Citation Nr: 21005293 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 20-12 001 DATE: February 1, 2021 ORDER Entitlement to service connection for prostate cancer to include as due to Camp Lejeune service is granted. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran’s prostate cancer was incurred in or the result of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer to include as due to Camp Lejeune Service are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7), 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to November 1986; with service at Camp Lejeune and subsequent Reserve and/or National Guard service. This appeal is before the Board of Veterans' Appeals (Board) from a November 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office. The Veteran seeks entitlement to service connection for prostate cancer to include as due to the consumption of contaminated drinking water at Camp Lejeune. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of this section, contaminants in the water supply means 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. 38 C.F.R. § 3.307(a)(7)(i). The diseases listed in § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). 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)(iii). Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in § 3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(7)(iv). 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), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin's lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson's disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309(f). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, the service treatment records (STRs) do not indicate at any point the Veteran voiced complaints of, or received treatment for any condition related to his prostate or prostate cancer. The service personnel records (SPRs) indicate he was stationed at Camp Lejeune for longer than 30 days. In February 2015, private treatment records indicate the Veteran was diagnosed with prostate cancer and underwent surgery. On October 9, 2017, he submitted a news article which detailed how the chemicals found in the water supply at Camp Lejeune have been linked to prostate cancer. On October 20, 2017, the Board received a statement from a Dr. S.R., who has a PhD in organic chemistry. Utilizing multiple medical journal citations and the use of “statistical methods to assess trends,” Dr. S.R. determined “there is a very high likelihood that [the Veteran’s] prostate cancer is related to his daily exposure to contaminated water” at Camp Lejeune. Moreover, he cited to an Environmental Health Journal article by Frank J. Bove, et. al., entitled, “Evaluation of mortality among marines and navy personnel exposed to contaminated drinking water at USMC base Camp Lejeune: a retrospective cohort study” (herein referred to as “Bove Study”) that was critical of an Agency for Toxic Substances and Disease Registry (ATSDR) report of prostate cancer and Camp Lejeune Veterans. Specifically, the Bove Study determined the ATSDR report only tracked prostate mortality and not occurrences of prostate cancer. On October 31, 2017, the Board received a statement from the Veteran’s friend and nurse, W.C. He attested to have followed the Veteran’s condition and after consulting with medical literature opined it is “more likely than not” his prostate cancer was the result of Camp LeJeune service. To support the conclusion, the nurse cited to the Veteran’s young age of diagnosis, the aggressiveness of his cancer, and the experiences of Veteran’s in general at Camp Lejeune. Moreover, he cited to the previously referenced Bove Study in criticizing the conclusions reached by the ATSDR report. On November 5, 2017 the Board received a statement from his private physician, Dr. N.M., supporting a positive nexus between his prostate cancer and Camp Lejeune service. The physician described the process leading up to the Veteran’s prostate cancer diagnosis and 2015 surgery. The physician noted his service at Camp Lejeune and wrote, “The link between [the Veteran’s] consumption of contaminated water at Camp Lejeune and his premature aggressive form of prostate cancer is difficult to dismiss or be explained otherwise.” Ultimately, the physician determined his prostate cancer was “linked to his exposure to contaminated water while stationed at Camp Lejeune.” In March 2018, the Veteran submitted a statement to the Board in support of his argument that his prostate cancer was the result of consumption of contaminated water at Camp Lejeune. He cited to multiple prior (non-precedential) Board decisions which granted service connection for prostate cancer due to Camp Lejeune service and to the previously mentioned positive nexus opinions. In January 2020, a VA medical opinion was entered into the claims file which included a review of the claims file and a recitation of the Veteran’s medical history. The opinion cited to multiple studies from the ATSDR, including the report criticized by the Bove Study, on the effects of the chemicals found in the Camp Lejeune water and the likelihood of prostate cancer. The examiner summarized the studies finding “there is below equipoise evidence” for causation of prostate cancer as due to Camp Lejeune service. This opinion was supported by the Veteran’s short time at Camp Lejeune, a lack of family medical history, and medical studies indicating prostate cancer before the age of 50 is not uncommon. In July 2020, the Board received another statement from Dr. N.M. attesting to the connection between the Veteran’s prostate cancer and his Camp Lejeune service. The physician cited to multiple medical studies on the relation between cancer and Camp Lejeune service and again recited the Veteran’s medical history. Moreover, he reiterated the importance of the same Bove Study previously cited in the October 2017 statements from Dr. S.R. and nurse W.C., that is critical of the ATSDR report. Ultimately the physician determined it was at least as likely as not that the Veteran’s prostate cancer is due to his Camp Lejeune service. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record is in relative equipoise as to whether the Veteran’s prostate cancer was the result of active duty service. As a preliminary matter, while the evidence reflects that the Veteran was exposed to contaminated drinking water while stationed at Camp Lejeune, his prostate cancer is not among the listed diseases warranting presumptive service connection, per VA regulations. 38 C.F.R. § 3.309(f). Nonetheless, the Veteran may still establish service connection for his prostate cancer with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, the Veteran was diagnosed with prostate cancer and, as previously stated, VA conceded that he was exposed to contaminated water while stationed at Camp Lejeune. See Shedden, 381 F.3d at 1167. Therefore, the Veteran's claim turns on whether his exposure to the contaminated water at Camp Lejeune resulted in his currently diagnosed prostate cancer. On this question, there is probative evidence in favor of, and against the claim. The evidence against the claim includes the January 2020 VA medical opinion which cited to an ATSDR study on the effects of the chemicals found in the Camp Lejeune water and the likelihood of prostate cancer. Indeed, the ATSDR report was the foundational piece in the January 2020 VA medical opinion. The examiner summarized the studies finding “there is below equipoise evidence” for causation of prostate cancer as due to Camp Lejeune service. The evidence in favor of the claim includes the positive nexus opinions within the October 2017 statements from Dr. S.R. and nurse W.C. and the November 2017 and July 2020 statements from the Veteran’s private physician Dr. N.M. The two October 2017 and July 2020 statements all cited to the Bove Study which raised doubts as to the medical determinations found in the ATSDR study heavily relied on by the January 2020 VA examination. Considering the above referenced evidence, the Board finds that to remand for another VA medical opinion would further contribute to “the hamster-wheel reputation of Veterans law.” Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). As such, in cases such as this when there is an approximate balance of positive and negative evidence the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran’s prostate cancer was the result of active duty service. Hence the benefit of the doubt rule applies. Id. Therefore, the Veteran’s claim for entitlement to service connection for prostate cancer to include as due to Camp Lejeune service, is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.