Citation Nr: 21026190 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 13-11 864 DATE: April 30, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune is denied. FINDING OF FACT The Veteran’s colon cancer did not manifest during active service; within one year of his separation from active service; and is not otherwise related to his active service or his presumed exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to June 1971, to include service at Camp Lejeune. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was properly perfected. See December 2011 Notice of Disagreement; March 2013 Statement of the Case; and April 2013 Substantive Appeal (VA Form 9). This matter was previously before the Board in September 2017, when the Board issued a decision denying entitlement to service connection for colon cancer. This decision was appealed to the United States Court of Appeals for Veterans Claims, which issued an order granting an Amended Joint Partial Motion for Remand, which vacated the Board’s September 2017 denial of entitlement to service connection for colon cancer and remanded the claim to the Board for additional development and consideration. In October 2018 and November 2020 decisions, the Board remanded this matter for additional development. Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, cancerous tumors, and diabetes to a degree of 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. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to “chronic” diseases listed under 38 C.F.R. § 3.309 (a), such as arthritis, cancerous tumors, and diabetes. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. If a Veteran served in Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 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). Entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune As noted above, the Veteran is entitled to be presumed to have been exposed to the contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307 (a)(7)(iii). However, colon cancer is not on the list of diseases presumptively linked, under the law, to such exposure. 38 C.F.R. § 3.309 (f). Therefore, the Veteran may establish entitlement to service connection through evidence showing direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board’s analysis below will involve an examination of the Veteran’s claim based on direct causation. Again, the Veteran seeks service connection for colon cancer. Specifically, the Veteran asserts that his colon cancer is the result of his exposure to contaminated water while serving at Camp Lejeune. The Veteran’s personnel records show that the Veteran was stationed in Camp Lejeune from January 1971 to June 1971. The question for the Board, in this case, is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent for complaints, diagnosis, or treatment related to colon cancer. A March 1967 Report of Medical Examination revealed a normal clinical evaluation of the abdomen and viscera, anus and rectum, and genitourinary systems. In the March 1967 Report of Medical History, the Veteran denied stomach, liver, or intestinal problems; frequent indigestion; and tumor, growth, cyst, or cancer. A June 1971 Report of Medical Examination revealed a normal clinical evaluation of the abdomen and viscera, anus and rectum, and genitourinary systems. Turning to post-service records, a November 2010 VA treatment record revealed that the Veteran had blood in his stool. At the time of treatment, the Veteran stated that he had never had a colonoscopy performed. A December 2010 VA treatment record reveals that the Veteran presented with FIT (fecal immunochemical test) positive stools. At the time of treatment, the Veteran denied a family history of colon cancer. The Veteran also reported having not had a colonoscopy. The Veteran denied any melena, bright red rectal bleeding, change in bowel habits, or abdominal pain. There was also a notation that the “patient does not smoke or drink.” Impressions revealed, in relevant part, FIT positive; colon neoplasm was ruled out. The treatment plan included a colonoscopy. A January 2011 VA treatment note reveals that the Veteran had a colonoscopy significant for multiple tubular adenomas and that one of the polyps that was removed was positive for adenocarcinoma. At the time of treatment, the Veteran reported that he did not currently drink or smoke and that he had a negative history for colon cancer. A January 2013 private treatment revealed, in relevant part, a history of colon cancer. Surveillance colonoscopies in June of 2015, September of 2015, and December of 2018 failed to identify additional cancerous polyps. An April 2018 VA treatment record reveals that the Veteran quit smoking in 1996, but that he previously smoked “203PPD x 30yrs.” A June 2018 VA treatment record also reveals that the Veteran was a heavy smoker and alcohol user thirty years prior. Given the evidence discussed above, the Board concedes the Veteran’s asserted disability, colon cancer, and the Board concedes the Veteran’s exposure to contaminants at Camp Lejeune during his active duty military service; therefore, the Board finds that the first two elements of service connection have been met, a current disability (one diagnosed at any time during the pendency of the appeal) and an in-service occurrence, injury or disease. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, the remaining question for the Board is whether there is a medical nexus between the Veteran’s conceded contaminant exposure at Camp Lejeune and his diagnosed colon cancer. The Veteran was afforded a VA examination in April 2011, at which time the examiner noted that the Veteran had unilateral breast cancer and adenocarcinoma of the colon, status post endoscopic resection, without need for surgery or chemotherapy, asymptomatic, follow up surveillance scheduled. At the time of the examination, the Veteran reported that he had an extensive smoking history. Specifically, he reported that he started smoking at age sixteen and that he smoked a pack of cigarettes a day and quit about fifteen years ago. The examining physician also noted that the Veteran reported to his cancer specialist that he started smoking at age fourteen and smoked up to three packs of cigarettes per day. The Veteran also stated that he stopped abusing alcohol approximately twenty-five years ago. The Veteran reported that he had been diagnosed with colon cancer and denied inhalant exposure or dermal exposure to trichloroethylene or benzene while stationed in Camp Lejeune. The VA examiner opined that the Veteran’s colon cancer was less likely as not caused by or the result of the Veteran’s exposure to contaminated water at Camp Lejeune. The VA examiner explained that the Veteran’s colon polyps were much more likely to be associated with his age and significant smoking history. The examiner also cited that he was unaware of an association between colon cancer and trichloroethylene exposure. In a September 2019 addendum opinion, the examiner opined that it was less likely than not that the Veteran’s colon cancer, which was no longer present, was incurred in active duty, to include as due to any contaminant that he might have been exposed to during his limited tenure at Camp Lejeune. The examiner explained that risk factors for colorectal cancer are older age, male sex, a diet rich in red meat and processed foods, smoking, obesity, and a sedentary lifestyle (in patients without a history of inflammatory bowel disease or a family history of colon polyp syndrome). The examiner also cited that, of such risk factors, the Veteran was sixty years old when his cancer was detected, male, a former smoker, obese, and that he had never had a colonoscopy prior to the endoscopy that identified a cancerous polyp. In a December 2020 addendum opinion, the examiner opined that it was less likely than not that the Veteran’s colon cancer was caused by or a result of his exposure to contaminated water at Camp Lejeune. The examiner indicated that a thorough review of the claims file was reviewed, to include the prior remand and entire e-folder of records. In support of the opinion, the examiner cited to a vast array of medical literature. The examiner cited to the National Academy of Sciences, National Research Council report which addressed exposure to Trichloroethylene (TCE), and Tetrachloroethylene or Perchloroethylene (PCE), as well as a mixture of two and a discussion of disease manifestations potentially associated with such exposure. The examiner also reported that fourteen disease conditions were identified as having a limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure; however, colon cancer was not one of such diseases. The examiner also cited to the Institute of Medicine’s five cohort studies which examined the association between TCE exposure and colon cancer. One of the studies showed a positive association between TCE exposure and mortality and incidence, but there was evidence of an exposure-response relationship only between years of work and incidence. The results of the other studies were mixed, and IOM was unable to reach a consensus opinion about chronic exposure to TCE and colon cancer. Two other case-control studies, one relating to drycleaners and the other relating to contaminated water drinking at Cape Cod, showed that there was increased risk but no evidence of an exposure-response relationship. The examiner noted that the numbers were small and the diseases were not well defined. And, as such, IOM concluded that there was inadequate/insufficient evidence to determine whether an association exists between chronic exposure and colon cancer. The examiner also cited to updated literature and occupational-cohort studies on TCE and colon cancer. However, such studies resulted in the position that there was still inadequate/insufficient evidence to determine whether an association exists between chronic exposure to TCE or PCE and colon cancer. The examiner stated that the Veteran was potentially exposed to small amounts of benzene, vinyl chloride, TCE, and PCE while stationed at Camp Lejeune and that he was not diagnosed with colon cancer until 2011, over four decades from the time of exposure. The examiner determine that such delayed onset was not consistent with the noted literature pertaining to Camp Lejeune exposure. Specifically, the examiner determined that if the Veteran’s exposure to contaminated water at Camp Lejeune had been significant, it would have been expected that the colon cancer would have formed at an earlier juncture in the Veteran’s life, rather than decades later. The examiner also cited to the Agency for Toxic Substances and Disease Registry (TSDR), which reviewed the health effects linked with TCE and PCE, benzene, and vinyl chloride exposure at Camp Lejeune, North Carolina. Specifically, health effects with sufficient evidence for causation for vinyl chloride included liver cancer. Health effects with sufficient evidence for causation for benzene included leukemias and non-Hodgkin’s lymphoma. Health effects with sufficient evidence for causation for TCE included kidney cancer, non-Hodgkin’s lymphoma, and cardiac defects. Health effects with sufficient evidence for causation for PCE included bladder cancer. Health effects with evidence that is equipoise and above for causation for PCE included non-Hodgkin’s lymphoma and end-stage renal disease. Health effects with evidence that is equipoise and above for causation for benzene included multiple myeloma. It was noted that TCE and/or PCE was only noted to be associated in one study as it pertained to lung cancer. The examiner also cited to the Veteran’s multiple risk factors including obesity, poor diet, a history of smoking and alcohol use, and older age at the time of diagnosis. The examiner determined that these risk factors had a stronger association between potential exposure and the development of colon cancer and adenocarcinoma polyps than the risk noted for potential exposure to contaminated water at Camp Lejeune. The examiner also explained that the Center for Disease Control and Prevention determined that the risk of colorectal cancer increases with age. Other likely factors included a lack of regular physical activity; a diet low in fruit and vegetables; a low-fiber diet and high-fat diet; overweight and obesity; alcohol consumption; tobacco use; and being of the male sex. The Board finds the December 2020 addendum opinion to be highly probative, credible, and persuasive because it involved a review of the Veteran’s medical history and provided credible and competent explanations. Additionally, the Board finds the opinion to be probative because it included a detailed rationale, supported by competent scientific and medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). There are no medical opinions of record which conflict with the findings of the December 2020 addendum opinion. Similarly, there is no competent medical evidence of record that establishes a causal connection between the Veteran’s colon cancer and active duty military service, to include his exposure to water contaminants at Camp Lejeune. Evidence in support of the Veteran’s claim include his lay statements that his colon cancer is related to his service at Camp Lejeune. The Board notes however that Veteran is not competent to provide a diagnosis in this case or determine that any symptoms were manifestations of colon cancer. The issue is medically complex, as it requires medical knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In conclusion, the Board finds the preponderance of the evidence weighs against this claim. In summary, the weight of the evidence preponderates against the claim of a relationship between the Veteran’s colon cancer and the presumed exposure to contaminated water at Camp Lejeune. Thus, service connection for colon cancer is not warranted. 38 C.F.R. §§ 3.303, 3.309. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hanson, 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.