Citation Nr: A21019486 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 210204-139203 DATE: December 7, 2021 REMANDED Service connection for lung cancer is remanded. Service connection for brain cancer is remanded. Service connection for liver cancer is remanded. Service connection for the Veteran's cause of death is remanded. Dependency and Indemnity Compensation (DIC) under 38 U.S.C. 1318 is dismissed as moot is remanded. REASONS FOR REMAND The Veteran initially served on active duty from February 1977 to October 1979 and was honorably discharged. His period of service from October 1979 to February 1980 has been designated as a discharge or release from service under other than honorable conditions and has been found to constitute a bar to VA benefits, for this period only. The Veteran died in October 2018 and the appellant is his surviving spouse. In January 2020, the Regional Office (RO) granted substitution for the appellant. The case is on appeal from a February 2020 rating decision. In February 2021, the appellant appealed the February 2020 rating decision to the Board under the evidence submission review lane of the Appeals Modernization Act (AMA), which allowed the appellant 90 days to submit additional evidence that could be considered. The appellant submitted evidence in support of the claims thereafter. 1. Service connection for lung cancer is remanded. This issue is remanded to attempt to obtain missing treatment records and a new opinion. As noted, the Veteran died in October 2018. His death certificate lists his cause of death as small cell lung cancer with metastasis to his liver and brain. The Veteran asserted during his lifetime that his lung cancer, which led to his death, is related to service, to include his in-service exposure to contaminated water while at Camp Lejeune. The Veteran's service personnel records (SPRs) confirm requisite service at Camp Lejeune for over 30 days. A chronological record of service shows that he was assigned to Camp Lejeune at the start of September 1979. The DD 214 for his second period of service then shows that he reenlisted at Camp Lejeune in mid-October 1979. This raises an inference that he was at Camp Lejeune for greater than 30 days. At present, the claims file includes no medical records pertaining to the Veteran's treatment for lung cancer. As this information would be relevant, it should be obtained. A new VA opinion is also needed. A November 2019 VA examiner gave a negative opinion. The examiner gave an extensive and cogent analysis, essentially explaining that the only post-service documentation is the death certificate and a medical opinion which gives the Veteran's cause of death. She stated the studies suggesting a relationship of solvents with lung cancer were limited to a single meta-analysis of epidemiologic studies and modeling of trichloroethylene (TCE) toxicokinetics, which showed an increased risk of lung cancer at high exposure to TCE. She indicated, however, that the data was not statistically significant. The examiner reported the Veteran was stationed at Camp Lejeune for only 44 days and the latency to his lung cancer diagnosis was approximately 38 years. Therefore, she opined the Veteran's lung cancer was less likely than not caused by or related to his exposure to contaminated water at Camp Lejeune. A private (non-VA) examiner in February 2021 it is at least as likely as not that the Veteran's lung cancer was caused by his in-service exposure at Camp Lejeune to contaminated water. The examiner reported the Veteran was 13 years younger than the average age for an individual diagnosed with small cell lung carcinoma, which supports that he had environmental carcinogens as the trigger. The examiner further reported the great majority (80%) of small cell lung cancers occur with known tobacco smoking history. However, he stated, the Veteran had no history of smoke or smokeless tobacco use. The examiner indicated there are no relevant reasons to explain the Veteran's small cell lung cancer in his post-military life and additionally, there have been known cases caused by chemical and radiation exposure. The February 2021 examiner further reasoned that during the time the Veteran served at Camp Lejeune, the water supply was contaminated by a variety of chemical agents, including TCE, other chlorinated hydrocarbons and benzene. He noted the Veteran was almost certainly exposed to these agents by ingesting water and through contact during washing and bathing. The examiner noted the Environmental Protection Agency (EPA) has designated 93 contaminated sites at Camp Lejeune and has identified the chemical contaminants of concern for each site, including in the ground water, surface water, sediment and soil. The examiner explained that the EPA has determined they posed an unacceptable risk to human health and the environment. The examiner indicated there is no other plausible explanation for the Veteran's small cell lung carcinoma than his exposure at Camp Lejeune to contaminated water and from a medical perspective, this is the best known medically based conclusion. As such, the examiner concluded based on the Veteran's time at Camp Lejeune in 1979, it is at least as likely as not that his lung cancer was caused by his exposure to recognized human carcinogens and heavy metals during such service. The Board finds that this private examiner's opinion, at present, must be assigned limited probative weight. Most significantly, the examiner materially relied on a finding that the Veteran had no history of smoking or smokeless tobacco use. Yet, the death certificate affirmatively states that tobacco use contributed to death. This raises a strong inference that (a) the Veteran did use tobacco during his lifetime, and (b) it caused or contributed to his death. This does not rule out the possibility that environment exposures at Camp Lejeune also might have caused or contributed to death. See, e.g., ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). To this end, the adequacy of the VA examiner's opinion is called into question, which indicates that a new opinion is needed. Overall, remand is needed for these two reasons. This action is needed to correct duty to assist errors that occurred prior to the rating decision on appeal. 2. Service connection for brain cancer is remanded. 3. Service connection for liver cancer is remanded. 4. Service connection for the Veteran's cause of death is remanded. 5. Dependency and Indemnity Compensation (DIC) under 38 U.S.C. 1318 is dismissed as moot is remanded. Issues 2-5 are remanded as they are intertwined with issue 1. The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for any private (non-VA) providers or facilities who may have additional medical records pertinent to treatment for the Veteran's cancer. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain any outstanding VA treatment records, including records of all treatment obtained through VA's Choice program and all records scanned into his electronic health record. 3. Obtain an opinion from an appropriate clinician who is qualified in respiratory medicine or oncology. The examiner is asked to address the following: Was the Veteran's cancer at least as likely as not related to contaminants in the water during service at Camp Lejeune? The examiner is advised that a negative opinion cannot be based solely on the fact that the condition is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. Hence, in answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether the medical condition is a result of contaminant exposure even though it is not on the list of "presumptive" diseases. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.