Citation Nr: 21025007 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-22 888 DATE: April 27, 2021 ORDER Service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Service connection for a left knee disability, to include as secondary to a service-connected left ankle disability, is granted. FINDINGS OF FACT 1. The Veteran had at least 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. 2. It is less likely than not, that the Veteran’s prostate cancer was incurred in or otherwise caused by his active military service, to include as a result of his presumed exposure to contaminated water while stationed at Camp Lejeune. 3. Resolving reasonable doubt in the Veteran’s favor, the left knee disability was caused by his service-connected left ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.6. 2. The criteria for service connection for a left knee disability, to include as secondary to the service-connected left ankle disability, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April to September 1976 and the United States Marine Corps from October 1978 to March 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2014 and January 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and June 2020, the Board remanded this matter for further development. The case has been returned to the Board at this time for further appellate review. The requested development has been completed and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term “chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). 1. Service connection for prostate cancer The Veteran claimed his exposure to contaminated water while stationed in Camp Lejeune. According to the Veteran’s personnel record, the he was stationed at Camp Lejeune from January 31, 1979 to June 24, 1979. 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). Under 38 C.F.R. § 3.309 (f) “disease associated with exposure to contaminants in the water supply at Camp Lejeune,” 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. The Veteran’s service treatment records are absent of any complaints, diagnosis, or treatment of prostate cancer or any other genitourinary disorder. The Board concedes that the Veteran has a current diagnosis of prostate cancer with onset in 2005. However, while the post-service treatment records reflect that the Veteran was diagnosed and treated with prostate cancer, an etiological opinion was not included. The Veteran submitted an article, updated in January 2014, from the Agency for Toxic Substances and Disease Registry (ATSDR) which indicated that the reported health problems in people of all ages from working with trichloroethylene (TCE) and/or tetrachloroethylene (PCE) included prostate cancer. The same article was updated in April 2017 where the ATSDR stated that the health effects with positive findings in at least one study that evaluated the exposure to TCE and/or PCE included prostate cancer. In June 2020, the Board remanded the claim to obtain an opinion as to the likely etiology of his prostate cancer. In June 2020, a VA examiner determined that the Veteran’s prostate cancer was less likely as not (less than 50/50 probability) caused or the result of his exposure to contaminated water at Camp Lejeune. The VA examiner explained that the National Academy of Sciences, National Research Council, published its “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects” in 2009, which included a review of studies addressing exposure to TCE and PCE as well as a mixture of the two. Here, fourteen disease conditions were identified as having limited/suggestive evidence of an associated with TCE, PCE, or a solvent mixture exposure, but prostate cancer was not one of them. The VA examiner stated that a review of multiple literature sources, including ATSDR, did not return any significant mention or correlation between exposure to contaminated water at Camp Lejeune and the diagnosis of prostate cancer. The VA examiner noted that the ATSDR concluded that there was below equipoise evidence for causation for exposure to contaminated water at Camp Lejeune and prostate cancer. Rather, based on his research of prostate cancer, the VA examiner determined that the Veteran had risk factors for the increased risk of developing prostate cancer which included the Veteran’s age, being African American, history of hypertension, obesity, and smoking history were most likely to be related to his prostate cancer diagnosis. The VA examiner thoroughly explained and cited to research in support of his conclusions for each of the identified risk factor. In contrast, the VA examiner acknowledged that the Veteran was potentially exposed to small amounts of benzene vinyl chloride, TCE, and PCE for approximately 162 days at Camp Lejeune that dated back to 1979, but did not receive a diagnosis of prostate cancer until approximately 26 years post exposure to camp Lejeune contaminated water. The VA examiner noted that the reviewed medical literature and cited journals were not consistent with the possibility of developing prostate cancer 26 years post-exposure. Another VA examination and opinion were obtained in September 2020 where upon physical examination, a review of the evidence of record, and the Veteran’s lay statements, the VA examiner determined it was less likely than not that Veteran’s prostate cancer was incurred in or caused by the claim in-service injury, event, or illness. The Board, however, finds this VA opinion inadequate as it failed to consider and address the medical literature of record and provide an opinion regarding the likely etiology of the Veteran’s prostate cancer. The Board acknowledges and is sympathetic to the Veteran’s assertions that his prostate cancer was caused by drinking contaminated water while serving at Camp Lejeune. However, this claim cannot be granted. Initially, the post active-duty service medical evidence shows that the Veteran’s prostate cancer was diagnosed over twenty years after the Veteran’s active duty service. There is no competent evidence to show that prostate cancer was manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. The Board therefore finds that the preponderance of the evidence is against the claims on a presumptive basis (not involving exposure to contaminated water at Camp Lejeune), and that the claim must be denied. Id. Additionally, the Veteran is shown to have had at least 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. However, prostate cancer is not specifically recognized by VA as residuals of contaminated water at Camp Lejeune pursuant to 38 U.S.C. § 1710 and 38 C.F.R. § 17.400. In addition, there is no medical evidence or opinion of record to show, or even suggest, direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The only competent opinions of record are the VA opinions, all of which weigh against the claim. Accordingly, the claim must be denied on this basis. The Board has also considered the medical articles submitted by the Veteran, to include the study by the ATSDR. This article stated that there were positive findings in at least one study that evaluated exposure to TCE and/or PCE. The Court has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In the present case, the treatise evidence submitted by the Veteran is not accompanied by the opinion of any medical expert. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The June 2020 VA opinion shows that the VA examiner thoroughly reviewed this evidence, including the studies, but concluded that this evidence was not sufficiently persuasive to link the Veteran’s prostate cancer to his presumed in-service exposures. In summary, the treatise evidence that has been submitted is general in nature and does not reasonably approximate the facts and circumstances of the Veteran’s case. The Board therefore concludes that this information is insufficiently probative to warrant a grant of this claim on any basis. Id. With regard to the Veteran’s own contentions, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the issues of diagnosis and etiology fall outside of the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s service treatment reports and the post-service medical records have been discussed. There is no competent opinion of record in favor of this claim. The Veteran’s prostate cancer was not shown for many years following separation from active duty service. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran’s contentions to the effect that this prostate cancer is due to his military service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). Accordingly, service connection for prostate cancer is denied. 2. Service connection for a left knee disability, to include as secondary to a service-connected left ankle disability A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Additionally, when aggravation of a Veteran’s nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his left knee disability resulted from his military service. Specifically, at the August 2020 VA examination, the Veteran stated that while he did not sustain an injury, his left knee disability stemmed from the strain of regular military duties. In June 2020, the Board remanded this issue for additional development as it was determined that the February 2020 VA examination report and the April 2020 addendum opinion were inadequate (the Veteran’s reports of pain in his kneecaps for four days in December 1978 were not addressed). Furthermore, it was found that the Veteran’s claim for service connection for a left knee disability had included the theory of service connection secondary to the Veteran’s left ankle disability. As service connection for a left ankle disability was granted in April 2020, the Board’s remand included instructions to evaluate any relationship between the Veteran’s service connected ankle disability and his left knee disability. Turning to the evidence of record, the Veteran has a current diagnosis of degenerative arthritis, chondromalacia patellae, and instability of the left knee. In August 2020, upon physical examination, a review of the evidence of record, and the Veteran’s lay statements, the VA examiner determined that while it was less likely than not that the left knee disability was incurred in or caused by the claim in-service injury, event or illness, it was at least as likely as not that the left knee disability was proximately due to, or the result of, the Veteran’s service connected left ankle sprain. The VA examiner explained that the current severity of the left ankle sprain “warrants by proximity, association of the left knee disability.” The VA examiner stated the Veteran’s left knee disability began subsequent to, and is a direct result of, the left ankle disability. The VA examiner noted that this conclusion was supported by medical literature, thereby establishing a nexus between the two disabilities. The VA examiner further explained: When the individual gait is altered, a disruption in the kinetic chain occurs. A kinetic chain is the notion that these joints and segments have an effect on one another during movement. When one is in motion, it creates a chain of events that affects the movement of neighboring joints and segments. The five major check points for the kinetic chain include, from bottom to top, the feet and ankles, the knees, the hip and pelvis, the shoulders, and the head. These are the linking points, or checkpoints, for the kinetic chain. Dysfunction within the kinetic chain where a muscle(s) is recruited improperly relative to optimal firing patterns within the kinetic chain. Resulting in potential overuse of the specified muscle(s), inhibition of the muscles antagonist, poor motor control, and improper functional movement patterns… The hip, knee, and ankle joints, together, comprise the lower extremity kinetic chain. Change in gait alters kinetic chain, with change in gait ankle joint impacts knee joint, causing increased pain in knee joint. A gait cycle consists of both the open and closed kinematic chains that frequently alternate during movement of the lower limbs. A medical opinion was subsequently obtained which reached the opposite conclusion. However, after comparing the two opinions, the Board does not find the rationale of the negative opinion to be so compelling as to outweigh the conclusion of the earlier examiner. As such, the weight of the evidence is in at least relative equipoise. Therefore, service connection for a left knee disability is granted on a secondary basis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.