Citation Nr: 21069006 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-36 607 DATE: November 17, 2021 ORDER Entitlement to service connection for esophageal cancer is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT The Veteran's esophageal cancer was not manifested in service or within a year following his discharge from active duty, and the preponderance of the evidence is against a finding that it is related to his service to include as due to exposure to contaminated drinking water therein. CONCLUSION OF LAW The criteria for entitlement to service connection for esophageal cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 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 September 1966 to April 1968. During the pendency of the appeal, the Veteran died in March 2015. The Department of Veterans Affairs (VA) Regional Office (RO) granted substitution to the appellant over the current claim. The appellant attended a hearing before the undersigned Veterans Law Judge in October 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for esophageal cancer During his lifetime, the Veteran contended that the Veteran's esophageal cancer is a result of his exposure to contaminated water during his active service at Camp Lejeune. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A veteran who had no less than 30 days 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. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.307(a)(7). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines "contaminants in the water supply" as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. To qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309(f), (i.e., kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The rulemaking applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 4173-4185 (January 13, 2017). The evidence of record does show that the Veteran was stationed at Camp Lejeune and his exposure to the contaminated water during that time has been conceded. However, esophageal cancer is not among the listed diseases warranting presumptive service connection. Thus, service connection for this disability on a presumptive basis is not warranted. 38 C.F.R. § 3.309(f). Although service connection is not warranted on a presumptive basis, the Board has also considered the claim on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A September 2014 private disability benefits questionnaire (DBQ) from Dr. W.M. indicated that the Veteran had a diagnosis of esophageal cancer. Dr. W.M. noted that the Veteran was recently diagnosed with metastatic esophageal cancer and that he is receiving weekly palliative chemotherapy due to his terminal diagnosis. A medical opinion regarding the etiology of the Veteran's esophageal cancer was obtained in February 2015. The examiner opined that it was less likely than not that the Veteran's esophageal cancer was caused by or a result of his exposure to contaminated water at Camp Lejeune. The examiner noted that the Veteran was exposed to contaminated water at Camp Lejeune for a period of 454 days. The examiner stated that the Veteran was diagnosed with esophageal squamous cell carcinoma in August 2014 at age 70, approximately 46 years after service at Camp Lejeune. The examiner noted that the Veteran is a retired owner of a dry-cleaning business, and has a history of radium work in 1961, as well as construction work with potential cement and asbestos exposure. The examiner stated that it is not clear what causes esophageal cancer other than there is a mutation in the person's DNA and these mutations make cells grow and just divide out of control resulting in an accumulation of abnormal cancer cells that can invade nearby structures and spread to other parts of the body. The examiner noted that the chance of getting esophageal cancer increases with age, noting that less than 15 percent of cases are found in people younger than age 55, and that men are more than three times as likely as women to get esophageal cancer. Additionally, the examiner noted that smoking and alcohol drinking account for 90 percent of the cases of esophageal squamous cell cancer in North America. The examiner specifically noted that the Veteran's medical records revealed a two pack-per day history of smoking cigarettes for 20 years; followed by the use of oral tobacco up until the time of his cancer diagnosis in August 2014. Additionally, a history of remote ETOH abuse was also reported. The examiner indicated that most studies show that when used in excessive amounts (3 or more drinks per day), alcohol use has been associated with a marked elevated risk of esophageal squamous cell cancer. The examiner noted that cigarette smoking is also strongly associated with esophageal squamous cell cancer, such that the risk is increased by approximately 3-7-fold in current smokers, and that smoking has a synergistic effect with heavy alcohol consumption, and heavy exposure to both has been reported to increase the risk of esophageal squamous cell cancer by a factor of more than 100. The examiner acknowledged that results from at least 10 cohort and 10 case-control studies indicated that the former smokers had a lower risk of developing squamous-cell or unspecified esophageal cancer than current smokers; but that most investigations showed the risk of esophageal cancer remains elevated for many years (at least 10) after cessation of smoking, to decline by about 40% only thereafter. Moreover, the examiner noted that after 10 years of smoking cessation, ex-smokers still have a twofold increased cancer risk as compared to those who never smoked. Furthermore, the examiner noted that chewing tobacco products are associated with an increased esophageal cancer risk. Esophageal cancer is most likely to occur in those with the aforementioned risk factors. Additionally, the examiner noted that environmental studies found no association or a weak association between environmental exposures to chemicals found in contaminated water at Camp Lejeune and esophageal cancer. The examiner noted that while the occupational data has been somewhat conflicting, no studies have found a definitive association between occupational solvent exposure of the type found at Camp Lejeune and esophageal cancer. A large case-control study was done but found no evidence of an association between esophageal cancer risk and exposure to chlorinated solvents, which studied high occupational exposures (5 years or more of working directly with solvents). The examiner stated that "occupational studies have found an increased risk of esophageal cancer with exposures to asbestos; but again, since these studies were few in number the statistical significance of them remain limited and strong conclusions cannot be determined while further studies are warranted at this time". The examiner further referenced a study where it was noted that certain occupations were linked to esophageal cancer such as those who worked in dry cleaning, laundry, at chemical companies and/or aircraft maintenance. However, the examiner noted that it was felt that since few studies isolated TCE exposure that the results were likely confounded by exposure to other solvents as well as to other risk factors, and that most occupational studies of perchloroethylene (PERC) such as in dry cleaners are hampered by the inability to control for other risk factors such as smoking and drinking. The examiner concluded that the Veteran was exposed to contaminated water at Camp Lejeune for a period of less than 15 months, and his identified risk factors include a prior history of 40 pack years of smoking, alcohol abuse and ongoing use of oral tobacco products until his cancer was diagnosed in 2014. The examiner referenced the National Cancer Institute, which notes that "Smoking and drinking alcohol may account for roughly 90% of esophageal squamous cell carcinoma cases". The examiner opined that the main putative risk factors for the Veteran's cancer are his prior history of smoking, alcohol abuse and use of oral tobacco products until recently The Board finds that the preponderance of the evidence weighs against the claim of entitlement to service connection for esophageal cancer. The Board notes that there is no evidence of esophageal cancer in service or for over 40 years after discharge from active service. As noted above, in some circumstances, certain diseases will be presumed to be related to service without a medical opinion, if other conditions are met chiefly that there is a diagnosis of the disease in question within one year of separation from service. In this case, while cancer is considered a chronic disease subject to presumptive service connection, there is no evidence of a diagnosis within one year of the Veteran's 1968 separation. Without evidence of a diagnosis within one year of separation, presumptive service connection is not warranted. Additionally, there is no medical evidence indicating a link between the Veteran's esophageal cancer and his active service, including exposure to CLCW. The Board finds the February 2015 medical opinion to be highly probative because the examiner provided a detailed rationale based on the pertinent lay statements and medical evidence of record, as well as the appropriate medical literature. The examiner specifically noted that, despite quitting smoking many years ago, the Veteran had several significant risk factors for esophageal cancer, including age, gender, potential post-service occupational exposure, and a history of tobacco use. The Board notes that the September 2014 DBQ from Dr. W.M. did not provide an opinion regarding the etiology of the Veteran's esophageal cancer. The Board notes that a lay person is competent to give evidence about observable symptoms such as epigastric discomfort. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is competent to address the etiology of a disability in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the questions of diagnosis and causation extend beyond an immediately observable cause-and-effect relationship. As such, the Veteran and the appellant are not competent to address the diagnosis or etiology of the Veteran's disability. Accordingly, the Board concludes that service connection for esophageal cancer, to include as secondary to in-service exposure to contaminated water at Camp Lejeune, is not warranted. As the preponderance of the evidence is against this claim, it must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran's death is remanded. A February 2016 rating decision denied entitlement to service connection for the Veteran's cause of death. The appellant submitted a timely notice of disagreement in March 2016. A Statement of the Case (SOC) was provided for this issue in February 2018. However, there is credible evidence of record that neither the appellant nor her representative received the SOC. The February 2018 SOC was in fact returned to sender in that same month. Because the appellant has submitted a timely notice of disagreement (NOD), and there is evidence that the SOC was never received by the appellant or her representative, the Board will take jurisdiction for the purpose of remanding for reissuance of the SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Issue a statement of the case regarding entitlement to service connection for the Veteran's cause of death, based on the February 2016 rating decision and March 2016 NOD. The AOJ should fully address the appellant's 38 U.S.C. § 1151 contention that the Veteran's death was caused by VA medical care due to a failure to timely diagnosis the Veteran's condition. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.