Citation Nr: 21068049 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 18-15 578 DATE: November 8, 2021 ORDER Service connection for colon cancer is granted. REMANDED Entitlement to service connection for thyroid cancer is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his colon cancer is at least as likely as not related to his in-service exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for colon cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1985 to July 1989. These matters come 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) in Milwaukee, Wisconsin. In a February 2020 decision, the Board denied service connection for colon cancer and for thyroid cancer. The Veteran appealed the Board's February 2020 decision to the United States Court of Appeals for Veterans Claims (Court), which in an April 2021 memorandum decision, set aside the Board's February 2020 decisions and remanded them back to the Board for further development. 1. Entitlement to service connection for colon cancer The Veteran contends that his colon cancer and thyroid cancer onset due to his exposure to the contaminated water supply while he was stationed at Camp Lejeune from 1985 to 1989. The Board concludes that the Veteran has a current disability that s related to his exposure to contaminated water at Camp Lejeune. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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 or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 chemical compounds involved have been associated by various scientific organizations with the possible development of certain chronic diseases. However, many unanswered questions remain regarding the extent of base water contamination, the type and duration of exposure experienced by base personnel, and the likelihood that contaminant levels in the water supply were high enough to result in a particular disease. While these issues are being studied, it will be assumed by VA that any given veteran who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases found to be associated with contaminants present in the water supply at Camp Lejeune. As amended, 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for veterans who served at Camp Lejeune for no less than 30 days from August 1, 1953, to December 31, 1987, and who have been diagnosed with certain diseases. 38 C.F.R. § 3.309(f). The Board notes that kidney disease is not a disease listed as presumptively related to contaminated water exposure under 38 C.F.R. § 3.309(f). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service, to include as based on exposure to contaminated water. See, Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Available service treatment records contain no documentation of complaints of or treatment for symptoms associated with colon cancer. A March 2016 private treatment record documents that the Veteran has stage III colon cancer. A September 2016 private treatment record showed that genetic testing results did not reveal a mutation in the 17 genes associated with hereditary colon cancer. An April 2018 statement from the Veteran's treating surgeon reflects that the Veteran developed colon cancer at the age of 49 in 2015. The surgeon noting the Veteran's service at Camp Lejeune reported that the Veteran may have been exposed to a known carcinogenic agent within the drinking water. The surgeon also noted that a link had been established between the carcinogens and multiple neoplastic processes including adult leukemia, aplastic anemia, myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma and Non-Hodgkin's lymphoma. The surgeon stated that it was extremely rare for someone to be diagnosed with multiple independent primary malignancies at the same time. In such cases, either a genetic predisposition to cancer or environmental exposure may be causative. The surgeon noted that the Veteran underwent genetic testing to determine if he was genetically at risk for any malignancy. The tests were completely normal, and the surgeon stated that strong consideration should be given to an environmental exposure such as the contaminated drinking water at Camp Lejeune. The surgeon summarized that being simultaneously diagnosed with both a thyroid cancer and colon cancer was extremely rare. The surgeon noted that the Veteran had no genetic predispositions to cancer and concluded that an environmental exposure, such as contaminated drinking water at Camp Lejeune, may be to blame. Here, the Board notes that words such as "may" make a doctor's opinion speculative. See, Bostain v. West, 11 Vet. App. 124, 12728 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus. The August 2019 Report of VA examination documents the physician's opinion that exposure to Camp Lejeune contaminated water did not cause the Veteran's colon cancer. The physician explained that after reviewing the "ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases" and general medical literature, there were no studies cited that document colon cancer. The physician noted that the effects of exposure to Camp Lejeune contaminated water related to colorectal cancer was studied. However, based on the mixed findings in the epidemiological studies, ATSDR concluded that there is below equipoise evidence for causation for TCE and rectal cancer. The epidemiological evidence for an association between PCE exposure and rectal cancer is weak. Findings of several of the studies were based on small numbers of exposed cases. Of the three studies with greater than 10 exposed cases, the findings were conflicting. The physician concluded that because of the weak epidemiological evidence, ATSDR concludes that there is below equipoise evidence for causation for PCE and rectal cancer. The physician noted that the Veteran's 25-year smoking history was the most significant risk factor for the development of his colon cancer. The physician documented extensive review of medical literature on colon cancer and thyroid cancer. In this case, the Veteran's claimed colon cancer is not among the diseases presumed to be associated with exposure to contaminated water at Camp Lejeune. In addition, though the Veteran has current colon cancer, the most probative evidence establishes that the colon cancer did not onset due to exposure to the contaminated water supply at Camp Lejeune. See, August 2019 VA examination medical opinion. Here, the VA examiner failed to discuss the Veteran's lack of family history for colon cancer and his genetic testing which showed no markers for colon cancer, and instead relied on his history of smoking to determine the cause of his colon cancer. The Board notes that while the examiner described the connection between the chemical exposure and colon cancer as "weak", they did not discuss how strong the connection between smoking and colon is, but rather asserted without any rationale that smoking was the most significant risk factor. As such, the Board finds this opinion to be on limited probative value. A September 2021 medical opinion from Dr. P.M.A. a private oncologist, who noted that "[f]rom at least 1957-1987 or later, the drinking water systems that supplied Camp Lejeune's housing areas were contaminated, which contained the VOCs Perchloroethylene (PCE), Trichloroethylene (TCE), Benzene, and Vinyl Chloride, at levels higher than EPA regulations. The specialist explained that "[t]here are several studies that support the relationship of colon cancer to exposure to both TCE and PCE. Wartenberg et al. (2000) noted possible associations between multiple myeloma and prostate, laryngeal, colon cancer, as well as cervical cancer and TCE or perchloroethylene exposure (1). Another study supporting the association between TCE exposure and colon cancer was reported by Blair (1998). The purpose of this study was to extend the follow up of a cohort of 14,457 aircraft maintenance workers to the end of 1990 to evaluate cancer risks from potential exposure to trichloroethylene and other chemicals. A number of different criteria were evaluated. One in particular, Rate ratios (RR) (95%CI), evaluated the number of events for incident cancers by cumulative exposure to trichloroethylene and sex (cohort members with no chemical exposures as the controls). Under this category, colon cancer among men was significantly increased with RRs of 2.9, 4.3, and 5.7 from the lowest to the highest exposure categories for trichloroethylene. Thus, this study demonstrated a positive association between TCE exposure and both mortality and incidence (2). Finally, in a study by Paulu et al., relationship between cancer of the colon-rectum (n=326), and exposure to tetrachloroethylene (PCE) from public drinking water was examined. Subjects were exposed to PCE when it leached from the vinyl lining of drinking-water distribution pipes. The authors concluded that the evidence suggested the possibility of an association between exposure and the development of the colon-rectum (3)." The oncologist further explaied that "[d]evelopment 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 inhibitional low cells to become neoplastic (cancer). The agents [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 & benzene while serving at Camp Lejeune. Also, as previously noted, [the Veteran] has no known genetic or family history of colon cancer. Although [the Veteran] had a history of smoking, and there is an association between smoking and colon cancer, it is not a cancer with strong association." The doctor then opined that it is at least as likely as not that the Veteran's colon cancer was due to exposure to groundwater contaminants at Camp Lejeune. Here, oncologist's opinion is fully articulated, factually accurate, and provides sound reasoning for the conclusion reached. See, Nieves-Rodrigues v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, as a specialist in oncologist, her opinion is given great weight. As such, the Board finds it to be significantly probative. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current colon cancer was caused by his exposure to contaminated water while at Camp Lejeune. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for colon cancer is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for thyroid cancer is remanded. Pursuant to the Court's April 2021 decision, this matter is remanded for a new VA examination to determine the etiology of the Veteran's thyroid cancer. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his thyroid cancer. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is colon cancer at least as likely as not related to service, including conceded exposure to contaminated water at Camp Lejeune? The examiner is advised that a negative opinion cannot be based solely on the fact that colon cancer is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. The examiner must specifically list and discuss the risk factors for thyroid cancer, and which apply to the Veteran. The examiner must specifically comment on the Veteran's lack of family history for thyroid cancer. The examiner must specifically comment on the Veteran's September 2016 genetic testing. The examiner must discuss the September 2021 opinion of Dr. P.M.A. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.