Citation Nr: 21065800 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-61 846 DATE: October 27, 2021 ORDER Entitlement to service connection for residuals of thyroid cancer, to include as due to exposure to contaminated water at Camp Lejeune is denied. FINDING OF FACT The Veteran's residuals of thyroid cancer status post total thyroidectomy are not attributable to an incident or event during his period of service, to include as a result of exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for thyroid cancer have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 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 August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board hearing, but the Veteran withdrew his request for a Board hearing in September 2021. 38 C.F.R. § 20.704(e). The Board notes that the representative requested a 60-day extension to submit a medical report, which has now been received and associated with the record, thus, the request is denied. 1. Entitlement to service connection for residuals of thyroid cancer, to include as due to exposure to contaminated water at Camp Lejeune Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, malignant tumors are chronic diseases. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. A veteran, or former reservist or member of the National Guard, 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 the 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. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. For purposes of this section, 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). Contaminants in the water supply refer to the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply system located at United States Marine Corps Base Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), certain diseases shall be service-connected when manifested to a degree of 10 percent or more at any time after service, even though there is no record of such disease during service, subject to the rebuttable presumption provisions of §3.307(d). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to contaminated water exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran contends that his thyroid cancer is due to his exposure to the contaminated water supply while he was stationed at Camp Lejeune from 1963 to 1967. Available service treatment records contain no documentation of complaints of or treatment for symptoms associated with thyroid cancer during service. Treatment records document that the Veteran was diagnosed with stage II papillary thyroid cancer. The Veteran underwent a total thyroidectomy and central neck dissection in March 2012 and completed therapy in June 2012. A metastasis scan in July 2013 showed no evidence of metastasis. A September 2016 VA treatment note indicated the Veteran was last seen for his thyroid issues in 2014. The Veteran's recent VA treatment notes from October 2017 indicate that the Veteran is very physically active and works out daily. A September 2021 statement from the Veteran's private physician indicates that the Veteran has a history of thyroid cancer status post thyroidectomy without evidence of recurrence. The private physician indicated that the Veteran is concerned that his cancer was due to contaminated water at Camp Lejeune. The Board notes that the physician did not provide an opinion linking the contaminated water at Camp Lejeune with the Veteran's history of thyroid cancer. In July 2014, a VA examiner reviewed the Veteran's file and relevant medical treatises and concluded that it was less likely as not (less than 50% probability) that thyroid cancer was caused by exposure to contaminated water at Camp Lejeune. As rationale, the examiner noted that risk factors for thyroid cancer include radiation exposure, family history, chronic hepatitis, and certain occupational and environmental exposures. The examiner further noted that the National Research Council (NRC) reviewed the available medical literature and concluded that there is insufficient/inadequate evidence to associate thyroid cancer with exposure to the solvents known to be contaminants in the water at Camp Lejeune. The examiner also noted that the Veteran had certain other possible risk factors for thyroid cancer. In this case, the Veteran's claimed thyroid cancer is not among the diseases presumed to be associated with exposure to contaminated water at Camp Lejeune. In addition, though the Veteran has a current diagnosis of residuals of thyroid cancer, the most probative evidence establishes that the thyroid cancer did not onset due to exposure to the contaminated water supply at Camp Lejeune. The Board has considered the statements from the Veteran that he believes that his consumption of significant quantities of contaminated water while a boxer at Camp Lejeune caused his cancer. The Veteran is not competent to link his thyroid cancer to a period of service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is a lay person and is not competent to establish that his current thyroid cancer onset because of an event or incident during a period of service, to include exposure to contaminated water at Camp Lejeune or offer an opinion as to etiology of any current thyroid cancer. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. Here, the most probative opinion, the July 2014 VA medical opinion, found that after reviewing the Veteran's file and the medical literature, there were no conclusive studies cited that document thyroid cancer being caused by exposure to contaminated water at Camp Lejeune or similar contaminants elsewhere. Thus, the physician concluded that exposure to Camp Lejeune contaminated water did not cause the Veteran's thyroid cancer. The Board affords more probative weight to the opinion of the VA physician offered in July 2014. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In addition, there is no evidence of a malignant tumor in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (malignant tumor) entity were not noted. Additionally, there is no assertion of continuity of or evidence of a malignant tumor within one year of separation from service. Thus, service connection cannot be awarded on this presumptive basis. 38 U.S.C. § 1101, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. The claim of entitlement to service connection for thyroid cancer must be denied. The preponderance of the evidence is against the claim and the benefit-of-the- doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, Associate 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.