water while stationed at Camp Lejeune, North Carolina, between September 1951 and December 1952. The law presumes that veterans who had no less than 30 days of service (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, were exposed to contaminated water at that location. 38 C.F.R. § 3.307(a)(7)(iii). The law further presumes that if such veterans developed certain diseases, those diseases are due to contaminated water exposure at Camp Lejeune. 38 C.F.R. § 3.309(f). In this case, however, the Veteran's service period at Camp Lejeune did not fall within the timeframe recognized by law for presumptive service connection. Therefore, entitlement to service connection as a result of exposure to contaminated water at Camp Lejeune on a presumptive theory is not available. 38 C.F.R. § 3.309(f). Even though a presumptive service connection is precluded, a grant of service connection may still be made on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Board will continue to analyze the claims for service connection on a direct basis. 1. Service connection for prostate cancer 2. Service connection for nerve damage The Board chooses to analyze the claims for service connection for prostate cancer and nerve damage together because there is a substantial overlap in their legal analyses. First element: A current disability The requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In 1998, the Veteran was diagnosed with prostate cancer. He immediately underwent a prostatectomy. Unfortunately, the prostate cancer remained, and he continued to live with his cancer during the claim period. As to his claimed nerve damage, the Veteran asserted he experienced a "tingly sensation through [his] body." December 2015 VA Form 21-4138, Statement in Support of Claim. The Board observes the Veteran was in receipt of VA disability compensation for residuals of frostbite (upper and lower, and left and right extremities) at the time he filed his claim for service connection for nerve damage. He did not assert a particular neuropathic illness or disease as part of his claim for nerve damage. Nonetheless, the Board recognizes that the Veteran had diabetic neuropathy and peripheral neuropathy during the claim period based on his VA medical records. Because the following analysis addressing an in-service event, injury, or disease is determinative in this case, the Board will assume for the sake of argument that the Veteran's neuropathies are separate and distinct disabilities from the Veteran's service-connected frostbite residuals. Therefore, the first element is satisfied as to each claim. During the pendency of the claim, the Veteran experienced prostate cancer and neuropathies (i.e., nerve damage). Second element: An in-service event, injury, or illness The appellant only asserts that the Veteran's prostate cancer and neuropathies were the result of his exposure to contaminated water at Camp Lejeune. As explained, presumptive service connection is not available, but that does not prevent service connection on a direct basis. Unfortunately, in this case, the evidence is against finding that the Veteran was exposed to contaminated water at Camp Lejeune. The Veteran's military records reflect active military service at Camp Lejeune, North Carolina, from September 1951 to December 1952. Yet, there is insufficient evidence for the Board to conclude that he was exposed to contaminated water during that timeframe. First, the Veteran's assertion is unaccompanied by any evidence, lay or otherwise, that indicates he had personal knowledge that he was exposed to contaminated water. "Personal knowledge is that which comes to the witness through the use of his sensesthat which is heard, felt, seen, smelled, or tasted." Layno v. Brown, 6 Vet. App. 465, 469 (1994) (citing United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976) (witnesses may testify "upon concrete facts within their own observation and recollectionthat is, facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts."). Second, there is no evidence indicating, or reasonably suggesting, such exposure, apart from the Veteran's belief that he was exposed to contaminated water. Such credible and probative evidence might be in the form of military medical or personnel records documenting exposure, eye-witness statements or testimony from people with knowledge that the water was contaminated at Camp Lejeune during the relevant timeframe, or medical treatise addressing the topic. There is no such evidence in this case. Finally, to the extent the Veteran asserted, and the appellate currently asserts, that the timeframe of September 1951 to December 1952 is close to the beginning timeframe for presumptive exposure to contained water at Camp Lejeune (i.e., August 1953), such that the water had to be contaminated when the Veteran was there, the Board does not find this theory reasonable. VA has concluded that the dates provided in the regulation represent the best estimate of the period of water contamination at Camp Lejeune, and there is an absence scientific data suggesting the reasonable potential for earlier exposure. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173, 4181 (January 13, 2017). Accordingly, absent sufficient evidence that the Veteran was exposed to contaminated water while stationed at Camp Lejeune from September 1951 to December 1952, the evidence is against finding an in-service event. The Board has reviewed the record in its entirety to determine whether any other theories of service connection, legal or factual, are reasonably raised. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). The Board is unable to locate any other evidence or legal theories that would warrant service connection for either claim. The Veteran's in-service medical records do not indicate, or reasonably suggest, an in-service onset of prostate cancer or nerve damage, or symptoms associated with these disabilities. Although the Veteran received in-service medical treatment for left varicocele, a May 1953 and an April 2000 VA decision denied service connection for that disability because it was a pre-existing condition that was not aggravated in service. Thus, it is a nonservice-connected disability and secondary service connection is not applicable. Accordingly, the Board finds no additional evidence within the record that would warrant service connection or warrant further development of the appellant's claims. Although an examination nor medical opinion was obtained in this case, the Board finds that VA was not under an obligation to provide one. Section 5103A of Title 38 of the United States Code, captioned "DUTY TO ASSIST," mandates that a medical examination be provided in disability compensation claim cases only when: (1) There is competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) There is evidence establishing that an event, injury, or illness occurred in service or within an applicable presumptive period, or the Veteran has a service-connected disability; and (3) There is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) There is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Each of the elements must be met. As discussed, the Board has found the evidence does not establish that an event, injury, or illness occurred in service or within an applicable presumptive period, or that the Veteran had a service-connected disability for which secondary service connection might be available. As such, the Board finds that there is no reasonable basis on which to obtain a VA medical opinion to address the etiology of the Veteran's prostate cancer or neuropathies (i.e., nerve damage). Accordingly, the second element of service connection is not satisfied. Third element: A causal link The Board acknowledges the Federal Circuit has held that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson, 581 F.3d at 1316. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran if the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). While the Board finds the Veteran was competent to report his physical symptoms associated with prostate cancer and his nerves, without evidence showing that he had the necessary medical training or expertise, he was not competent to opine that his disabilities were caused by exposure to contaminated water at Camp Lejeune or that they were otherwise etiologically linked to his active military service. See 38 C.F.R. § 3.159(a)(1), (2); Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms). Absent an in-service incurrence or a relevant service-connected disability, there is nothing with which to etiologically link his disabilities. Therefore, the third element is not satisfied. Conclusion (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the claims, and entitlement to service connection for prostate cancer and nerve damage is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.