Citation Nr: 21061853 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-44 180 DATE: October 5, 2021 ORDER Service connection for liver cancer is granted. FINDING OF FACT 1. The Veteran served on active duty from March 1968 to March 1970, during which he served for at least 30 days at Camp Lejeune. 2. The Veteran has been diagnosed with liver cancer, which is included in the list of disabilities associated with exposure to contaminants in the water at Camp Lejeune and is subject to presumptive service connection. 3. There is not sufficient "affirmative evidence to the contrary" to rebut the presumption that the Veteran's liver cancer is related to his exposure to contaminants in the water supply at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for liver cancer have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307 (a)(7), 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who had active service from March 1968 to March 1970, appeals a September 2017 rating decision. In September 2021, the Veteran testified before the undersigned Acting Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing. This case is being decided as part of the Board's "One Touch initiative." A transcript of the hearing will be associated with the file at a later date. The Veteran theorizes that his liver cancer is due to hepatitis C acquired via air gun injections, or alternatively through exposure to contaminated water at Camp Lejeune. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds 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). Effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1953 to December 1987. See 82 Federal Register 4173 (January 13, 2017). The regulations now provide for presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. 38 C.F.R. §§ 3.307 (a)(7), 3.309(f); Id. Here, the claimed liver cancer is among the eight listed diseases for presumptive service connection in the new rule. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309 (f), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The presumption may be rebutted with affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). Entitlement to service connection for liver cancer is granted. First, we note that the Veteran has been diagnosed with liver cancer in 2016. A February 2016 VA gastrointestinal treatment note indicates he was recently diagnosed with hepatocellular carcinoma and was undergoing chemoembolization and CT-guided liver ablation. He was noted to have a history of Hepatitis C infection. Cirrhosis of the liver was noted in January 2015. Second, he was exposed to contaminated water at Camp Lejeune in excess of 30 days during the relevant time period. The Veteran's service personnel records indicate he was stationed at Camp Lejeune from at least September 6, 1968 to October 30. 1968. Accordingly, he is presumed to have been exposed to contaminated water at Camp Lejeune. Thus, based on the Veteran's duration of service at Camp Lejeune and his diagnosis of liver cancer, a nexus between the Veteran's current disability and his time at Camp Lejeune need not be shown and is presumed. See 38 C.F.R. §§ 3.307, 3.309 (f). Having found the presumption applicable, the Board must next consider whether the presumption is rebutted. Under 38 C.F.R. § 3.307 (d), the presumption may be rebutted with affirmative evidence to the contrary. That regulation provides that the expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. For the following reasons, the Board finds that the evidence does not meet the standard for rebutting the presumption. The Board notes the record contains a negative nexus opinion by a VA examiner issued in August 2017. In the opinion, the examiner concluded that the Veteran's liver cancer was less likely than not related to the Veteran's exposure to contaminated water at Camp Lejeune. The examiner noted that the Veteran had been diagnosed with hepatitis C (resolved) in 1990. He stated he was in complete agreement with a July 2017 VA doctor's assessment that the Veteran's hepatocellular carcinoma (HCC) is in remission. He also remarked that, "HCC is a common complication of hepatitis C infection and veteran has a longstanding history of Hepatitis C. Thus, his liver cancer was most likely caused by hepatitis C and not contaminated water at Camp LeJeune." We cannot conclude that this opinion is supported by adequate rationale. The August 2017 VA doctor did not explain the reasons for his conclusions based on an accurate and thorough characterization of the evidence of record. The claims file includes findings of Hepatitis A Immunity: Immune (HAV AB+) and Hepatitis B Immunity: Immune (HBc AB+) noted in December 2014 VA treatment records. Yet, the July 2017 liver examination dates the hepatitis from 1990. These facts are not adequately addressed or explained in the negative opinion. Under the circumstances, the opinion is not entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Therefore, the evidence does not, with sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the liver cancer was not incurred in service. Indeed, it is at least evenly balanced that the liver cancer was caused by the in-service exposure to contaminated water at Camp Lejeune. As any reasonable doubt must be resolved in favor of the Veteran, we find the presumption is not rebutted. Entitlement to service connection for liver cancer is warranted on a presumptive basis pursuant to 38 C.F.R. § 3.309 (f). S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.