Citation Nr: 21065718 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-06 011 DATE: October 27, 2021 ORDER Service connection for multiple myeloma is denied. Service connection for chronic lymphocytic leukemia (CLL) is denied. Service connection for Merkel cell carcinoma, to include as secondary to multiple myeloma, is denied. FINDING OF FACT Multiple myeloma, CLL, and Merkel cell carcinoma were not shown in service and are not attributable to service. CONCLUSION OF LAW The criteria for service connection for multiple myeloma, CLL, and Merkel cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to August 1971 in the United States Marine Corps. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2014 and May 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In November 2018, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In June 2019, the Board remanded the claims for further development. In September 2020, the Board denied the claims on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court vacated the September 2020 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). Service Connection VA provides disability 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 show a service connection, there must be competent, credible evidence of (1) a current disability, (2) 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). Additionally, for certain chronic diseases, including leukemia, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The record shows that in approximately 2009, the Veteran was diagnosed with CLL, and in 2015, he was diagnosed with Merkel cell carcinoma. See, e.g., March 2017 VA treatment record. As for multiple myeloma, the Board noted in the June 2019 remand that a conclusive diagnosis was not documented. The record currently remains lacking in this regard. However, given the Veteran's reports of pain and functional impairment in light of the potential applicability of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) in a non-orthopedic context, the Board resolves doubt as to the current presence of this disability. On entry into service, the examining physician found no pertinent abnormalities and the Veteran made no relevant complaints. The STRs do not document any complaints, diagnoses, or treatment pertaining to the disabilities on appeal. On separation examination in July 1971, no pertinent abnormalities were found. There are no records showing leukemia, multiple myeloma, or Merkel cell carcinoma dated from within one year of discharge. At the hearing, and in correspondence submitted throughout the appeal, the Veteran has reported that his disabilities are related to exposure to contaminated water from Camp Lejeune during service. He testified that while he was not stationed at Camp Lejeune, he served at Bogue Airfield from July 1968 to late 1969 and consumed water transported there from Camp Lejeune. The law provides that a veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. If a Veteran was so exposed, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(7) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The applicable list of diseases eligible for presumptive service connection includes adult leukemia and multiple myeloma. 38 C.F.R. § 3.309(f). Service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307(a)(7)(iii.). The Veteran did not serve at Marine Corps Base Camp Lejeune or Marine Corps Air Station New River, North Carolina. Rather, personnel records show that he was stationed at Marine Corps Air Station Cherry Point, North Carolina from approximately June 1968 to March 1970. Service at Cherry Point, "which is geographically separate from Camp Lejeune (approximately 55 miles away), has a separate water source, and is under a separate command structure does not meet the definition of service at Camp Lejeune" for the purpose of 38 C.F.R. § 3.309(f). 82 Fed. Reg. 4173, 4177 (Jan. 13, 2017) (emphasis in original). As such, the legal presumptions relating to Camp Lejeune veterans do not apply. Veterans without the requisite 30 days of service at Camp Lejeune, including those who allege exposure aboard amphibious vessels without military orders or other official service department records reflecting assignment to serve at Camp Lejeune, may still establish service connection for any disease or disability on a direct basis. Direct service connection for any disease alleged to have been caused by the contaminants in the water supply at Camp Lejeune requires evidence of a current disease or disability, evidence of exposure to contaminated water at Camp Lejeune, and a medical nexus between the two, supported by a sufficient medical explanation. 82 Fed. Reg. 4173, 4177 (Jan. 13, 2017); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis.) To support his claim of service connection on a direct basis, the Veteran has conducted research and submitted various pieces of evidence. He has submitted maps showing the proximity of Bogue Field to Camp Lejeune, photographs from 1968 of the Water Buffalo tanks from which he drew and consumed water, and articles concerning the health effects of exposure to contaminated water from Camp Lejeune. He submitted January 2014 and June 2017 buddy statements of D.G., who stated that he filled the Water Buffalo tanks with water from Camp Lejeune and transported the tanks to Bogue Field. He submitted an August 2002 Wing Order from the United States Marine Corps addressing logistical support for Bogue Field. Finally, he submitted documents describing the water table and aquifers of the area to support a theory of widespread contamination from Camp Lejeune. In June 2019, the Board remanded the claims to obtain information concerning the water sourcing at Bogue Field in 1968 and 1969. The VA Regional Office made multiple inquiries in response. The National Archives and Records Administration (NARA) researched the matter but was unable to produce information on water content reports or other information about the water supply at Bogue Field in 1968-1969. The NARA additionally searched pertinent filing codes for water supply, purification, and refrigerating plants, as well as for water distribution systems, but did not find any relevant information. In September 2020, the Board denied the claims, and, as noted, the Veteran appealed the Board's decision to the Court. In the June 2021 Joint Motion, the parties determined that the Board did not adequately support a finding made on page six of the September 2020 decision, that there was "no probative evidence to support the contention that any Water Buffalo tanks present at Bogue Field in 1968 and 1969 were filled at Camp Lejeune" (emphasized in Joint Motion). In doing so, the parties noted the Veteran's contention that, based on the time it took for the Water Buffalos to return to Bogue Field after a refill, the water had to have come from Camp Lejeune. The parties also discussed that while the statements of D.G. did not pertain to the timeframe the Veteran was at Bogue Field, the Board did not adequately explain why his statement about transporting water in the 1970s did not support the inference that service members in the late 1960s also transported water in an identical or similar manner. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Initially, the Board again accepts the Veteran's testimony that he served at Bogue Field even though the details of such service are not corroborated in the official service record. Additionally, the Board acknowledges its poor choice of language in the September 2020 decision, and does not find the evidence submitted by the Veteran regarding his reports of exposure to be completely devoid of any probative value. However, for the reasons below, the Board finds the record as a whole is insufficient to establish that the Veteran, who was not present at Camp Lejeune at any point during military service, was exposed to contaminated water from that location. As stated by the United States Court of Appeals for the Federal Circuit in Combee, "proof of direct service connection thus entails proof that exposure during service caused the malady that appears many years later. Actual causation carries a very difficult burden of proof." Combee, 34 F.3d at 1042. With regard to the reported exposure to contaminants through the Water Buffalo tanks, initially, the Veteran has not demonstrated any specialized training or experience to indicate he is capable of identifying the presence of trichloroethylene (TCE), perchloroethylene (PCE), benzene, or vinyl chloride. As such, his reports are insufficient to establish exposure to these chemical agents during military service. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Additionally, the Veteran does not report that he, himself, participated in filling the tanks. See, e.g., February 2018 letter. The Board has considered his report, noted in the Joint Motion, that given the length of time it took Motor Transport drivers to get the Water Buffalo tanks filled and return to Bogue Field with them, the water had to have come from Camp Lejeune. This assertion is speculative and is not supported by any credible or probative evidence. The evidence on this question does not rise to the level of equipoise and thus does not establish that the Veteran consumed water from Camp Lejeune. Further, the statements of D.G. do not pertain to the timeframe the Veteran reports he was at Bogue Field; in the January 2014 statement, D.G. states he filled the Water Buffalos in April-May 1972 and February 1973, and in the June 2017 statement he reports he filled the tanks during 1971 and 1972. The Board has considered the concerns of the parties in this regard, but does not find that the statement of one individual as to how he personally filled tanks years later, at a time when the Veteran was not present, persuasively establishes that the Veteran consumed water from Camp Lejeune. This is so even considering the pictures and maps submitted by the Veteran, noted by the parties. Moreover, to the extent the Veteran submitted the August 2002 Wing Order to indicate that there was only one source of potable water on site at Bogue Field, the Board finds the report is not persuasive because it pertains to the year 2002, not 1968 or 1969. It thus remains unknown how many sources of potable water were available during the Veteran's time at Bogue Field, and the origin of the water. As for the reported exposure through the aquifer systems, while the Board has considered the University of North Carolina geology study submitted by the Veteran in this regard, the information reflected in the study simply is not persuasive as to the specific questions at issue in this appeal, namely, the duration, method, and potential causative effect of any chemical exposure to this Veteran at Bogue Field in 1968 or 1969. In sum, the Board finds that the preponderance of the evidence is against the claims. The weight of the evidence does not show that the Veteran's disabilities are related to his active military service. Actual exposure to contaminated water from Camp Lejeune has not been established. The disabilities were not found in service or within one year of separation from service; rather, the evidence reflects that they were not shown until years after service discharge. There were no reports of any pertinent disability at discharge and the disabilities were not found on his service discharge examination. The record does not include an opinion on the matter of service connection. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) 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) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). As actual exposure to contaminated water from Camp Lejeune has not been established, the Board finds that there is no indication, other than the Veteran's report, of any association between his disabilities and service. He does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of his medically complex disabilities. Kahana, 24 Vet. App. at 437. His statements alone are thus insufficient to warrant a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA is under no duty to obtain a medical opinion addressing direct service connection. Finally, to the extent the Veteran seeks secondary service connection for Merkel cell carcinoma, because service connection has not been awarded for the multiple myeloma, an award of secondary service connection cannot be made. (Continued on the next page) Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The Board is grateful to the Veteran for his honorable service, and is sympathetic to the fact that he has significant medical disabilities and has undergone a prolonged course of treatment. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.