Citation Nr: 21026770 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 20-08 313A DATE: May 3, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to a nonservice-connected pension is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that colon cancer began during active service, is otherwise related to an in-service injury or disease or within one year after service, or to include exposure to contaminated water at Camp Lejeune. 2. The Veteran did not serve on active military, naval, or air service for 90 days or more during a period of war. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for colon cancer to include as due to exposure to contaminated water at Camp Lejeune are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for basic eligibility for nonservice-connected pension have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.2, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from April 1961 to April 1964. Military personnel records confirm that during part of his service, the Veteran was stationed at Camp Lejeune, North Carolina. The Department of Veterans Affairs (VA) has recognized the Veteran's exposure to contaminated water at Camp Lejeune. Military personnel records indicate that the Veteran was stationed at Camp Lejeune between August 1962 and April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA), Agency of Original Jurisdiction (AOJ). The issue of entitlement to service connection for throat cancer, including as due to contaminated water at Camp Lejeune, was initially denied in a November 2013 rating decision by the AOJ. In a January 2014 statement, the Veteran, through his attorney, disagreed with the rating denial, inclusive of entitlement to a nonservice- connected pension. A statement of the case (SOC) was issued in May 2014 and a timely appeal of those issues was received at VA in June 2014. In August 2020, the Board denied entitlement to service connection for throat cancer and remanded the claims decided herein for further development. In the August 2020 remand, the AOJ was directed to make two attempts to obtain private treatment records for treatment of the Veteran's colon cancer. In August 2020, the AOJ sent the Veteran a development letter, requesting that he complete and return VA Form 21-4142a and VA Form 21-41142 authorization requests. The forms the Veteran sent in October 2020 were determined to be illegible. In January 2021, another development letter was sent to the Veteran to which no response was received. While VA is obligated to assist a claimant in obtaining evidence necessary to substantiate his or her claim, 38 U.S.C. § 5103A (a), "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Veteran did not respond to the January 2021 request for relevant information regarding his private medical treatment for colon cancer. Thus, the VA has satisfied its duty to assist. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). Service connection may 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. § 3.307 (a)(7). 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. 38 C.F.R. § 3.309 (f). There are two issues to determine if service connection is warranted in these claims on a presumptive basis based on exposure to contaminated water: Whether the Veteran had no less than 30 days of service at Camp Lejeune and whether his throat cancer is due to an enumerated disease associated with exposure to contaminated water at Camp Lejeune. As noted above, it has been documented that the Veteran served in the United States Marine Corps at Camp Lejeune between August 1962 and April 1964. The Board finds that the Veteran served at Camp Lejeune for more than 30 days during the relevant period and he is presumed to have been exposed to contaminated water during such service. However, colon cancer is not a disease for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. 38 C.F.R. § 3.309 (f). Therefore, a nexus linking the Veteran's colon cancer and military service cannot be presumed under this law, regardless of the Veteran's exposure to contaminated water during service. Id. Notwithstanding the foregoing presumption provisions for exposure to contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection with proof of direct causation. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for colon cancer The Veteran contends that his colon cancer is due to his active military service, to include to his exposure to contaminated water at Camp Lejeune. Service treatment records (STRs) reflect that the March 1964 separation report of medical examination revealed a normal clinical evaluation for the abdomen and viscera. A May 1964 annual certificate of physical condition reflects that the Veteran selected "tumor, growth, cyst, or cancer." He clarified that a cyst was removed from his right cheek several years back. The Veteran served at Camp LeJeune from July 8, 961 to August 31, 1961 and from August 6, 1962 to April 11, 1964. He reported that from the 1950s until 1985, drinking water from Camp LeJeune has been found to be contaminated with various organic solvents including TCE, PCE, DCE, vinyl chloride, and benzene. He reported that as noted in the VHA medical opinion dated in February 2016 [for throat cancer], research studies have shown an association between TCE and PCE exposure and various forms of cancer. In July 2017, the Veteran submitted an April 1999 research article titled: Mortality study of civilian employees exposed to contaminated water at USMC Base Camp Lejeune: a retrospective study. The article references colon cancer and colon-rectum cancer several times suggestive of a relationship between colon cancer and contaminated water at Camp Lejeune. In October 2017 correspondence from Dr. J.S., he reported that the Veteran's colon cancer was a common cancer. He reported that he cannot definitively state the cause was from drinking contaminated water at Camp Lejeune. He stated that there is a possibility that this was the cause of his cancer, but he cannot give a percentage of certainty. An October 2020 VA examination report reflects that the Veteran has a diagnosis of colon cancer from June 2014. Notably, the examination was conducted via an Acceptable Clinical Evidence (ACE) call. The clinician noted that records were reviewed in conjunction with the examination request. The clinician opined that it is his medical opinion based on review of the claims file and interviewing the Veteran, that he has a diagnosis of colon cancer that is at least as likely as not (50 percent or great probability) incurred in or caused by the digestive condition during service. He reported that a review of the STRs revealed that the Veteran had a normal abdominal examination at separation in 1964. He stated that he found no evidence of the presence of any gastrointestinal conditions during military service that would lead to colon cancer 50 years later. He clarified that the Mortality study notes that they considered a maximum latency time of 20 years for colon cancer to develop. The Veteran's cancer developed 50 years after separation. Thus, their analysis did not apply to this case. Furthermore, he reported that it should be noted that the hazard ration of Camp Lejeune/Camp Pendleton colon cancers was 1.01, which he found was so close to 1.0, that it was not included as a significant finding. He stated that only rectal cancer was included in their summary of significant findings. He reported that because of its limited latency and statistically insignificant hazard ratio, this study does not support a causal relationship with 50 percent or greater probability between Camp Lejeune water exposure and development of colon cancer 50 years later. He reported that the 1999 Environmental Health Perspective article on Massachusetts water also had a limited latency, which was even lower than the Mortality study. They only looked at 11 and 13 years of latency, whereas the Veteran's latency was 50 years. Furthermore, they combined the data for colon-rectum because the "elevated ORs (odds ratios) stemmed mainly from associations with rectal cancer." He reported that they conclude that there is "possibly" an association between PCE exposure and cancer of the colon-rectum. He stated that "possibly" is not 50 percent or greater probability. He stated that this study, because of its short latency and lack of statistically significant evidence, does not support a causal relationship with 50 percent or greater probability between Camp Lejeune water exposure and development of colon cancer 50 years later. Finally, he reported that he reviewed Dr. J.S.'s letter which notes that colon cancer is common and therefore cannot be definitively stated the cause was from drinking contaminated water at Camp Lejeune. He stated that his equivocal statement regarding a possibility does not meet VA criteria for 50 percent or greater probability. An additional October 2020 VA medical opinion was obtained. The clinician found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that the Veteran was diagnosed in 2013 with the claimed condition of colon cancer at the age of 72, 50 years after his last exposure to CLCW. He stated that the Assessment of Evidence for the Drinking Water Contamination at Camp Lejeune and Specific Causes and Other Diseases does not list colon cancer as a condition having an association with exposure to the CLCW substances. He reported that colorectal cancer most commonly affects elderly persons who are 60 years old or older, and more men are affected than women. He reported that the causes of the disease are accumulations of genetic and epigenetic alterations. He stated that likely risk factors include: hereditary syndromes, demographic factors, lifestyle factors, medical history, and history of inflammatory disease. He added that the Veteran is a male (this condition is more likely to occur in males), diagnosed with the claimed condition at 72 years of age (colorectal cancer most commonly affects elderly persons), and had known risk factors (history of smoking, consumption of alcohol, and obesity). He stated that it should also be noted that the Veteran stopped smoking and drinking alcohol in 1985, which is 21 years after his last exposure to CLCW and 29 years prior to the development of the claimed condition. He stated that the known risk factors are more proximal to the disease occurrence than exposure to CLCW by 21 years. The clinician further reported that colon cancer was not related to any exposure to any of the water contaminants present at Camp Lejeune over this remote time period. He stated that the presumption that exposure to the CLCW substances is associated with the development of the claimed condition does not satisfy any of the group of nine principles contained in the Bradford Hill criteria, otherwise known as Hill's criteria for causation, established in 1965 by epidemiologist, which is used in establishing epidemiologic evidence of a causal relationship between a presumed cause and an observed effect and has been widely used in public health research. He included 19 medical references he used in support of his claim. In March 2021, the clinician clarified that the October 21, 2020 medical opinion was inadvertently stated as positive when it should have been stated as negative. He reported that the correct medical opinion is: the Veteran has a diagnosis of colon cancer that is less likely than not incurred in our caused by the digestive condition during service. Upon review of the evidence of record, the Board finds that service connection for colon cancer, to include as due to CLCW exposure, is not warranted. The Board concludes that, while the Veteran has been diagnosed with colon cancer, a type of malignant tumor, which is a chronic disease under 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a), it did not manifest in service and as such, was not chronic in service nor did it manifest to a compensable degree within one year of service. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Colon cancer is first shown more than 50 years after the Veteran's military service. Additionally, based on a review of the available records, his particular expertise, and medical literature, the October 2020 VA medical opinions found that the Veteran's colon cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the clinicians noted the Veteran's statements regarding his colon cancer, as well as the medical treatise he submitted to support his claim, and provided an adequate rationale for the conclusions that the Veteran's disability was not due to service. The clinicians additionally addressed the contention that the colon cancer could be due to the conceded CLCW exposure and explained in detail why there wasn't sufficient information to support that claim. As the clinicians explained the reasons for their conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the Veteran, including through his representative, has opined that his colon disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's contentions as to the etiology of his colon cancer disability relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran's statements are therefore not competent in this regard. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinion of the VA clinicians to be of greater probative weight than the Veteran's more general lay assertions. The Veteran's colon cancer was attributed to gender, age, and lifestyle risk factors. The Board has also considered the medical literature submitted by the Veteran. Medical article and treatise evidence may suffice to establish nexus in instances where "standing alone, [it] 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." Sacks v. West, 11 Vet. App. 314, 317 (1998). However, treatise materials are generally not specific enough to show nexus. Id. Moreover, medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). In this case, regardless of the specificity of the treatise evidence submitted, its probative value is outweighed by the specific, reasoned opinions of the October 2020 VA clinicians who addressed the medical treatise. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning. Cf. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate). For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim of service connection for a left foot disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim of service connection for colon cancer, to include as due to exposure to CLCW. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a nonservice-connected pension The Veteran contends that he is entitled to nonservice-connected pension benefits. VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from non-service-connected disabilities which are not the result of willful misconduct. See 38 U.S.C. § 1521 (a). A veteran meets the service requirement of wartime service if he or she served in the active military, naval, or air service (1) for ninety days or more during a period of war; or served during a period of war and was discharged or released from such service for a service-connected disability; (2) or served in the active military, naval, or air service for a period of ninety consecutive days or more and such period began or ended during a period of war; or (3) served in the active military, naval, or air service for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. See 38 U.S.C. § 1521 (j); 38 C.F.R. § 3.3 (a)(3). The term "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C. § 1501 (4); 38 C.F.R. § 3.2. Most pertinent to this case, the Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. See 38 U.S.C. § 101 (29)(A); 38 C.F.R. § 3.2 (f). In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964 and ending on May 7, 1975. See 38 U.S.C. § 101 (29)(B), (33); 38 C.F.R. § 3.2 (f), (i). As applied to the facts of this case, the term "active duty" means full-time duty in the Armed Forces, other than active duty for training. See 38 U.S.C. § 101 (21)(A). The term "active duty for training" means full-time duty in the Armed Forces performed by Reserves for training purposes. See 38 U.S.C. § 101 (22)(A). The term "active military, naval, or air service" includes active duty; and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101 (24)(A), (B). The threshold issue to address in a pension case is whether the Veteran has the requisite period of wartime service. If that issue is answered in the affirmative, the additional issues of permanent and total disability and net worth and income requirements will then be addressed. However, if the Veteran does not have the requisite wartime service, there is no need to proceed further, or to address any other related issue. Based on a review of the record, the Board finds that the criteria for nonservice-connected pension benefits have not been met, because the Veteran does not have the requisite period of wartime service. See 38 U.S.C. §§ 1501, 1521; 38 C.F.R. §§ 3.2, 3.3. Military personnel records reflect that the Veteran served on active duty with the United States Marine Corps from April 1961 to April 1964. The Veteran does not contend, and the evidence of record does not reflect, service in the Republic of Vietnam. Specifically, his DD-214 confirms that the Veteran did not have any foreign and/or sea service, to include service in Vietnam. As noted above, wartime period for the Vietnam era (for those who did not serve overseas in the Republic of Vietnam) begins August 5, 1964. As the Veteran does not have the requisite service in active military for ninety days or more during a period of war, the claim for nonservice-connected pension benefits must be denied due to the lack of entitlement under the law. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.