Citation Nr: 21028947 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-19 657A DATE: May 12, 2021 ORDER Service connection for a pancreas disorder, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Service connection for diabetes mellitus, to include as secondary to a pancreas disorder, is denied. REMANDED Entitlement to a rating in excess of 20 percent for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran served at U.S. Marine Corps Base Camp Lejeune, North Carolina, from January 1971 to May 1971 and March 1973 to November 1974 and likely was exposed to contaminated water at this facility at that time. 2. The preponderance of the evidence is against finding that the Veteran's pancreas disorder began during active service or is otherwise related to an in-service injury or disease, including exposure to contaminated water at Camp Lejeune. 3. There exists no service-connected disability upon which secondary service connection for diabetes mellitus may be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for a pancreas disorder, to include as due to exposure to contaminated drinking water at Camp Lejeune, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus, to include as secondary to pancreatic cancer, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1970 to November 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from November 2011, March 2012, and August 2019 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board videoconference hearing. The transcript of the hearing has been associated with the record. Service Connection Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Pancreas disorder. The Veteran contends that his exposure to contaminated water at Camp Lejeune caused pancreatic cancer or a carcinoid tumor in his pancreas. Alternatively, he contends that the carcinoid tumor was misdiagnosed, and it had started in the kidneys, and then it moved to the pancreas. The Veteran provided a medical article to support his contention that his pancreas disorder is the result of exposure to contaminated water at Camp Lejeune. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminated water at Camp Lejeune if a veteran, former reservist, or member of the National Guard shows: (1) that he or she served at Camp Lejeune for no less than 30 consecutive or non-consecutive days between August 1, 1953, and December 31, 1987; (2) that he or she has been diagnosed with a disease associated with exposure to contaminants in the water supply at Camp Lejeune as enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). This presumption may also be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (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. 38 C.F.R. § 3.309(f). As pancreatic cancer or disorders of the pancreas are not one of the diseases set forth in 38 C.F.R. § 3.309(f), a presumption based on in-service exposure to contaminated water at Camp Lejeune is not warranted. However, the Board will consider whether there is evidence of actual direct causation of pancreatic cancer due to contaminated water exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). There is no dispute that the Veteran was exposed to the contaminated water supply at Camp Lejeune by virtue of his service at the United States Marine Corps Base in Camp Lejeune during the presumptive period. His service treatment records show no complaints of, or treatment for, any pancreas-related disorders. His separation examination, dated November 1974, established the abdomen and the endocrine system were normal. The record demonstrates a carcinoid/neuroendocrine tumor in the head of the pancreas was diagnosed in 2002. The pancreatic tumor was initially diagnosed as benign, but a biopsy in 2004 later diagnosed it as a malignant neuroendocrine tumor. In September 2004, the Veteran underwent a pancreaticoduodenectomy (Whipple procedure). The operation note detailed the process for removing the tumor, stating the "pancreas dissected freely off the portal and allowed passage of the kidney pedicle clamp. Along with this, the kidney pedicle clamp was placed posterior to the pancreas and anterior to the portal vein, and the pancreas was sharply transected across after placing some four-quadrant hemostatic sutures about the substance of the pancreas." A kidney pedicle clamp is a surgical tool. An August 2011 VA examiner opined it is less likely as not that the Veteran's pancreatic neuroendocrine neoplasia status post-Whipple procedure is related to service at Camp Lejeune and exposure to contaminated water. The examiner's rationale was although multiple cancers are on the list of diseases associated with exposure to contaminated water at Camp Lejeune, pancreatic cancer and neuroendocrine neoplasia are not. The January 2015 VA examiner opined that based on the preponderance of the medical-scientific literature to date, it is less likely as not that the neuroendocrine tumor involving the pancreas was caused by or a result of exposure to contaminated water at Camp Lejeune. To explain the etiology of neuroendocrine tumors, the January 2015 VA examiner cited a multitude of medical literature, including an article published on the American Cancer Society website stating, "[a]lthough the exact number isn't known, about 8,000 neuroendocrine tumors and cancers that start in the gastrointestinal tract (the stomach, intestine, appendix, colon, or rectum) are diagnosed each year in the United States. These tumors can also start in the lungs and the pancreas, although a small number develop in other organs. Tumors of the endocrine pancreas [...]. As a group, they are sometimes known as pancreatic neuroendocrine tumors (NETs) or islet cell tumors." The August 2011 and January 2015 VA examiners' opinions establish that the Veteran's pancreas disorder is not at least as likely as not related to an in-service injury, event, or disease, including exposure to contaminated water at Camp Lejeune. The examiners' combined opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Indeed, the Veteran's pancreatic tumor was initially misdiagnosed as benign; the post-biopsy diagnosis of neuroendocrine tumor does not indicate any relation to the kidney. While the Veteran believes that the September 2004 surgery revealed his pancreatic neuroendocrine tumors developed first in his kidney, the post-operation note's only reference to a "kidney" is the "kidney pedicle clamp," which was a tool used to perform the surgery. As noted in the medical research the January 2015 VA examiner provided, neuroendocrine tumors typically start in the gastrointestinal tract but sometimes in the lungs and pancreas. These tumors are notably not known to start in the kidney. Further, the Veteran does not have a current or past diagnosis of kidney cancer; the record contains three kidney examinations; a private examiner conducted the most recent examination in March 2021. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges the Veteran's sincere belief that his pancreatic cancer is related to his military service and his conceded exposure to contaminants at Camp Lejeune. The Environmental Health Perspective article, associated with the record in October 2011, regarding tetrachloroethylene-contaminated water in Massachusetts leading to increased instances of cancer, including in the pancreas, was considered. However, while competent to describe the symptoms he experienced, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the Veteran's competence, in this case, because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the August 2011 and January 2015 VA examiners' opinions. The Board thanks the Veteran for his honorable service and regrets a more favorable outcome could not be reached. Unfortunately, however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995). Service connection for a pancreas disorder is not warranted based on the evidence of record; no nexus is established, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56; 38 C.F.R. § 3.102. Diabetes mellitus. In the March 2021 hearing, the Veteran argued that the damage to his pancreas caused diabetes mellitus. Service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Because the Veteran has not raised, and the record does not reasonably raise entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. The Veteran has claimed throughout his appeal that he developed diabetes mellitus secondary to his pancreas disorder. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2009) (claims which have no support in the record need not be considered as the Board is not obligated to consider "all possible" substantive theories of recovery; where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). The Board has denied service connection for a pancreas disorder for the reasons stated above. Therefore, service connection for diabetes mellitus on a secondary basis must also be denied. There exists no legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected; thus, the Veteran's claim for service connection for diabetes mellitus must be denied as a matter of law. See 38 C.F.R. § 3.310; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). In deciding to deny the claim of service connection for diabetes mellitus, the applicability of the benefit of the doubt doctrine has been considered; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Bilateral hearing loss. The Veteran testified that his bilateral hearing loss has increased in severity and frequency since the most recent VA examination in July 2019. Accordingly, a new VA examination should be provided to determine the current severity of his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: (Continued on the next page) Schedule the Veteran for a new audiological examination to determine the current severity of his service-connected bilateral hearing loss. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.