Citation Nr: 21064325 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-13 575 DATE: October 19, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for skin cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for erectile dysfunction, to include as due to exposure to contaminated water at Camp Lejeune and/or secondary to prostate cancer, is denied. Entitlement to service connection for frequent urination, to include as due to exposure to contaminated water at Camp Lejeune and/or secondary to prostate cancer, is denied. FINDINGS OF FACT 1. The Veteran served at Camp Lejeune, North Carolina, for at least 30 days during his active service. 2. The preponderance of the evidence of record is against a finding that the Veteran manifested with prostate-related symptoms during his active service, or that prostate cancer manifested at least to a compensable degree within one year of his active service; prostate cancer is not otherwise causally related to active service, to include as due to exposure to contaminated water at Camp Lejeune. 3. The preponderance of the evidence of record is against a finding that the Veteran manifested with skin-related symptoms during his active service, or that skin cancer manifested at least to a compensable degree within one year of his active service; skin cancer is not otherwise causally related to active service, to include as due to exposure to contaminated water at Camp Lejeune. 4. The preponderance of the evidence of record is against a finding that erectile dysfunction had onset in active service or is otherwise causally related to active service, to include as due to exposure to contaminated water at Camp Lejeune or a service-connected disability. 5. The preponderance of the evidence of record is against a finding that a chronic disorder manifested by frequent urination had onset in active service or is otherwise causally related to active service, to include as due to exposure to contaminated water at Camp Lejeune or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of prostate cancer have not been met. 38 U.S.C. §§ 101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), (7), 3.309(a), (f). 2. The criteria for entitlement to service connection for skin cancer have not been met. 38 U.S.C. §§ 101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), (7), 3.309(a), (f). 3. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(7), 3.309(f), 3.310. 4. The criteria for entitlement to service connection for frequent urination have not been met. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(7), 3.309(f), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1960 to November 1963, during which he was assigned to Camp Lejeune from March 1962 to November 1963. In a July 2019 decision, the Board denied the aforementioned claims, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). By a September 2020 Order, the Court vacated the July 2019 Board decision and remanded the claims to the Board for further appellate review consistent with a September 2020 Joint Motion for Remand (JMR). See 09/14/2020 CAVC Decision. In compliance with the Court remand, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. See 04/27/2021 BVA Decision. As discussed further below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in March 2021, the Veteran was informed that the Veterans Law Judge that conducted his hearing in April 2019, was no longer available and he was offered a second hearing before the Board. Later in March 2021, the Veteran notified the Board that he did not wish to have a second hearing. Service Connection General Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases 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, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Malignant tumors are among the noted chronic diseases. Effective March 14, 2017, VA amended its adjudication regulations regarding presumptive service connection, adding certain diseases associated with contaminants present in the base water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina (Camp Lejeune) from August 1, 1953, to December 31, 1987. The final rule establishes that Veterans who served at Camp Lejeune for no less than 30 days during this period, and who have been diagnosed with any of eight associated diseases (adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, liver cancer, multiple myeloma, Non-Hodgkin's lymphoma, and Parkinson's disease) are presumed to have incurred or aggravated the disease in service for purposes of entitlement to VA benefits. See 38 C.F.R. § 3.309(f). The Veteran's claimed disabilities, prostate and skin cancer, are not currently on the presumptive disability list. This does not, however, preclude a claimant from establishing service connection for the claimed disorder on a direct basis, to include as due to Camp Lejeune water contamination. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. In the current case, VA has conceded exposure to Camp Lejeune water contamination, as the Veteran was based there from March 1962 to November 1963. See 01/30/2015 Military Personnel Records (MPR), 1st Entry, P. 3. 1. Entitlement to service connection for prostate and skin cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Direct Service Connection There are no entries in the service treatment records (STRs) related to complaints, findings, or treatment for prostate of skin issues. The November 1963 Report of Medical Examination for RAD reflects that the Veteran's genitourinary (GU) and his skin were assessed as normal. See 01/30/2015 STR-MED, 1st Entry; 01/30/2015 STR-Dental. Indeed, the Veteran does not assert that either his prostate or skin cancer had onset in active service of within one year of his separation, as he has reported, and his treatment records document, that he was diagnosed with prostate cancer in 2004, and skin cancer in 2006. Skin cancer was surgically excised in 2006 and 2021. See 07/13/2021 VA Examination Report, 2nd Entry. Thus, there is no factual basis for allowance of service connection on a presumptive basis for a chronic disease. 38 C.F.R. § 3.307(a)(3), 3.309(a). The remaining basis on which the Veteran relies is exposure to contaminated water at Camp Lejeune. In July 2017, a VA examiner opined that it was not at least as likely as not that either the prostate or skin cancer was causally linked to active service, to include as due to exposure to contaminated water at Camp Lejeune. See 07/21/2016 VA Examination Report. Among the factors noted by the examiner for the negative opinion was that the Veteran had a family history of prostate cancer. The consensus of the parties in the JMR was that VA did not initially fulfill the duty to assist the Veteran, as he was not afforded VA examination as part of the adjudication of the skin cancer claim, and that the July 2016 medical examination and opinion were inadequate. Specifically, the Veteran steadfastly denied, and denies, any family history of prostate cancer, and that the examiner did not provide a complete rationale for the opinions. See 09/14/2020 CAVC Decision. Interestingly, an Annual Certificate of Physical Condition in the STRs indicates a family history of cancer, and a personal history of tumor/cancer. See 01/30/2015 STR-MED, P. 11. It has the Veteran's name at the top, and it reflects a signature, purportedly his. The form is not dated, but it shows the Veteran's rank as corporal, which means it was signed after July 1963, the effective month and year of his promotion to corporal. See 01/30/2015 MPR, 1st Entry, P. 9. On the other hand, on his 1960 Report of Medical History for examination at enlistment, he denied any family history of cancer. See 01/30/2015 STR-MED, 2nd Entry, P. 12. The Certificate appears to be an outlier, as there is no other evidence that supports its accuracy. Hence, in compliance with the JMR and Court remand, the Board remanded the case for an examination under the proviso that the Veteran does not have a family history of cancer. The AOJ arranged another examination of the Veteran as directed in the April 2021 Board remand. As for the question of service connection on a direct basis, the VA examination report (07/13/2021 VA Examination Report, 1st Entry) reflects that the examiner took and noted the Veteran's lay reported history and conducted a review of the claims file as part of the examination. As concerns service connection on a direct basis, the examiner opined that it was not at least as likely as not that the Veteran's prostate cancer was directly related to his active service. The examiner noted the fact that the Veteran's STRs were negative for any related complaints of treatment for prostate issues, and that his prostate cancer, now in remission, was diagnosed some 40 years after his active service. The examiner opined further that the significant gap between service and the date of diagnosis, alone, mitigated against a nexus with active service. Id. P. 7. The examiner noted that the Veteran's age, 61, and race, Caucasian, at the time of his diagnosis were significant risk factors for the development of prostate cancer. Citing a National Registry, the examiner noted that the incidence for prostate cancer increased from 0.1 at age 40 and under to 36.3 for ages 60-69. The examiner also noted that another medical study noted the incidence for prostate cancer among Caucasians in the U.S. between 2001 and 2007 was 82.5. the next closest demographic was Black, at 12.7. As concerns the presence of a family history for prostate cancer, the examiner observed that although there is medical evidence to indicate an association between a family history and the development of prostate cancer, there also is medical evidence that more men with a negative family history involving a father or brother are diagnosed as compared with those with a positive family history. The examiner cited a study of 563 men in Massachusetts in the 1990s that noted 83 percent of the men diagnosed with prostate cancer had a negative family history versus 17 percent with a positive family history. Id. P. 8. As concerns the skin cancer, the examiner noted that it was resolved after the two prior surgeries. See 07/13/2021 VA Examination Report, 2nd Entry. As was the case with the prostate cancer, the examiner opined that it is not at least as likely as not that the Veteran's skin cancer is directly related to his active service. See 07/13/2021 C&P Exam, 4th Entry. The examiner noted the absence of any evidence of in-service complaints or treatment for skin and the lapse of 43 years between separation from service and when the skin cancer manifested. The examiner noted further that ultraviolet radiation from sun exposure is the most important environmental cause of Basil Cell Cancer, the type with which the Veteran was diagnosed and treated. Id. P. 11. The Board notes that there is no indication in the Veteran's STRs or MPRs that he served in environments where he was subjected to significant sun exposure. His entire active service was served in the U.S. Hence, the Board finds that the preponderance of the evidence is against an allowance of service connection on a direct basis. 38 C.F.R. § 3.303. Presumed Exposure to Contaminated Water As noted earlier, the Veteran served at Camp Lejeune between March 1962 and November 1962. Hence, he is presumed to have been exposed to contaminated water during that period. 38 C.F.R. § 3.307(a)(7). Although that it is the case, the VA medical examiner opined that it is not at least as likely as not that either the Veteran's prostate cancer or his skin cancer is due to such exposure. The VA examiner not only noted the scientific evidence on which VA relied in not including prostate or skin cancer among those deemed associated with exposure to Camp Lejeune water but also how the Veteran's individual case mitigated against his claim. The Board incorporates here by reference, the examiner's earlier discussion on the Veteran's age and race, etc., at the time of his diagnosis. The examiner noted that the length of the Veteran's exposure to Camp Lejeune water and his personal statistics did not satisfy any of the Bradford Hill criteria (known as Hill's criteria for causation, a group of 9 principles established in 1965 by the English epidemiologist Sir Austin Bradford Hill): Strength/effect size, Consistency/reproducibility, Specificity, Temporality, Biological gradient, Plausibility, Coherence, Experiment, or Analogy in establishing epidemiologic evidence of a causal relationship between a presumed cause and an observed effect. See 07/15/2021 VA Examination Report, P. 4. The examiner then considered the Veteran's age and race, etc., and opined that it was unlikely that the Veteran's prostate cancer was related to his exposure to Camp Lejeune water. The examiner opined that age was a highly significant risk factor, as prostate cancer is rarely diagnosed before the age of 40. Of further significance as concerns the Veteran's individual case is his smoking history. The examiner noted that the Veteran's prior 35-year 1 ppd smoking history is a known risk factor. Id. Hence, the examiner opined that it was not at least as likely that the Veteran's prostate cancer is due to his exposure to Camp Lejeune water. As concerns the skin cancer, the examiner opined that the elapsed time between the Veteran's exposure to contaminated water and the manifestation of his skin cancer mitigated against an association between the two. The examiner opined that if the skin cancer was related to exposure to contaminated water, it would be expected that the cancer would have manifested much sooner than 41 years after the exposure. The examiner noted that the skin has a limited number of clinical patterns with which it can react to harmful agents. It can proliferate, ulcerate, atrophy, scale, weep, blister, form pustules, and change color. Such a potential exposure to a suspected substance would have occurred acutely in the Veteran's situation (a sudden temporal event), not chronically, and for only a very short duration. That type of exposure also would have limited the types of skin disorders which would have been expected to occur, such as a contact dermatitis or a folliculitis. Id. P. 5. The primary evidence the Veteran offers in opposition are his lay assertions. For example, he asserts that the statistics noted by the examiner do not apply to him for his age of 61 at the time of his diagnosis with prostate cancer was at the low end of the range 61 to 69. He also asserts that if one type of cancer can ba caused by exposure to the contaminated water, then it follows that other types should be. See e.g., 08/15/2016 VA 21-4138. The Veteran's assertions reflect an absence of medical or other professional perspective. The Board finds that analyzing medical and other scientific evidence and opining on associations and etiology requires professional specialized training. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). While the Veteran is competent to report his symptoms and the date of their onset, etc., there is no evidence that he has medical training or special knowledge of statistics. Hence, his asserted lay opinions are not probative on the issues. The same applies to the assertions of the Veteran's representative's assertions at the hearing. See 04/11/2019 Hearing Transcript, P. 4. There, the representative noted parts of medical studies that indicated the Veteran's prostate cancer could be due to his exposure to Camp Lejeune water. On the other hand, no evidence was proffered on they applied to the Veteran's individual situation. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998). By contrast, the VA examiner took and noted the Veteran's reported history, reviewed the claims file, and analyzed and explained the medical and scientific studies and how they applied, if at all, to the Veteran's personal history and his circumstances. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, the Board finds that the VA examiner's opinions are highly probative and attaches significant weight to them. The Board finds further, based on the earlier discussions, that the terms of the JMR and the remand directives have been entirely complied with. Hence, the Board finds that the preponderance of the evidence is also against the claim on a presumptive basis due to exposure to Camp Lejeune water. 38 C.F.R. § 3.303, 3.307(a)(7), 3.309(f). Since the preponderance of the evidence is also against the claim, there is no reasonable doubt to resolve. Gilbert, 1 Vet. App. 49, 53-56; see also 38 C.F.R. § 3.102. 2. Entitlement to service connection for erectile dysfunction, to include as due to exposure to contaminated water at Camp Lejeune and/or secondary to prostate cancer, is denied. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin, 11 Vet. App. 509, 512 (1998). The Veteran asserts this disorder as a residual of his prostate cancer. Since the Board finds that the preponderance of the evidence of record is against the prostate cancer claim, then there is no factual basis to support the claim for erectile dysfunction. 38 C.F.R. § 3.310. 3. Entitlement to service connection for frequent urination, to include as due to exposure to contaminated water at Camp Lejeune and/or secondary to prostate cancer, is denied. The Veteran also asserted this claim as a residual of his prostate cancer. Hence, as is the case with the erectile dysfunction, this claim must also fail. The Board also notes the Annual Certificate discussed earlier. It indicated a history of painful or frequent urination. Nonetheless, the November 1963 Report of Medical Examination for RAD reflects that the Veteran's GU system was assessed as normal, and no abnormality was revealed by a urinalysis of his urine. See 01/30/2015 STR-Dental. In addition to the fact that there is no evidence to support the accuracy of the information indicated on the Annual Certificate of Physical Condition, the Veteran has not asserted any urination-related symptoms in the years immediately after his active service. Hence, the Board finds no basis on which to remand for further development on a direct service connection basis. K.A. KENNERLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.