Citation Nr: 21015734 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 20-05 217 DATE: March 18, 2021 ORDER Entitlement to service connection for lung cancer is granted. FINDINGS OF FACT 1. The Veteran had active duty service at Camp Lejeune, North Carolina from January 1984 to July 1985. 2. The Veteran’s lung cancer is at least as likely as not related to his exposure to contaminated water at Camp Lejeune during active duty service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for lung cancer have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from September 1983 to October 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision. 1. Entitlement to service connection for lung cancer, to include as due to exposure to contaminated water at Camp Lejeune. 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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for certain enumerated diseases related to exposure to contaminants present in the water supply at Camp Lejeune. For 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). Section § 3.307(a)(7) provides that 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. 38 C.F.R. § 3.307(a)(7)(iii). The enumerated diseases which are deemed to be associated with exposure to contaminated water at Camp Lejeune are kidney cancer; liver cancer; Non-Hodgkin's lymphoma; adult leukemia; multiple myeloma; Parkinson's disease; aplastic anemia and other myelodysplastic syndromes; and bladder cancer. 38 C.F.R. § 3.309(f). 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). The Veteran contends that he developed lung cancer as a result of his exposure to contaminated water during his active service at Camp Lejeune, North Carolina. The Veteran's December 1982 enlistment examination in his service treatment records (STRs) stated that his lungs and chest were normal upon clinical evaluation. The report also stated that his chest x-ray was normal. A stamp on the report shows that a subsequent physical inspection for communicable and/or disqualifying defects in September 1983 revealed that the Veteran was found to be qualified for service. No relevant defects were noted. The December 1982 Report of Medical History was also negative for any respiratory complaints. In November 1983, a chest x-ray was requested in relation the Veteran experiencing an upper respiratory infection for two months and a lower respiratory infection for two weeks. However, the radiographic findings were within normal limits. In a May 1985 asbestos medical surveillance program questionnaire, the Veteran reported that he had been exposed to asbestos prior to his military service, but not during service. The Veteran explained that his father previously worked at a compound that contained asbestos. A subsequent May 1986 reenlistment examination continued to note normal findings regarding the Veteran's lungs and chest. In July 1986, a chest x-ray requested in relation to the Veteran’s weight loss stated in the report that the soft tissues and osseous structures were normal. The lungs were satisfactorily expanded and clear except for calcific densities which were felt to represent healed granulomatous disease. No active process was noted. The costophrenic angles were sharp, and the cardiac silhouette was normal. The impression was old granulomatous disease, otherwise normal chest. No lung or chest abnormalities were noted in clinical evaluation of the September 1990 separation examination, and the report indicated that the chest x-ray was normal. The record shows that the Veteran was diagnosed with invasive adenocarcinoma of the lung after service in 2017. See April 2018 VA examination; November 2017 Private treatment record. After reviewing the above evidence, the Board notes that to the extent that the July 1986 STR’s finding of old granulomatous disease raises the question of whether the Veteran had a lung disorder that preexisted service, neither the December 1982 enlistment examination nor the May 1986 reenlistment examination noted any abnormalities in the Veteran's lungs or chest. As such, the presumption of soundness applies, and this presumption can only be rebutted with clear and unmistakable evidence that a disorder preexisted service and that the disorder was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Although the Veteran reported in May 1985 that he may have been exposed to asbestos prior to service as a result of his father’s occupational exposure, the Veteran also denied a history of any respiratory complaints in the December 1982 Report of Medical History. There were also normal findings in the November 1983 chest x-ray that was obtained in relation to an upper and lower respiratory infection. As discussed further below, the relevant medical opinions in this case from a June 2018 VA examiner and a private medical doctor in July 2020 also failed to identify any evidence of a lung disorder prior to service; and the remaining evidence of record has not suggested otherwise. The Board finds that this evidence is insufficient to demonstrate that the Veteran had a lung disorder that clearly and unmistakably preexisted service. Thus, the presumption of soundness has not been rebutted, and the claim will be considered on the basis of direct service connection. A record of the Veteran's chronological service in his military personnel records reflects that he had service in Camp Lejeune from January 1984 to July 1985. As a result, he is presumed to have been exposed to contaminants in the water supply during service. 38 C.F.R. § 3.307(a)(7)(iii). Although the Veteran's claimed disorder is not presumptively associated with exposure to contaminated water at Camp Lejeune under 38 C.F.R. § 3.307(f), the Board must also determine whether service connection is warranted on a direct basis. See Combee v. Brown, 24 F.3d 1039 (Fed. Cir. 1994). Consequently, the only remaining question is whether the Veteran’s diagnosed lung cancer is related to his exposure to contaminated water at Camp Lejeune during his active service. In June 2018, a VA examiner, a medical doctor, Master of Public Health, and an occupational and environmental medicine physician, provided a negative medical opinion regarding this question. The examiner initially explained that the term cancer actually refers to a very large number of different diseases. Cancer of the various blood forming cells are not only different from cancers in solid organs, but they are also different from each other. Solid organs include everything from the intestines to the bones, lung, colon, prostate, brain, pancreas, skin, etc. Many solid organs can develop several different types of cancer which can be differentiated under the microscope, by their genetics and sometimes by location within the organ. Cancer from one organ may spread (metastasize) to other organs. When cancer spreads, it remains the same cell type as where it originated. Therefore, when prostate cancer metastasizes to bone or lung tissue, it remains prostate cancer and can be identified as such under the microscope, by genetic analysis, through certain biochemical tests, and through its response to treatment. A review of the United States Environmental Protection Agency’s Integrated Risk Information System's Health Hazard Assessments (HHA) for the four solvents in question revealed that only for vinyl chloride (VC) is there any evidence that there may be a link between exposure and an increased risk of developing lung cancer. The examiner also cited to a 1987 study as observing a significant excess of respiratory cancers in a group of 464 workers, and the authors corrected for smoking. The increased risk was associated with longer exposure durations and higher exposure levels. However, a study published in 1981 that looked at almost 5,000 workers indicated that the increase in lung cancer may be due to PVC dust rather than the actual monomer. The examiner also stated that several researchers have concluded that there is only weak evidence for a link between VC exposure and lung cancer. The examiner added that a large study of rubber workers known to be exposed to chemicals, including solvents, in 1978, found an increase in lung cancer in those who worked in the tire curing area. Each of the 13,570 members of the cohort worked for at least 5 years at a tire plant. The excess lung cancer occurred only in men who worked at least 5 years in curing or in molds. The authors concluded that the likely causal agents are the constituents of the curing fume and/or talc. Neither of these is known to contain the four solvents of interest. Other large studies of workers exposed to solvents in the workplace found no evidence of an increased incidence of lung cancer. These include aircraft maintenance workers (14,457 workers), and biomedical research lab workers (3,277). The levels of exposure to organic solvents in workplaces that are known to have exposure to these chemicals are significantly greater than the levels of exposure sustained by service members from the drinking water at Camp Lejeune. Since the majority of published scientific studies have failed to show a correlation between exposure to solvents and an increased risk of lung cancer, at a higher level for a longer time (5 years versus 1.45 years), the examiner found it extremely unlikely that the Veteran's lung cancer is related to solvent exposure. The examiner further stated that a 2014 Agency for Toxic Substances and Disease Registry (ATSDR) study evaluated a cohort of Camp Lejeune civilians with an average employment on base of 2.5 years (30 months). They found a not statistically significant elevated risk of lung cancer in the exposed Camp Lejeune cohort compared to the general population and compared to the control Camp Pendleton cohort; both of these statistics were not statistically significant, meaning the findings being due to chance could not be excluded. In another 2014 study by Bove, et al. a group of Camp Lejeune Marine and Navy personnel with an average exposure of 18 months (1.5 years) were compared to a comparable group of Camp Pendleton military personnel. The authors found lower rates of lung cancer between both cohorts and the general population, and a slight increased risk in the Camp Lejeune cohort versus the Camp Pendleton cohort, although all of these differences were also not statistically significant. The Veteran’s total time at Camp Lejeune was 531 days or just under 18 months. Thus, he was exposed to Camp Lejeune contaminated water for a little less than the time of the shorter of these study groups. Neither of the studies showed a statistically significant increase in lung cancer after having been at Camp Lejeune; therefore, one would expect no such effect in the Veteran. The Institute of Medicine conducted an extensive review of the literature, which looked at solvent exposure and an increased risk of various health effects. The Committee report states, "The committee concludes, from its assessment of the epidemiologic literature, that there is inadequate/insufficient evidence to determine whether an association exists between chronic exposure to solvents under review, other than tetrachloroethylene and dry-cleaning solvents, and lung cancer.” The explanation given in the text for this exception, is because some members of the committee felt that there were enough findings to support a conclusion of limited/suggestive evidence. This split committee decision, in light of outcomes of the papers which they reviewed, and the preponderance of the literature, does not indicate that the likelihood of there being a relationship between PERC exposure and lung cancer rises to the level of 'at least as likely as not.' Lung cancer is the second most common cancer (not counting skin cancer) in both men and women. The most common type of lung cancer is non-small cell lung cancer (NSCLC) which accounts for 85 percent to 90 percent of lung cancer in the United States. It was estimated that in the United States in 2015 there would be almost a quarter of a million new cases of lung cancer diagnosed. Lung cancer causes more than 25 percent of all cancer deaths and accounts for more deaths than colon, breast and prostate cancer combined. Tobacco smoke is the number one risk factor for developing lung cancer and is believed to cause more than three quarters of all lung cancer deaths. The risk of lung cancer in smokers relative to non-smokers is in the order of over 20 fold. The greater the length and quantity of smoking, the greater the cancer risk. Former smokers continue to have an elevated risk for lung cancer years after quitting. The risk doesn't begin to decrease until 5 years of smoking cessation. The cumulative lung cancer risk among heavy smokers may be as high as 30 percent, compared with a lifetime risk of lung cancer of 1 percent or less in never smokers. Cigar smoking is almost as likely to cause lung cancer as cigarette smoking. The examiner stated that there were no clinical records submitted for review that indicated whether or not the Veteran is or was a smoker, or otherwise a tobacco user. Secondhand smoke has also been shown to be a significant risk in developing lung cancer. A 2014 pooled analysis of 18 case-control studies found that among never smokers, the odds ratios (OR) comparing those ever exposed to secondhand smoke with those never exposed was 1.31 (95 percent CI: 1.17-1.45) for all cell types combined, and 1.26 (95 percent CI: 1.10-1.44) for adenocarcinoma. The estimated excess risk of lung cancer for never smokers married to smokers has been reported as 23 to 27 percent. A more recent study reported that passive smoking during childhood increased lung cancer risk in adulthood by 3.6 fold. No records were submitted for review that addressed whether the Veteran had any significant exposure to secondhand smoke. The Mayo Clinic and others identify exposure to radon gas and asbestos as the next two most significant risk factors for developing lung cancer. Diesel exhaust, air pollution, radiation therapy, arsenic in drinking water, and personal or family history of lung cancer have all been shown to be additional risk factors for developing lung cancer. There are also many people that develop lung cancer that have never smoked at all; in fact, a small portion of lung cancers occur in individuals who have no identifiable risk factors. The examiner observed that no medical records were made available for review that addressed the Veteran’s occupation(s), occupational setting(s), prior medical history, family medical history, etc. In the development of a list of Camp Lejeune contaminated water presumptive conditions, VA undertook in 2016 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. This process involved a comprehensive analysis of several hazard evaluations on the chemicals of interest conducted by multiple bodies of scientific experts. Starting with the findings of the 2009 National Research Council (NRC) study and with additional scientific data from Environmental Protection Agency's Integrated Risk Information System (EPA/IRIS), the National Institute of Health's National Toxicology Program (NIH/NTP), the World Health Organization's International Agency for Research on Cancer (WHO/IARC), and the National Academies of Sciences' National Research Council and Institute of Medicine (NAS/NRC/IOM) were analyzed to determine whether available scientific evidence was sufficient to support a presumption of service connection for any health conditions as a result of exposure to the chemicals found in the contaminated drinking water at Camp Lejeune. An extensive list of conditions was reviewed. VA concluded that there was insufficient evidence to establish presumptions of service connection for any condition other than those published and adopted into law in March 2017, which does not include lung cancer. VA has no information at its disposal to define the specific hazardous exposure any individual received, which could assist in determining who in the veteran population was or would be at an increased risk of suffering adverse health effects related to their service at Camp Lejeune. The examiner also noted that the Veteran was a Caucasian male who was diagnosed with lung cancer in his early 50’s, more than 30 years after being exposed to CLCW for less than 1.5 years. The examiner cited to the absence of scientific evidence of solvent exposure being identified as a risk factor for the development of lung cancer, the absence of any study findings of a statistically significant increased incidence of lung cancer developing in individuals exposed to the water at Camp Lejeune, the relatively short time that the Veteran was at Camp Lejeune, the more than 30 year gap between the end of the Camp Lejeune contaminated water exposure and the cancer diagnosis, and the total absence of any risk factor information being submitted for review before opining that the Veteran’s lung cancer was not due to or related to his exposure to Camp Lejeune contaminated water. Following this opinion, a July 2019 VA treatment record noted under the Veteran's social history that he was a non-smoker with no history of drug or alcohol use. The record also indicated that he was employed as a court officer. Another medical opinion was provided by Dr. K., PhD, MD, and a professor of radiation oncology, in July 2020. Dr. K. indicated that he had reviewed the Veteran's relevant records and was aware of the length of his service at Camp Lejeune from January 1984 to July 1985 as well as the fact that the Veteran was initially diagnosed with lung cancer in 2017. Dr. K. explained that the most common risk factors for lung cancers included smoking, radon, asbestos, inhaled environmental chemicals or minerals (such as arsenic, beryllium, cadmium, silica, vinyl chloride, nickel compounds, chromium compounds, mustard gas, and chloromethyl ethers), and a positive family history. However, Dr. K. noted that the Veteran did not have any single personal risk factor for lung cancer. Dr. K. highlighted that the Veteran was a never-smoker, he did not have a family history of lung cancer or other cancer, and he had no known exposure to carcinogens other than those at Camp Lejeune. Dr. K. highlighted the fact that the Veteran's post-service employment was as a court officer. The carcinogens at Camp Lejeune included TCE, PCE, Benzene, and Vinyl Chloride; and epidemiologic studies showed a significantly increased risk of lung cancer death for those stationed at Camp Lejeune as compared to Camp Pendleton (which had no water contamination). Multiple epidemiologic studies regarding PCE consistently showed an increased risk of lung cancer for those occupationally exposed. The Institute of Medicine ranked PCE as having suggestive evidence in causing lung cancer. Dr. K. found that the fact that the Veteran's diagnosis in his early 50's, approximately 18 years younger than the average age for lung cancer, was a factor that supported concluding that he was exposed to aggressive carcinogens. Dr. K. further noted that the typical latency of lung cancer was known to be a minimum of 15 years, and it could range up to 40 years. As such, the latency of a little more than 30 years between the time of the Veteran’s exposure to contaminated water at Camp Lejeune and post-service diagnosis in 2017 conformed with the known latency of carcinogen-caused lung cancer. Dr. K. additionally acknowledged the Veteran's May 1985 report from the STRs that he might have been exposed to asbestos prior to service as is father worked in a compound containing asbestos. However, Dr. K. found that this report did not change his conclusion and did not negate the competing cause of the Veteran's exposure to Camp Lejeune contaminated water carcinogens while in the military. Dr. K. also stated that he completely disagreed with the June 2018 VA examiner's opinion partly due to his finding that the examiner misrepresented the epidemiologic literature by indicating that there were no studies linking lung cancer to Camp Lejeune contaminated water. Dr. K. also disagreed with the examiner's conclusion that the period of latency was too long, and Dr. K. indicated that the examiner's suggestion that the Veteran's period of service at Camp Lejeune was too short conflicts with the fact that the period was exactly the average upon which the epidemiologic evidence for Camp Lejeune contaminated water-linked cancers were based. In consideration of the absence of any single risk factor, and in the context of the Veteran’s known exposure to carcinogens and the medical and scientific evidence, Dr. K. stated that he was able to opine with a high degree of confidence that the Veteran's lung cancer was at least as likely as not caused by the carcinogens at Camp Lejeune. Dr. K. noted that a landmark study by Bove in 2014 regarding the mortality of Marine and Navy personnel who began service within the 1975 to 1985 timeframe and were stationed at Camp Lejeune versus Camp Pendleton with conditions of uncontaminated water was based on an average duration of 18 months of service that was equivalent to the Veteran's length of service at Camp Lejeune. Dr. K. detailed the study’s statistical findings specific to TCE, PCE, Benzene, and vinyl chloride; summarizing that exposure to each carcinogen was associated with statistically higher rates of death from lung cancer. Epidemiologic studies in the last decade also consistently show PCE to be linked with a higher risk of lung cancers. Dr. K. then highlighted studies from 2013 and 2014 that supported this finding. After considering the opinions of the June 2018 VA examiner and Dr. K., the Board finds that Dr. K.’s opinion has greater probative value. Although the June 2018 VA examiner provided a rationale and cited to medical articles in support of the negative conclusion, the examiner admitted that he was unable to consider whether the Veteran had any relevant risk factors for lung cancer apart from his exposure to contaminated water at Camp Lejeune as the record at the time of the opinion did not include this information. In contrast, Dr. K. considered the Veteran’s potential risk factors in addition to providing a full rationale supported by medical literature that served as counterpoint to the specific conclusions reached by the June 2018 VA examiner. Consequently, the weight of the evidence supports finding that the Veteran's lung cancer is at least as likely as not related to his exposure to contaminated water at Camp Lejeune during active service. 38 C.F.R. §§ 3.102, 3.303. Entitlement to service connection for lung cancer is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.