Citation Nr: 21064290 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 12-20 635 DATE: October 19, 2021 ORDER Entitlement to service connection for colon cancer, claimed as due to exposure to contaminated water at Camp Lejeune, is granted. Entitlement to service connection for a lump located on the left side of the head is denied. Entitlement to service connection for a lump located on the breast is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to an initial compensable rating for boxer's fracture of the right hand (right hand disability) is remanded. Entitlement to a 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran served at the United States Marine Corps Base Camp Lejeune, North Carolina (Camp Lejeune) for more than 30 days during the period beginning August 1, 1953 and ending on December 31, 1987. 2. The evidence is in relative equipoise as to whether the Veteran's colon cancer is due to his exposure to contaminated drinking water at Camp Lejeune during service. 3. The preponderance of the evidence is against finding that the diagnosed epidermal inclusion cyst on the left parietal scalp is etiologically related to service. 4. The preponderance of the evidence is against finding that the Veteran has had a disability manifested by a lump on the breast at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for colon cancer are met. 38 U.S.C. §§ 1110, 5107; C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for an epidermal inclusion cyst on the left parietal scalp, claimed as lump on the left side of head, are not met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a lump on the breast are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from May 1971 to February 1974. In the November 2017 decision, the Board denied service connection for colon cancer, claimed as due to exposure to contaminated water at Camp Lejeune; a lump located on the left side of the head, and a lump located on the breast. The Board also remanded the issues of entitlement to service connection for a left shoulder disability, an initial compensable evaluation for boxer's fracture, right hand, and a single 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities. Subsequently, the Veteran appealed the Board's denial of service connection for colon cancer, a lump located on the left side of the head and a lump located on the breast to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision, dated in October 2020, the Court found that since the Veteran had notified the Board that he wanted to submit additional evidence and/or argument, the Board erred by issuing a decision fewer than 90 days after the Board's notice letter to the Veteran. Thus, the Court set aside the Board's decision and remanded these matters to the Board in order to afford the Veteran the full 90 days to which he was entitled. In a February 2021 letter, the Board notified the Veteran that he had 90 days to submit additional evidence. In March 2021, the Veteran responded that he wanted the full 90 days to submit additional evidence and argument. At this time, the Veteran has been afforded over 90 days. To date, he has submitted additional medical evidence and argument pertaining to the issue of service connection for colon cancer, but he has not submitted any further evidence or argument pertaining to the other two issues. Moreover, in the April 2020 decision, the Board denied the issues of entitlement to service connection for a left shoulder disability, an initial compensable evaluation for boxer's fracture, right hand, and a single 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities. Again, the Veteran appealed these issues to the Court. In an April 2021 Memorandum Decision, the Court vacated the April 2020 Board decision and remanded these issues to the Board for development consistent with the Memorandum Decision. In May 2021, the Veteran, through his representative, requested a Board hearing. However, this hearing request was subsequently withdrawn in June 2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including malignant tumors, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Entitlement to service connection for colon cancer, claimed as due to exposure to contaminated water at Camp Lejeune The Veteran contends that his colon cancer is due to exposure to contaminated water while stationed at Camp Lejeune. As noted in the Board's prior decision, exposure to contaminated water at Camp Lejeune is conceded. Moreover, the evidence of record shows a diagnosis of colon cancer. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune between August 1953 and December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). The contaminants included trichloroethylene (TCE) (a metal degreaser), perchloroethylene (PCE) (a dry-cleaning agent), benzene, vinyl chloride, and other VOCs. Colon cancer is not currently on the presumptive disability list for exposure at Camp Lejeune under 38 C.F.R. § § 3.309 (f). Nevertheless, while colon cancer cannot be presumed as due to exposure to contaminated water at Camp Lejeune, service connection may be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Initially, the Board observes that service treatment records are silent with respect to any colon problems. Further, there is no evidence of malignant tumors within one year of the Veteran's discharge. Rather, the Veteran was first diagnosed with colon cancer in 2003, approximately 30 years after service. There is also no medical evidence linking any current cancer disability to service, except in relation to exposure to contaminated water. Significantly, the Veteran has not asserted that his current cancer is in anyway otherwise related to service except due to exposure to contaminated water while stationed at Camp Lejeune. Moreover, again, colon cancer is not presumed due to such exposure under the applicable regulations. Therefore, the primary question in this case is whether the Veteran's colon cancer is directly related to contaminated water at Camp Lejeune. In April 2014, a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project reviewed the relevant evidence of record and provided an opinion on whether the Veteran's colon cancer was a result of his exposure to contaminated water at Camp Lejeune. The examiner noted that the Veteran had been exposed to contaminated water at Camp Lejeune in service for a period of approximately 473 days, and that in 2003, at the age of 53, he was diagnosed with adenocarcinoma of the sigmoid poly with lymphatic invasion. The examiner noted that the Veteran was status post sigmoid resection for adenocarcinoma. The examiner found that the Veteran's colon cancer was less likely as not caused by or a result of exposure to contaminated water at Camp Lejeune. In support of this conclusion, he discussed the known risk factors for developing colon cancer and data from environmental and occupational exposure studies. The examiner noted a number of variables and medical facts associated with the Veteran's development of colon cancer and concluded, in light of them, that his colon cancer was less likely than not related to the contaminated water at Camp Lejeune. Among the reasons the examiner cited for this conclusion included the Veteran's risk factors for developing this common cancer such as his male gender, his age, and being overweight. Additionally, the examiner indicated that the Categorization of Health Outcomes reviewed in relation to TCE, PCE or solvent mixtures from the National Academies report on "Contaminated Water at Camp Lejeune Assessing Potential Health Effects" listed colon cancer has having "inadequate/insufficient evidence to determine whether an association exists." The examiner noted that colon cancer was not listed in the categories of a) sufficient evidence of a causal relationship, b) sufficient evidence for an association, or even c) limited suggestive evidence of an association. The examiner noted further that a review of environmental and occupational exposure studies did not elicit a correlation between the chemicals contained in the contaminated water source at Camp Lejeune and the Veteran's colon cancer that would support a link between the exposures to the contaminated water. In this regard, the examiner found that an assessment of a California community exposed to contaminated water did not show either a generalized cancer excess or a specific increase in observed cases of colon cancer. In addition, he noted that numerous occupational studies of workers exposed to industrial levels of these chemicals (generally considered to be exposed to higher levels of these chemicals than are people who drink contaminated water and to have exposure for significantly longer than this Veteran's time at Camp Lejeune) have not proven a causal relationship or shown sufficient evidence of an association between these chemicals and the development of colon cancer. The examiner found that statistical power needed to make such an association was lacking. The examiner therefore found that in the absence of a meta-analysis showing a causal association between exposure to the chemical contaminants (especially at these levels) and the development of colon cancer, the Veteran's contention was not supported. In support of his claim, the Veteran submitted a June 2021 private opinion by an oncologist. The examiner stated that he had been involved in translational and clinical research in GU and GI oncology. The examiner reviewed the claims file and opined that it is at least as likely as not that the Veteran's colon cancer was due to exposure to ground water contaminants at Camp Lejeune, which triggered the eventual development of his colon cancer diagnosed and surgically resected in 2004. The examiner noted that VA had acknowledged the presence of contaminants in the water at Camp Lejeune. The examiner stated that there were several studies that support a relationship between colon cancer to exposure to both TCE and PCE. The examiner then summarized and cited such studies. The examiner continued that development of cancer is triggered by some genetic or chemical disruption in the body. Disruption of cell development (excessive proliferation), reduced apoptosis (programmed cell death) and loss of contact inhibition allow cells to become neoplastic (cancer). The agents that the Veteran was exposed to during his service at Camp Lejeune are all shown to elicit mutagenic changes and/or carcinogenesis by various mechanisms. The Veteran was exposed to TCE, PCE, vinyl chloride and benzene while serving at Camp Lejeune. Additionally, the Veteran has no known genetic or family history of colon cancer. The Board is thus faced with a conflicting record as to whether the Veteran's colon cancer is related to exposure to contaminated water while stationed at Camp Lejeune. Both examiners have been identified as specialists, were aware of the Veteran's medical history and offered detailed rationales for their opinions. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran's colon cancer is related to exposure to contaminated water while stationed at Camp Lejeune. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for colon cancer have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for a lump located on the left side of the head The Veteran is seeking entitlement to service connection for a lump on the left side of the head. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of an epidermal inclusion cyst on the left parietal scalp, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of an epidermal inclusion cyst on the left parietal scalp began during service or is otherwise related to an in-service injury, event, or disease. The service treatment records are silent for complaints or findings regarding lumps or cysts on the left side of the head. On separation from service, the Veteran's skin was evaluated as normal. VA treatment records reveal that in February 2015, the Veteran complained of a cyst on the left side of his scalp for many years. He noted that it would burst open off and on. Likewise, in a VA treatment record dated in March 2015, the Veteran complained of a cyst on the left temporal scalp, which had been present for many years. He noted that it had grown in size over the years. The assessment was pilar cyst, left temporal scalp. An April 2015 VA treatment record diagnosed a neoplasm of uncertain behavior on the left parietal scalp. The Veteran requested excision. A May 2015 VA treatment record noted that the Veteran was status post excision of epidermal inclusion cyst (EIC) left parietal scalp with benign pathology. In sum, the Veteran had no in-service evidence of any cysts or lumps, to include on the left side of his head. The claims file otherwise does not include any competent medical evidence suggesting a link between the Veteran's epidermal inclusion cyst on the left parietal scalp with benign pathology to his service. The Board acknowledges that in 2015, the Veteran complained of a cyst on his left scalp which had been present for many years. However, he did not specifically indicate that this cyst had been present in service. In other words, the Veteran has not provided any lay evidence of pertinent symptomatology since service. Moreover, he has not offered any explanation as to why he believes his cyst is related to his service. Given the lack of any in-service incident or competent evidence of record suggesting that the Veteran's disability is related to service, a VA examination with opinion is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (a mere conclusory generalized lay statement that service caused the claimant's current condition is insufficient to require the Secretary to provide an examination). The Veteran believes his epidermal inclusion cyst on the left parietal scalp is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record which does not show any cyst in service, or for many years thereafter. In conclusion, the Board finds that entitlement to service connection for a lump on the side of head, diagnosed as epidermal inclusion cyst on the left parietal scalp, is not warranted; as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107 (b). Entitlement to service connection for a lump located on the breast The Veteran generally asserts that he has a lump located on the breast related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a lump located on the breast and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The service treatment records are silent for complaints or findings regarding lumps or cysts on the breast. On separation from service, the Veteran's skin was evaluated as normal. Post-service treatment records are also silent with respect to any findings of a lump on the breast. The Veteran has not submitted; nor identified any medical records showing a diagnosis or treatment for symptoms associated with any lump located on the breast. The Veteran has also not provided any lay evidence describing symptoms of any current disability. Given the lack of any evidence of an in-service incident or a current diagnosis, the Board finds that a VA examination is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In conclusion, given the lack of competent lay and medical evidence showing a diagnosis of a lump located on the breast, service connection must be denied. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to service connection for a left shoulder disability is remanded. In the April 2021 Memorandum Decision, the Court found that Board erred when it relied on the July 2019 VA examination as the VA examiner failed to consider the in-service shoulder injury as well as the Veteran's reports of continuity of symptomatology as directed in the Board's prior remand. Thus, the Court remanded this issue to provide the Veteran with a new VA examination. In turn, in order to comply with the Court decision, this matter must be remanded to afford the Veteran a new VA examination with etiology opinion. Entitlement to an initial compensable rating for boxer's fracture of the right hand (right hand disability) is remanded. In the April 2021 Memorandum Decision, the Court found that Board failed to provide adequate reasons and bases for its denial of this issue as the Board did not discuss the Veteran's reports of chronic daily pain, pain on use including pain on motion and pain that rarely subsides, even with the use of over-the-counter medications. Importantly, these reports conflicted with the April 2019 VA examination where the examiner found that the Veteran did not experience pain with use, had no functional loss or impairment, and had normal range of motion of the right hand. Given the Court decision and the conflicting evidence, the Board finds that the Veteran should be afforded a new VA examination to address the severity of his boxer's fracture of the right hand. In light of the need to remand, additional VA clinical records should be obtained. Entitlement to a 10 percent rating under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities is remanded. In light of the above award of service connection for colon cancer, adjudication of the issue of entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324, must be remanded pending the assignment of a disability rating and effective date for this grant by the agency of original jurisdiction in the first instance. Furthermore, pursuant to any development conducted in response to this remand, service connection for left shoulder disability or an initial compensable rating for right hand disability may be granted, which also may result in the assignment of compensable ratings. As such, any Board action would be premature at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain additional VA clinical records dated from February 2019 to the present. 2. Schedule the Veteran for a VA examination to determine the etiology of any left shoulder disability. The claims file must be reviewed by the examiner. The examiner must opine whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's diagnosed left shoulder disability (degenerative joint disease with impingement and epicondylitis) (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to an in-service injury, event, or disease, including the documented in-service injury to his left arm in 1971. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. In rendering the requested opinion, the examiner should discuss: the 1971 injury to the left arm during service; the March 2009 VA treatment record in which the Veteran complained of worsening left shoulder/elbow arm discomfort starting several months back and noted that the only injury to his left arm he remembered was during boot camp; the July 2009 VA treatment record in which the Veteran complained of left shoulder and elbow pain beginning in December, mentioned "sling paralysis" of the left arm 30 years ago without any other specific injury, and described intermittent tingling once per year; the Veteran's July 2012 report of tingling, numbness, and pain in the left arm/shoulder treated by over-the-counter medications since service; the September 2013 buddy statement indicating the Veteran complained of left arm/shoulder numbness and tingling since service; the Veteran's statements of pertinent symptomatology; and the Mayo Clinic article referenced in the October 2013 brief, indicating that a strain or tear left untreated could lead to chronic tendon degeneration, to include degenerative joint disease. 3. Schedule the Veteran for a VA examination to ascertain the current nature and severity of his boxer's fracture, right hand. The claims file must be reviewed by the examiner. All appropriate tests should be conducted. The examiner should discuss all symptoms related to the Veteran's service-connected boxer's fracture, right hand in accordance with the appropriate VA rating criteria. The examiner must consider the Veteran's reports of daily, chronic hand pain, including pain on motion. 4. Readjudicate the remaining issues on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.