Citation Nr: 21010474 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-24 519A DATE: February 24, 2021 ORDER Entitlement to service connection for prostate cancer due to contaminated water at Camp Lejeune is granted. FINDING OF FACT Finding the evidence to be in relative equipoise, the Veteran’s prostate cancer is related to the contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to April 1988. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a January 2013 rating decision. The Veteran passed away in May 2020 during the pendency of the appeal; his surviving spouse is the Appellant and has been accepted as the Veteran’s substitute for purposes of processing this appeal to completion. The claim was previously denied by the Board in February 2016; the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand vacating the decision and remanding the claim in August 2016 as the decision relied on a December 2012 VA opinion that was based on an improper standard of proof. The claim returned to the Board and was again denied in March 2018. In May 2020, the Court vacated the decision and remanded the claim because the decision failed to address the Veteran’s argument that the relied upon June 2017 VA opinion was inadequate. The claim has once again returned to the Board. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran was diagnosed with prostate cancer in June 2011, which is listed as a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as prostate cancer (manifested by malignant tumors) become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. 38 C.F.R. § 3.309. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, non-hodgkin's lymphoma, adult leukemia, multiple myeloma, parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. Id. As such, prostate cancer is not a disease for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id. Nevertheless, a claimant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record establishes the Veteran was on active duty at Camp Lejeune during the contamination period (June 1984 to April 1985). VA concedes that any veteran who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water between 1957 and 1987. The Veteran’s service treatment records (STRs) are negative for complaints or treatment for prostate cancer. A June 2011 private treatment report noted that the Veteran had a diagnosis of malignant neoplasm of the prostate. Thus, the evidence is not in favor of the Appellant as it pertains to a theory of chronicity or continuity of symptoms. Turning to the theory of direct service connection due to exposure to contaminated water at Camp Lejeune, as mentioned above, a VA opinion was obtained in December 2012; however, as the examiner applied an improper standard in reaching his conclusion, the opinion has been deemed inadequate. Another VA opinion was obtained in June 2017. The examining physician, Dr. A, was a subject matter expert on the Camp Lejeune Contaminated Water project. She reviewed the entire claims file and dedicated 240 minutes to the review. She noted the Veteran was 47 years old at the time of his cancer diagnosis, which was 26 years after being at Camp Lejeune. Regarding his risk factors, Dr. A explained that prostate cancer rarely occurs before age 40, but the incidence rises rapidly thereafter. She included a table showing the results of autopsy studies that from age 41 to 50 years, the prevalence of prostate cancer rises from 3 to 43 percent (the risk rises from 5 to 46 percent from 51 to 60, from 14 to 70 percent from 61 to 70, and even greater risk thereafter). Data from the National Cancer Institute reports the median age of diagnosis in the U.S. is 66 years old. She determined that the Veteran had scientifically supported risk factors of age, obesity, and ongoing smoking. Regarding obesity, she cited to several clinical reviews and meta-analyses finding that higher waist circumference is associated with increased risks of prostate cancer. Regarding smoking, she cited to a Huncharek meta-analysis that reported that smoking was associated with increased prostate cancer incidence and mortality. Turning to scientific review of the contaminated water, she explained that the water supply was found to be contaminated with benzene, vinyl chloride, PERC, and TCE. She described the National Research Council’s 2009 report reviewing the available scientific evidence on the possible adverse health effects of exposure to these chemicals and evaluated the current studies performed on former residents of Camp Lejeune. Based on the research, she stated that TCE and PERC were the only substances with a potentially plausible effect on rates of prostate cancer; thus, the focus of the discussion was based primarily on those chemicals. According to Dr. A, extensive research of the scientific literature found limited relevant data regarding environmental exposure to PERC and TCE in relation to prostate cancer. She cited to several different studies in reaching this conclusion. She cited to the Agency for Toxic Substances and Disease Registry (ATSDR) assessment, which found there was “below equipoise evidence” of any association between PERC/PCE, TCE, or vinyl chloride with subsequent development of prostate cancer. The assessment also indicated that Camp Lejeune started removing the highest contaminated well at Hadnot Point water treatment plant in November 1984 and by February 1985 had switched to using uncontaminated water altogether. In February 1985, two contaminated wells were also shut down, which reduced contaminated drinking water to below ATSDR health-based screening levels. She considered a Bove et al study that evaluated a cohort of Camp Lejeune civilians to a similar cohort of Camp Pendleton civilians, which found slightly elevated rates that did not reach statistical significance of prostate cancer in Camp Lejeune civilians. She included that the results were admitted by the authors to be of questionable validity as there were a low number of prostate cancer deaths, and the confidence intervals were wide, thus, there remained a significant possibility that these findings could be due to chance alone and not due to any true effect or causal relationship. In addition, prostate cancer risk factors such as obesity, family history, and smoking were not available in these studies so were not taken into consideration. To summarize, Dr. A reiterated the Veteran’s risk factors and stated while a few occupational (not environmental) studies suggest that after substantial occupational exposure to these chemicals for at least 5 years there may be an increased risk of developing prostate cancer, there are many more studies that have found no increase in risk after any amount of workplace exposure. At the time the Veteran was at Camp Lejeune, the contaminated wells were being shut down, thereby dramatically reducing potential exposure. Thus, with the possible exception of occupation exposure (which is greater than the estimated Camp Lejeune exposure), the weight of scientific evidence supports that it is less likely than not that the Veteran’s prostate cancer was a result of his relatively brief exposure at Camp Lejeune. In December 2017, the Veteran, through his representative, submitted argument objecting to the adequacy of this examination. It was contended that Dr. A relied on a burden of proof too high by initiating a cause and effect criteria through the use of VA’s Bradford Hill Criteria. The Board finds this contention to be without merit, as the examiner clearly considered the available studies in weighing whether the evidence was in equipoise, and concluded it was “less likely than not” that the Veteran’s prostate cancer was related to his exposure. A private medical opinion was submitted in May 2020. Dr. K, an oncologist who has done extensive research in the field of prostate cancer, reviewed the entirety of the claims file. He stated that known contaminants at Camp Lejeune included human carcinogens of TCE, PCE, Benzene, and Vinyl Chloride. Additionally, the U.S. EPA’s list of contaminants posing health risks at Camp Lejeune also include heavy metals that are classified as human carcinogens and are associated with prostate cancer: cadmium, arsenic, and nickel. Regarding risk factors, Dr. K found that the Veteran had minimal to none. He was 20 years younger than the average age, had no family history of prostate cancer, had no known genetic mutations, and was not of African American race. Regarding age, Dr. K noted that he was 20 years younger than the median age of 66, and the proportion of men in the U.S. with prostate cancer below age 55 is 9.5 percent. He determined that age alone supports environmental triggers leading to the early diagnosis. While the Veteran was overweight, he found that obesity is only weakly associated as a risk factor and is still considered controversial. Dr. K cited to the American Cancer Society which states that obesity does not seem to increase the overall risk of getting prostate cancer; in fact, some studies have found that obese men have a lower risk of getting a low-grade prostate cancer, which is what the Veteran had. Moreover, Dr. K opines that obesity is not a cause equal to a carcinogen, but rather a predisposition to be susceptible to environmental carcinogens. Regarding smoking, Dr. K states this is also only weakly associated with prostate cancer, and the evidence is inconclusive. He cited again to the American Cancer Society which states that most studies have not found a link. Turning to the scientific evidence, Dr. K explains that since most prostate cancers have no known family history and are not inherited malignancies, the primary triggers are environmental – some known, but many are not. Given that cancer is so complex, it would be scientifically incorrect to believe a carcinogen can only cause one type of cancer and not influence others. He proceeded to describe several recent studies illustrating a causative relationship between the toxins at Camp Lejeune and prostate cancer. In the key Bove et al study, it was found that more men were diagnosed with prostate cancer at Camp Lejeune as compared to the general population during the same time period. Not only was the confidence interval a statistically significant result, but because it was a comparison of prostate cancer deaths rather than diagnoses, the findings are likely underestimated. The U.S. EPA in a 2001 report found that TCE was highly likely to produce cancer in humans, and there is an association of TCE exposure with increased risks of prostate cancer. The EPA maintained this position in the 2011 update. In addition to TCE, Dr. K explained that the best current evidence also implicates Benzene exposure as causative of prostate cancer. In a 2018 study, it was found that any exposure to any amount of Benzene was associated with prostate cancer. He also included an analysis of several studies associating heavy metal levels with prostate cancer. Altogether, he concluded that at least TCE and Benzene at Camp Lejeune can certainly be potentially causative or influential to a diagnosis of prostate cancer, at a minimum level of “at least as likely as not,” especially in the Veteran’s case where minimal personal risk factors were present. Dr. K also included his disagreement with Dr. A’s opinion in a number of aspects. First, he pointed out that Dr. A was not an oncologist. Second, Dr. K disagreed with Dr. A’s determination that age was a risk factor for the Veteran, as his age placed him at less than 10 percent odds, a factor that would support his claim, not the contrary. Third, Dr. K disagreed that obesity and smoking are risk factors and reiterated his previously stated rationale. Fourth, Dr. K asserted that Dr. A focused on the statistically insignificant result comparing Camp Lejeune to Camp Pendleton, rather than the statistically significant resulting comparing it to the general population. Fifth, Dr. K stated that Dr. A claimed that during the time that the Veteran was at Camp Lejeune (June 1984 to April 1985), the water and environment was clean. As the position held by VA is that the era of contamination was until December 31, 1987, to claim otherwise would be an unfounded biased opinion. Finally, Dr. K stated that Dr. A ignored all evidence of heavy metals that the EPA has found was present at Camp Lejeune and did not mention heavy metals at all. In weighing the two opinions, the Board will address each of Dr. K’s objections to Dr. A’s opinion. First, while Dr. A may not be an oncologist, she is a physician and subject matter expert in the contamination at Camp Lejeune; thus, the Board finds her to be highly qualified to render an opinion. Second, the Board does find that Dr. A’s determination that age was a risk factor for the Veteran is at odds with her inclusion of data which shows the risk is below 50 percent prior to the age of 50, and that the median age is 66. Third, the Board finds there is a difference in the interpretation of the available body of research associating obesity and smoking with prostate cancer. Dr. A cited to several studies that do find a link between prostate cancer and smoking and obesity, while Dr. K noted the position of the American Cancer Society and other studies in finding there is only a “weak association.” The Board does not find that one opinion is more probative than the other in this regard as they both appear to be based on legitimate medical studies that simply reach different conclusions. Fourth, similarly, the physicians appear to reach different conclusions when it comes to the Bove study. While Dr. A does not address the results between Camp Lejeune civilians and the general population, Dr. K does not address Dr. A’s statements that the study’s validity has been called into question by its own authors and does not account for other risk factors. Again, the Board does not find that one opinion is more probative than the other in this regard. Fifth, Dr. K’s assertion that Dr. A stated the water was clean at the time the Veteran was there is a mischaracterization. She does state that at the time he was there, the contaminated wells and water plants were being shut down, thereby dramatically reducing potential exposure. The statement was initially made in the context of explaining the ATSDR assessment and that by February 1985, the drinking water contamination was reduced to below current ATSDR health-based screening levels – not, as contented, to state that the Veteran was not exposed to chemicals. However, in the three-paragraph summary at the end of the report, she does state that “[a]t the time that [the Veteran] was at Camp Lejeune, the contaminated wells were being shut down, thereby dramatically reducing potential exposure to TCE and PCE.” While the Board still does not interpret the statement to mean the Veteran was not at all exposed, it does suggest she considered the reduction of contamination to be a factor of significance. Finally, while it is true Dr. A focused her analysis on TCE and PCE alone, she provides a thorough explanation for doing so, as she relied on the National Research Council’s 2009 report reviewing all available scientific evidence on the possible adverse health effects of exposure to TCE, PERC, Benzene, and Vinyl Chloride, and determined TCE and PCE were the only substances with a potentially plausible effect on rates of prostate cancer. While she did not mention the EPA’s findings, she relied heavily on the ATSDR assessments which found below equipoise evidence, whereas Dr. K did not mention ATSDR. Thus, again, it appears that both physicians simply chose to rely on different medical literature and studies in reaching their conclusions on a mixed, complex medical question. In sum, both opinions are drafted by highly qualified, well-informed physicians interpreting the available medical literature and research and reaching different conclusions. Neither report is flawless, yet neither is inadequate. As there is one probative opinion in favor of a nexus, and one probative opinion against, the evidence is in relative equipoise. Thus, the benefit of doubt goes to the Appellant, and her claim for service connection is granted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.