Citation Nr: 21024850 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-67 259 DATE: April 26, 2021 ORDER Service connection for right lung cancer, to include as due to exposure to contaminated water at Camp Lejeune and herbicides, is denied. Service connection for a heart disability, to include as due to exposure to contaminated water at Camp Lejeune and herbicides, is denied. FINDINGS OF FACT 1. Right lung cancer was not present in service or for several years thereafter. It is not otherwise shown to be related to service, to include as due to exposure to contaminated water at Camp Lejeune or herbicide exposure. 2. A heart disability was not present in service or for several years thereafter. It is not otherwise shown to be related to service, to include as due to exposure to contaminated water at Camp Lejeune, or as due to exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for service connection for right lung cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1967. In May 2020, the Board remanded the case for further development. The case has been returned to the Board for further appellate action. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). A veteran, who served at Camp Lejeune for at least 30 days during the period from August 1953, to December 1987, is presumed to have been exposed to the contaminants in the water supply, unless there is affirmative evidence to the contrary. 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. 38 C.F.R. § 3.307(a)(7). The following diseases are considered service-connected in exposed Veterans even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): 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). VA laws and regulations provide that if a veteran was exposed to an herbicide agent during service, certain listed diseases, including coronary artery disease (CAD), are presumed to be related to that herbicide exposure, and absent affirmative evidence to the contrary, service connection is granted on a presumptive basis. 38 U.S.C. § 1116(a)(1); 38C.F.R. §3.309(e). A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to an herbicide agent. 38U.S.C. §1116 (f); 38C.F.R. §3.307 (a)(6)(iii). VA initially interpreted the applicable regulation to mean that the presumption of service connection applies to those service members who physically set foot in Vietnam. See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008). More recently, VA expanded the presumption of in-service herbicide exposure to include service in the 12 nautical mile offshore waters of the Republic of Vietnam. See 38U.S.C. §1116 A (effective January 1, 2020). VA has instituted procedures for verifying exposure to herbicide agents in locations other than the Republic of Vietnam or along the DMZ in Korea. Such procedures include: (1) asking the Veteran for the approximate dates, location, and nature of the alleged exposure; (2) furnishing the Veteran's detailed description of exposure to Compensation Service for confirmation; and (3) requesting a review of the DOD inventory of herbicide agent operations to determine whether herbicide agents were used as alleged. Additionally, the presumption of in-service herbicide exposure is also extended to certain Vietnam era veterans who served in Korea, and certain Air Force veterans who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft that were known to have been used to spray an herbicide agent during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iv), (v). VA has also established procedures for claims based on exposure to Agent Orange through contaminated C-123 aircraft. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including malignant tumors and organic heart disease, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Service connection for a right lung disability. The Veteran contends that his currently diagnosed right lung cancer is related to service, to include his exposure to contaminated drinking water at Camp Lejeune. Service treatment records are silent for any complaints, symptoms, treatment, or diagnoses of lung cancer or any other lung disability. Military personnel records confirm that he served at Camp Lejeune from 1963 to 1967. Therefore, exposure to contaminated water is conceded. Lung cancer is not listed among the conditions subject to presumptive service connection for Camp Lejeune Veterans. As such, service connection is not warranted on a presumptive basis based on exposure to contaminated water at Camp Lejeune. The Veteran also contends that his lung cancer is related to exposure to herbicide agents during active duty. The Veteran has never alleged that he actually stepped foot in Vietnam at any time during active duty service. Rather, he contends that, while stationed in Okinawa, Japan from August 1965 to September 1966, he was exposed second-hand to Agent Orange, while handling and cleaning aircraft and other equipment coming back from Vietnam that was covered with herbicide agent defoliant. See November 2007 application for compensation, November 2007, January 2008 statements in support of claim, June 2017 notice of disagreement (NOD), June 2017 statement in support of claim, and December 2017 VA Form 9. The Board finds that exposure to herbicide agents, such as Agent Orange, cannot be conceded in this Veteran's case. A VA Memorandum (Memo) of Formal Finding on a Lack of Information Required to Verify or Confirm Vietnam in-country Service or Other Means of Alleged Exposure was submitted in March 2017. The Memo indicates that the information required to verify or claim Vietnam in-country service or other means of alleged exposure is insufficient to send to the JSRRC and/or insufficient to research the case any further to benefit the Veteran. Although requested to do so, the Veteran has not submitted specific evidence of his alleged exposure to herbicide agents while stationed in Okinawa. Furthermore, a review of Department of Defense (DOD) documentation does not show any use, testing or storage of tactical herbicides, such as Agent Orange, at any location in Okinawa. Additionally, the DOD monographs do not identify Okinawa as being associated with tactical herbicides. Furthermore, the memo noted that according to VA procedures, there is no presumption of secondary exposure to herbicides based on being near or working on an aircraft that flew over Vietnam or handled equipment that was once used in Vietnam. Accordingly, no verification was found regarding the Veteran's claimed exposure to herbicides. The Board notes further that the Veteran is not shown to have regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. In support of his claim, the Veteran has submitted articles discussing other Veterans who were found to be exposed to herbicide agents stored in Okinawa in 1981 and Air Force Reservists who were found to be exposed to herbicide agents while serving on C-123 Provider aircraft used to spray herbicide agents in Vietnam. The Board notes that the specific circumstances of the Veterans discussed in the articles do not apply to the Veteran in this case. The evidence does not show, and he does not claim to have been exposed to herbicide agents, such as Agent Orange, actually stored in Okinawa, and, as noted above, he was never an Air Force Reservist serving on C-123 Provider aircraft. Based upon a review of all the evidence noted above, the Board finds that that the Veteran is not otherwise shown to have been actually exposed to herbicide agents during active service in Okinawa. However, a Veteran may still establish service connection on a direct basis, if the relevant requirements are met. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Veteran has provided no medical or scientific evidence to support his assertion. In this regard, post-service treatment records indicate that the Veteran was diagnosed with right lung cancer in 2015, more than 45 years after service. See VA treatment records from Erie VA Medical Center. These records do not indicate that the currently diagnosed right lung cancer is related to the Veteran's service. A November 2016 VA examiner opined that the Veteran’s lung cancer was less likely as not caused by or a result of his exposure to contaminated water at Camp Lejeune. The examiner noted, among other things, that statistically significant data has not been produced in the medical-scientific literature to demonstrate a causal association between exposure to the solvents/chemicals at Camp Lejeune in water over relatively limited time durations and the development of lung cancer. The examiner also noted that the Veteran has numerous personal risk factors for developing lung cancer, including his advanced age, gender (male), markedly positive family history of lung cancer (mother and brother), and significant past tobacco use (30 packs a year for several decades) which provided an overwhelming exposure to carcinogens, as noted in the treatment records. A January 2021 VA examiner opined that the Veteran’s right lung cancer was at least as likely as not related to exposure to contaminated water at Camp Lejeune. The examiner explained that exposure to certain chemicals may lead to cancer, and contaminated water was noted at Camp Lejeune between 1953-1987. He noted further that there are several presumptive conditions connected to the toxins in the water, including cancer, and as the Veteran served at Camp Lejeune during the period of time when contaminated water was noted, it is feasible to say that the toxins he was exposed to in the water contributed to his lung cancer. The Board finds this opinion problematic for several reasons. For one, the examiner noted that exposure to certain chemicals may lead to cancer, but only considered the Veteran’s exposure to chemicals in the contaminated water at Camp Lejeune. He did not discuss or consider the Veteran’s exposure to chemicals and carcinogens found in tobacco in cigarettes, which the Veteran was exposed to for a much more significant amount of time (several decades vs. 539 days) than he was exposed to contaminated water at Camp Lejeune. Furthermore, the examiner noted that several presumptive conditions, including cancer, connected to the toxins in the contaminated water at Camp Lejeune. However, he failed to note or apparently consider, that the Veteran’s cancer—lung cancer, has not been found to be related to the toxins found in the contaminated water at Camp Lejeune. For these reasons, the Board finds this portion of the January 2021 VA examiner’s opinion less probative than the other medical opinions of record. A Camp Lejeune contaminated water subject matter expert opined in January 2021 that the Veteran’s diagnosed right lung cancer is less likely as not caused by or related to his exposure to contaminated water at Camp Lejeune, given his history of smoking, history of alcohol use, severe chronic obstructive pulmonary disease (COPD), family history of cardiac disease, gender (male), hypertension, diabetes, chronic kidney disease, older age at diagnosis, exposure period of 539 days with solvent levels below those in noted scientific studies, latency to diagnosis (37 years or greater), and limited scientific evidence linking lung cancer to exposure to contaminated water at Camp Lejeune. In an addendum opinion submitted in February 2021, the January 2021 VA examiner opined that the Veteran’s lung cancer is not directly related to his active military service. The examiner specifically found that, aside from the exposure to contaminated water, there is no other indication that the Veteran’s lung cancer was related to a specific in-service event. In support of her opinion, the examiner noted that there are no records of any in-service complaints regarding his condition, and the Veteran served on active duty from 1963-1967 and was not diagnosed with lung cancer until 2020. The Board notes that the examiner’s finding that the Veteran was not diagnosed with lung cancer until 2020 is inaccurate, as medical evidence of record shows that he was first diagnosed with right lung cancer in December 2015. See VA treatment records from Erie VA Medical Center. However, given that the Veteran was not diagnosed with lung cancer until 2015, as noted above, which is still many decades after service, the Board finds that the examiner’s mistake does not prejudice the adjudication of the Veteran’s claim. Furthermore, the Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given that the lack of evidence of lung cancer or any other lung disorder during active duty or at discharge, and the decades-long gap between service and the first notation of a lung disorder, the Board does not find the Veteran's current accounts of lung cancer since service to be credible. As such, the Board finds that this portion of the February 2021 VA examiner’s opinion is supported, and another examination is not necessary. There is no other medical evidence of record, VA or private, showing that the Veteran's current right lung cancer is related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of lung cancer, the Board notes that this passage of time weighs significantly against a finding of direct service connection for right lung cancer. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board has considered the Veteran's lay statements and his belief that his right lung cancer is related to service, to include exposure to contaminated water at Camp Lejeune and herbicides in Okinawa. Although the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed right lung cancer and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his right lung cancer. 38 C.F.R. § 3.159(a)(1), (2). Given the above, the Board finds that the evidence does not support service connection for a right lung disability, and the claim for service connection on a direct basis is denied. The Board has also considered whether the Veteran's service connection for right lung cancer could be warranted on a presumptive basis as a chronic disease. However, the Veteran's right lung cancer was first diagnosed many years after service and service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). For the reasons and basis stated above, the Board finds that service connection for a right lung disability, on a direct or presumptive basis, is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. 2. Service connection for a heart disability. The Veteran contends that his currently diagnosed heart disability is related to service, to include his exposure to contaminated drinking water at Camp Lejeune and exposure to herbicide agents during active duty in Okinawa, Japan. Service treatment records are silent for any complaints, symptoms, treatment, or diagnoses of a heart disability during active duty or at discharge. Military personnel records confirm that he served at Camp Lejeune from 1963 to 1967. Therefore, exposure to contaminated water is conceded. Unfortunately, none of the Veteran’s currently diagnosed heart disorders, including atrial fibrillation, coronary artery disease, or aortic stenosis, are listed among the conditions subject to presumptive service connection for Camp Lejeune Veterans. As such, service connection is not warranted on a presumptive basis based on exposure to contaminated water at Camp Lejeune. The Veteran also contends that his heart disability is related to exposure to herbicide agents, such as Agent Orange, during active duty. The Veteran has never alleged that he actually stepped foot in Vietnam at any time. Rather, he contends that he was exposed second-hand to Agent Orange, while working on aircraft and other equipment coming from Vietnam, while stationed in Okinawa, Japan. See November 2007 application for compensation, November 2007, January 2008 statements in support of claim, June 2017 notice of disagreement (NOD), June 2017 statement in support of claim, and December 2017 VA Form 9. As noted above, the Board finds that exposure to herbicide agents, such as Agent Orange, cannot be conceded in the Veteran's case. Furthermore, based upon a review of all the evidence noted above, the Board finds that that the Veteran is not otherwise shown to have been actually exposed to herbicide agents during active service in Okinawa. However, a Veteran may still establish service connection on a direct basis, if the relevant requirements are met. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Veteran has provided no medical or scientific evidence to support his assertion. In this regard, post-service treatment records indicate that the Veteran was diagnosed with heart disorders, including atrial fibrillation and coronary artery disease in 2015 and 2016, more than 45 years after service. See VA treatment records from Erie VA Medical Center. He was also diagnosed with aortic stenosis on VA examination in June 2020. These records do not indicate that a currently diagnosed heart disability is related to the Veteran's service. Further, a June 2020 VA examiner opined that the Veteran’s diagnosed cardiovascular conditions (atrial fibrillation and aortic stenosis) were less likely than not incurred in or caused by the exposure to contaminated water with toxins at Camp Lejeune, North Carolina. The rationale was that there is documentation regarding contaminated water with toxins during the years the Veteran served, and several conditions are related to this exposure. However, there is no known connection with atrial fibrillation and toxins. The examiner also noted that there is no specific cause for atrial fibrillation, but several factors that increase the risk per the Cleveland Clinic, and the aortic stenosis is common as individuals age, especially age 75 and older. A Camp Lejeune contaminated water subject matter expert opined in January 2021 that the Veteran’s diagnosed atrial fibrillation and coronary artery disease (CAD) were less likely as not caused by or related to his exposure to contaminated water at Camp Lejeune, given his history of smoking, history of alcohol use, severe chronic obstructive pulmonary disease (COPD), family history of cardiac disease, gender (male), hypertension, diabetes, chronic kidney disease, older age at diagnosis, exposure period of 539 days with solvent levels below those in noted scientific studies, latency to diagnosis (37 years or greater), and limited scientific evidence linking cardiac disease to exposure to contaminated water at Camp Lejeune. The examiner noted that the Agency for Toxic Substances and Disease Registry (ATSDR) website on health effects linked with solvent exposure at Camp Lejeune does not identify atrial fibrillation or coronary artery disease as a reported health problem due to exposure contaminated with benzene, vinyl chloride, TCE and/or PCE. See January 2021 VA medical opinion. There is no contrary medical opinion of record. A February 2021 VA examiner also opined that the Veteran’s heart disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner’s opinion was based on the fact that there was no evidence of any history or findings for an ongoing acute or chronic treatment for a cardiovascular condition at discharge, and the medical evidence does not reveal continuous ongoing treatment or aggravation of an acute or chronic cardiac condition from the time of his discharge until now. There is no contrary medical opinion of record. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given that the lack of evidence of a heart disability at discharge, and the decades-long gap between service and the first notation of a heart disability, the Board does not find the Veteran's current accounts of cardiovascular problems since service to be credible. As such, the Board finds the February 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no other medical evidence of record, VA or private, showing that the Veteran's current heart disability is related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a heart disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a heart disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board has considered the Veteran's lay statements and his sincere belief that his heart disability is related to service. Although the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between a currently diagnosed heart disability and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his heart disability. 38 C.F.R. § 3.159 (a)(1), (2) (2019). Given the above, the Board finds that the evidence does not support service connection for a heart disability, and the claim for service connection on a direct basis is denied. The Board has also considered whether the Veteran's service connection for a heart disability could be warranted on a presumptive basis as a chronic disease. However, the Veteran's heart disorders were first diagnosed many years after service and service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307 (a)(3); 3.309 (a). For the reasons and basis stated above, the Board finds that service connection for a heart disability, on a direct or presumptive basis, is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.