Citation Nr: 21008434 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-45 718 DATE: February 17, 2021 ORDER Entitlement to service connection for breast cancer, to include as due to exposure to contaminants in the water supply at Camp Lejeune, is denied. FINDING OF FACT There is no evidence of breast cancer or symptoms shown in service, no medical evidence that a breast condition manifested to a compensable degree within one year of service separation, and no medical evidence supported by objective, medical rationale linking breast cancer to military service or to contaminated water exposure at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for breast cancer, to include as due to exposure to contaminants in the water supply at Camp Lejeune, are not met. 38 U.S.C.A. §§ 1101, 1112, 1110, 1131, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1963 through December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for breast cancer, to include as due to exposure to contaminants in the water supply at Camp Lejeune (CLCW) Legal Criteria To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293; 38 C.F.R. § 3.303(a). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride (VC), and other VOCs were also found to be contaminating the water-supply systems. Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These diseases are esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. In 2012, Congress passed the Honoring America’s Veterans and Caring for Camp Lejeune Families Act (P.L. 112-154) (Act). The Act provides health benefits for qualifying veterans and their families who have contracted any of the 15 conditions listed in the 2009 NRC Report, including neurobehavioral effects. 38 C.F.R. §§ 3.307 and 3.309 were amended to provide presumptive service connection for 8 diseases associated with contaminants present in the water supply at Camp Lejeune from August 1, 1953, to December 31, 1987. See 82 Fed. Reg. 4173 (January 13, 2017). This amendment applies to claims received by VA on or after March 14, 2017, and claims pending before VA on that date. These diseases include adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease. A presumption of service connection arises for certain diseases if the disease manifests itself to a degree of 10 percent or more following exposure to contaminants present in the water supply at Camp Lejeune. Service at Camp Lejeune means no less than 30 days of 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), 3.309(f). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Factual Background The Veteran contends that his exposure to the contaminants in the water supply at Camp Lejeune (CLCW) have caused his breast cancer. Military service records indicate the Veteran was stationed at Camp Lejeune from September 12, 1963 through December 20, 1963. Service treatment records do not indicate treatment for breast cancer, or any conditions associated therewith while in service. Post service, the Veteran was diagnosed with breast cancer, specifically invasive ductal carcinoma of the left breast, in November 2011. Treatment records indicate that from December 2011 through March 2017, the Veteran underwent to treatment for breast cancer to include chemotherapy, a radical left mastectomy and continuous use of tamoxifen. Treatment records also indicate that the Veteran had a body mass index (BMI) ranging from 29.19 to 30.57 kg. In an October 2014, a VA examiner opined that it was less likely than not (less than 50% probability) the Veteran’s breast cancer was incurred in or caused by military service and there was no definitive medical evidence to support or suggest that the contaminated water at Camp Lejeune was a causative factor in the development of breast cancer. Specifically, the examiner found that there was limited research regarding whether trichloroethylene, tetrachloroethylene, benzene or vinyl chloride were associated with an elevated risk of male breast cancer. Additionally, the examiner opined that the Veteran was stationed at Camp Lejeune for a brief time period of less than 4 months. The examiner further opined that obesity and familial history were two other potential risk factors associated with breast cancer and obesity tended to cause imbalanced estrogen-testosterone ratios in men with a BMI higher than 30 kg/m2 had a higher risk of male breast cancer than those with a BMI of <25 kg/m2. The examiner noted that the Veteran had a positive family history for breast cancer, and this is suggestive of genetic susceptibility. The examiner further noted mutations in the breast cancer susceptibility gene BRCA2 was associated with increased risk of male breast cancer and accounted for the majority of hereditary breast cancer in men. In July 2017, a different VA examiner opined that the Veteran’s invasive ductal carcinoma of the left breast, status post total mastectomy and adjuvant Tamoxifen therapy, was less likely as not (less than 50/50 probability) caused by or result of exposure to contaminated water at Camp Lejeune. The examiner noted that similarly to women, risk factors such as age, family history, obesity and hormonal influences are risk factors for breast cancer though medical literature indicated that the majority of men with breast cancer had no identifiable risk factors. Relying on reports from the Agency for Toxic Substances and Diseases Registry (ATSDR), the examiner opined that it did not appear benzene or vinyl chloride (VC) would have posed a significant risk at the time of the Veteran’s service because limited volatile organic compounds were present at elevated levels. He opined that the maximum contaminant level (MCL) for trichloroethylene (TCE) was exceeded from August 1953-January 1985 and the MCLs for tetrachloroethylene (PCE/PERC) were not exceeded until August 1974-January 1985; VC from November 1972 through January 1985; and benzene from January 1979 through January 1985 within the Hadnot Point Plaza and Holcomb Boulevard water treatment plant service areas. He further stated that PCE/PERC was elevated in the Tarawa Terrace water treatment areas from November 1957 through February 1987. The examiner further opined that in 2016, VA undertook a “deliberative scientific process” to determine whether there was sufficient available scientific evidence to support a presumption of service connection for “any” health condition resultant of exposure to the chemicals found in Camp Lejeune contaminated water; VA concluded that there was insufficient evidence to establish presumptions of service connection under the Camp Lejeune Act, to include breast cancer. The examiner further opined that limited occupational exposures had been linked with reasonable validity to an increased risk of breast cancer in women, but not with men, and there were no certainties regarding the significance of occupational or environmental exposures in the pathogenesis of male breast cancer. A November 2017 mammogram was negative for signs of breast cancer. Veteran’s breast cancer is presently in remission. Legal Analysis After a review of the evidence of record, the Board finds that service connection for breast cancer, to include as due to exposure to CLCW disability is not warranted. As discussed above, 38 C.F.R. § 3.309(f) specifically lists the diseases that qualify for a presumption of service connection for those who served at Camp Lejeune. Breast cancer is not provided as a condition on that list. Therefore, an analysis on presumptive service connection is not warranted for either issue in this case, and the Board will analyze the Veteran’s claim only on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (1994); 38 C.F.R. § 3.309(f). With respect to a direct service connection analysis, the Veteran had breast cancer, though presently in remission, and this is a disability under the law. The Board recognizes and accepts that the Veteran was stationed at Camp Lejeune from September 1963 through December 1963 and that there is documentation that the water supply at Camp Lejeune was contaminated. As such, there was an in-service industry, based upon the ATSDR reports addressed above. See also Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). However, in considering the medical and lay evidence of record, the Board finds that there is not a nexus between the Veteran’s breast cancer and his active service. The service treatment records were silent as to conditions related to the breast. The Veteran was not diagnosed with breast cancer until November 2011 which is more than forty years after his discharge from service. Additionally, the reports from ATSDR and other guidance provide that male breast cancer is not yet a recognized disease subject to the Act. Lastly, the evidence of record supports that the Veteran may have other risk factors associated with his breast cancer to include obesity. Thus, entitlement to service connection is not supported based on a lack of nexus. Evaluating the medical opinions, the Board does not consider any one opinion to be more probative than another on the issue of etiology. Both the October 2014 and July 2017 opinions were provided by VA physicians who were considered subject matter experts in the area of CLCW. Both physicians reviewed the Veteran’s medical records and lay statements, provided an etiology of the Veteran’s breast cancer and also provided rationale with support from medical studies and literature. Hence, the Board finds both opinions probative in rendering this decision. Based on the foregoing, the criteria for service connection for breast cancer, to include as due to exposure to CLCW disability is not met. See 38 C.F.R. §§ 3.303 and 3.307. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.