Citation Nr: 21068689 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 19-29 122 DATE: November 12, 2021 ORDER Entitlement to service connection for prostate cancer due to contaminated water exposure at Camp Lejeune is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise as to whether the Veteran's diagnosed prostate cancer is etiologically related to the presumed exposure to the contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer due to contaminated water exposure at Camp Lejeune have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Marine Corps from November 1982 to April 1985. This case comes before the Board of Veteran's Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In a November 2021 letter, the Veteran, through his attorney, withdrew his request for a Board hearing following technical issues joining his virtual hearing. The attorney urged decision on the record during the prehearing conference, and the undersigned agrees such is appropriate. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Such presumptive service connection also applies to a separate list of diseases associated with exposure to contaminated water at Camp Lejeune, North Carolina. If a Veteran served 30 days or at Camp Lejeune between August 1953 and December 1987, they are presumed exposed. 38 C.F.R. § 3.307(a)(7); 38 C.F.R. § 3.309(f). Th Veteran served at Camp Lejeune for the requisite time, and so exposure is established. However, prostate cancer is not a listed presumptive condition. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that his prostate cancer was caused by exposure to contaminated water while stationed at Camp Lejeune. As is noted above, this is not a presumptive condition for service connection; the Veteran may still establish direct service connection. The Veteran was diagnosed with and treated for prostate cancer. He served at Camp Lejeune from 1982 to 1985. Exposure to contaminated water at Camp Lejeune is established. Service treatment records (STRs) are silent for any treatment, complications, or diagnosis of a prostate condition. In November 2016, the Veteran was afforded a VA examination. The examiner, identified as a subject matter expert with regard to Camp Lejeune contamination, opined that the Veteran's prostate cancer was less likely than not caused by or the result of the Veteran's exposure to Camp Lejeune contaminated water (CLCW) for three reasons. She explained that the prevalence of prostate cancer in the general population, the Veteran's age, the lack of a compelling causality between CLCW exposure for less than 5 years, and prostate cancer in the medical literature. She indicated that the prostate was the most common cancer in American men. Further, the Veteran's age was the single biggest risk factor for his development of prostate cancer. The Veteran was diagnosed with prostate cancer at 52, and the incidence of prostate cancer rises rapidly after age 40, with a prevalence ranging anywhere from 5 to 46 percent in men aged 51 to 60 years. She indicated that there was insufficient evidence supporting causality between CLCW exposure for less than 5 years (the Veteran had 2.2 years) and prostate cancer in the occupational studies. The duration and level of exposure in the preponderance of occupational studies considered exceeded the levels reported the CLCW. Therefore, she concluded that his prostate cancer was less likely than not caused by or the result of the Veteran's exposure to CLCW. In a November 2019 private opinion, Dr. CK, an oncologist, noted that he reviewed the Veteran's medical and military record. He noted that the Veteran was stationed at Camp Lejeune for over 2 years. He indicated that the Veteran was diagnosed with prostate cancer at age 52. Dr. CK wrote that service at Camp Lejeune during 1982 to 1985 translated into conceded exposure to the known contaminants there, including the known carcinogens TCE, PCE, Benzene and Vinyl Chloride. Dr. CK noted that medical and scientific evidence had linked TCE with the genesis of prostate cancer and a higher mortality risk from prostate cancer. He noted that epidemiologic studies revealed a higher death rate from prostate cancer for those serving at Camp Lejeune as compared to the general population, or even compared with those at Camp Pendleton. The Environmental Protective Agency (EPA) considered TCE exposure linked with increased risk of several human cancers, including prostate cancer. Dr. CK wrote that the Veteran had few personal risk factors associated with prostate cancer, specifically he was at least 14 years younger than the average age, had no first-degree relatives with prostate cancer, had no known genetic mutation, and was never obese. The Veteran was of African American descent which was his only personal association risk factor. There was no evidence that the Veteran was exposed to other carcinogens as they might relate to prostate cancer either before or following his service. He concluded that on the documented 2 years at Camp Lejeune, the human carcinogens known to have been present there during that time, the statistical unlikelihood of him naturally developing prostate cancer having only a single risk factor (age), and scientific evidence for a causal relationship between carcinogens at Camp Lejeune, specifically TCE and prostate cancer. Dr. CK opined based upon a reasonable degree of medical certainty and scientific probability that the Veteran's diagnosis of prostate cancer was at least as likely as not caused by his exposure Camp Lejeune contaminated water. Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record is at least in equipoise as to whether his prostate cancer was caused by active service. The Board notes that while both examiners cited statistics in support of their opinions, Dr. CK's citations appear to more closely reflect the Veteran, as opposed to the general population. Service connection is accordingly granted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.