Citation Nr: 21062826 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-20 324 DATE: October 12, 2021 ORDER Service connection for prostate cancer is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1961 to June 1964, including duty at Camp Lejeune from late 1961 to early 1963; service in Vietnam is not shown 2. Prostate cancer was not shown in service or for many years thereafter, is not etiologically or causally related to service or service-connected disability, and cannot be presumed to be associated with the drinking water at Camp Lejeune. CONCLUSION OF LAW Prostate cancer was not incurred in service, nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2019, the Board of Veterans' Appeals (Board) denied the Veteran's claim. He appealed to the Veterans Claims Court. In November 2020, the Court Clerk granted a Joint Motion for Remand (JMR), which vacated the Board's decision and remanded the matter the Board for action in compliance with the motion. Thereafter, in May 2021 the Board remanded the case for action in compliance with the JMR. It now returns for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. 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, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran claims that service connection is warranted for prostate cancer because it is due to exposure to contaminated water at Camp Lejeune. In the alternative, he claims that it is secondary to his service-connected non-Hodgkin's lymphoma. As an initial matter, the medical evidence reflects a current diagnosis of prostate cancer. Specifically, a November 2012 private biopsy reflected a diagnosis of prostate cancer. As such, the requirement of a current disorder has been met. With regard to the Veteran's primary contention, prostate cancer it is not a disorder/disease listed as associated with exposure to the contaminated water at Camp Lejeune. Therefore, although exposure to contaminated water is conceded because the Veteran has the requisite service at Camp Lejeune, presumptive service connection for prostate cancer is not warranted on this basis. Next, the medical evidence does not support direct causation to contaminated water at Camp Lejeune. Importantly, in a June 2016 VA opinion, the examiner found that prostate cancer was less likely as not related to contaminated water exposure at Camp Lejeune and was more likely age related. The only evidence indicating such a relationship is the Veteran's own statements. Consequently, the medical evidence does not support service connection on a direct causation basis. Next, while the Veteran asserts that prostate cancer is related to service-connected non-Hodgkin's lymphoma, the medical evidence weighs against this contention. Notably, an August 2021 VA opinion report stated that it was less likely than not that prostate cancer was caused or aggravated by service-connected non-Hodgkin's lymphoma. The examiner reasoned that non-Hodgkin's lymphoma was in complete remission, as documented by his oncology team, prior to the diagnosis and treatment of prostate cancer (which was diagnosed on November 30, 2012). The Veteran was subsequently treated for prostate cancer with brachytherapy that was completed in April 2013. The examiner also reasoned that Veteran's non-Hodgkin's lymphoma involved follicular lymphoma which was a completely different type of cancerous cell than the later-diagnosed prostate cancer of the acinar type. The examiner pointed to medical literature which found that the etiology of non-Hodgkin's lymphoma involved localized metastasis to the lymph nodes that was not involved with directly causing the development of separate or different types of cancerous cells in the prostate such as the Veteran's diagnosis of prostate adenocarcinoma. The examiner also cited to additional medical literature which stated that the onset of prostate adenocarcinoma was localized primarily at the prostate gland and involves adenocarcinoma malignancy, not follicular large B-cell lymphoma malignancy. The examiner opined that the Veteran's non-Hodgkin's lymphoma was successfully treated prior to the diagnosis of prostate adenocarcinoma and that non-Hodgkin's lymphoma involved completely different areas of malignancy - involving the lymph nodes of the mediastinum (area covering his lungs and heart) and the retroperitoneal region (involving the spleen) - and not involving the prostate gland or inguinal lymph nodes located near the prostate region. The examiner also reasoned that the Veteran's non-Hodgkin's lymphoma did not aggravate or worsen the later diagnosis of prostate adenocarcinoma because non-Hodgkin's lymphoma had been in remission several years prior to the diagnosis of prostate cancer and it did not involve the same type of cancerous cells associated with Follicular non-Hodgkin's lymphoma. There is no medical opinion in favor of the claim on a secondary basis. In this regard, at the videoconference hearing, he requested that the record be held open for 30 days for him to submit medical evidence supporting this claim. However, he did not submit any such medical opinion and nothing in the record suggests any such nexus to non-Hodgkin's lymphoma. Therefore, the medical evidence does not support service connection on a secondary basis. Regarding service connection on a direct service connection basis, the service treatment records (STRs) do not reflect any complaints, findings or diagnosis of prostate cancer or any symptoms reasonably associated with prostate cancer. Prostate cancer also was not present within one year of service, as it was initially diagnosed in 2012. Importantly, the Veteran does not contend that prostate cancer was present during service or within one year of service, and he does not contend that he had any ongoing symptoms of prostate cancer since service. Thus, the medical evidence does not support an in-service incurrence of prostate cancer and the elements of direct and presumptive service connection pursuant to 38 C.F.R. § 3.309 have not been met. There is also no medical evidence suggesting that the prostate cancer is otherwise related to any incident of service. In any event, the Veteran does not contend that there is any relationship to service other than as due to contaminated water at Camp Lejeune. The Board has considered the Veteran's lay statements that prostate cancer is related to service, including exposure to contaminated drinking water at Camp Lejeune, or service-connected non-Hodgkin's lymphoma. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the medical evidence, and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to clinical findings than to his statements. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. The Board notes that in a May 2021 letter, VA requested that the Veteran complete and submit a VA Form 21-4142 (authorization and consent form) to obtain his private treatment records from Dr. S and Dr. G., in accordance with the JMR. However, the Veteran did not respond to the request and he did not submit any private treatment records from Dr. S or Dr. G. and those records cannot be considered. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.