Citation Nr: 21029420 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-07 938 DATE: May 13, 2021 ORDER Entitlement to service connection for stomach cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for a breast disability, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran's stomach cancer, to include as due to contaminated water at Camp Lejeune, had its onset during service or is otherwise related to service. 2. The weight of the evidence is against a finding that the Veteran's breast disability, to include as due to contaminated water at Camp Lejeune, had its onset during service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for stomach cancer, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(7), 3.309(f). 2. The criteria for entitlement to service connection for a breast disability, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(7), 3.309(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1954 to April 1957. These matters come before the Board of Veterans' Appeals (Board) from a January 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in relevant part, denied service connection for breast cancer, stomach cancer, and splenomegaly, each claimed by the Veteran as secondary to exposure to Camp Lejeune Contaminated Water (CLCW). In August 2019, the Board remanded these matters for further evidentiary development. The Board notes that while in remand status, in a February 2021 rating decision, the RO granted service connection for splenomegaly. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for splenomegaly. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial ratings or effective dates assigned. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, that issue is not in appellate status at this juncture. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) other than the undersigned in April 2019. A copy of the hearing transcript has been reviewed and associated with the claims file. In a letter dated April 7, 2021, VA notified the Veteran that the VLJ who conducted his hearing is no longer employed by the Board and informed the Veteran that he may request another hearing before a different VLJ within 30 days. VA did not receive a response within the 30-day time window; therefore, the Board will proceed in adjudicating his claims. Service Connection Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Effective March 14, 2017, VA amended its adjudication regulations regarding presumptive service connection, adding certain diseases associated with contaminants present in the base water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina from August 1, 1953, to December 31, 1987. The final rule establishes that Veterans who served at Camp Lejeune for no less than 30 days during this period, and who have been diagnosed with any of eight associated diseases (adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, liver cancer, multiple myeloma, Non-Hodgkin's lymphoma, and Parkinson's disease) are presumed to have incurred or aggravated the disease in service for purposes of entitlement to VA benefits. See 38 C.F.R. § 3.309(f). The Veteran's claimed disabilities, stomach cancer and a breast disease, are not currently on the presumptive disability list. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on a direct basis, to include as due to Camp Lejeune water contamination. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death 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, the Secretary 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); see also 38 C.F.R. § 3.102. Except as otherwise provided by law, the Veteran has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107(a). At the outset, the Board notes that the Veteran's exposure to CLCW has been conceded. The Veteran contends that both of his claimed conditions are related to such exposure. 1. Entitlement to service connection for stomach cancer, to include as due to exposure to contaminated water at Camp Lejeune The Veteran's service treatment records reveal that he sought treatment for stomach pain while in service in February 1955. His pain was determined to be caused by abdominal lymphadenitis, secondary to pharyngitis. With respect to any stomach issues, his entrance and separation examinations were clinically normal. The Veteran's private treatment records indicate that he was diagnosed with a gastrointestinal stromal tumor (GIST), a cancer of the stomach, in January 2010. For the reasons set forth below, the Board finds that the record does not establish all elements of service connection for stomach cancer. A VA examination was conducted in December 2015, in which the examiner opined that the Veteran's GIST is less likely than not related to his service. The examiner stated that a review of medical literature did not show any studies indicating a correlation between GIST and the contaminants found in CLCW. He also pointed out that the Veteran's mother was diagnosed with stomach cancer. Although most GISTs are sporadic (not inherited) and have no clear cause, the medical opinion states, GISTs have been found in several members of the same family on rare occasions. The examiner stated that this is due to a gene mutation that can lead to GIST. Another VA examination was conducted in October 2019. The examiner opined that the Veteran's stomach cancer was not caused by or a result of his exposure to CLCW, indicating that no available medical literature supports a causal link between the contaminants found in the Camp Lejeune water and any gastric cancers. Another VA examination, conducted in February 2021, supports both the December 2015 and October 2019 medical opinions. The examiner stated that one of two major genetic mutations is the most common cause of GIST and highlighted the lack of medical evidence suggesting a link between GIST and the contaminants found in CLCW. The examiner pointed out that the diagnosed abdominal lymphadenitis was determined to be secondary to pharyngitis, suggesting a viral etiology, and had resolved before his separation from service. Further, over fifty years had passed between his in-service abdominal pain and GIST diagnosis, and the claims file does not indicate any treatment for a stomach problem during that large gap in time. The examiner indicated that, due to the pathophysiology of GIST, it is highly unlikely that the cancer could go unnoticed for such a long period, making it "virtually impossible" that the GIST is related to his in-service abdominal lymphadenitis diagnosis. Because of this, the examiner opined that it is less likely than not that his stomach cancer disability is due to or incurred in service, including exposure to CLCW. The Board acknowledges the Veteran's assertion that his stomach cancer is related to his exposure to CLCW and/or his in-service diagnosis of abdominal lymphadenitis. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds in this case that the determination of the origin of stomach cancer is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the record not does contain sufficient evidence to conclude that the Veteran's GIST is related to service, to include as due to CLCW exposure and/or his in-service diagnosis of abdominal lymphadenitis. Thus, the Board finds that preponderance of the evidence is against the claim and it must therefore be denied. See 38 C.F.R. §§ 3.303, 3.305, 3.306, 3.307, 3.309(f). 2. Entitlement to service connection for a breast disability, to include as due to exposure to contaminated water at Camp Lejeune The Veteran's private treatment records indicate that a mammogram was performed in June 2006 and showed no evidence of breast cancer. An October 2006 VA treatment record indicates his diagnosis as breast disease with nodularity. He asserts that his breast disability is related to his service, to include as due to exposure to CLCW. For the reasons set forth below, the Board finds that the Veteran has not proven all of the elements of service connection with respect to a breast disability. The Veteran's entrance and separation examinations were clinically normal with respect to any breast conditions, and his service treatment records do not indicate that he complained of or sought treatment for a breast issue during service. His VA and private treatment records do not reveal any symptoms of, or treatment for, a breast disease prior to 2006. A VA examination was conducted in December 2015, in which the examiner stated that the Veteran had a benign breast disease with no evidence of cancer or malignancy. Because the Veteran initially claimed his disability as breast cancer, rather than a breast disability, the examiner stated that no medical opinion regarding the etiology of his breast disease was warranted. Additional VA examinations were conducted in October 2019 and June 2020, wherein both examiners opined that the Veteran's breast disease is less likely than not caused by CLCW exposure. In support of their opinions, both examiners pointed out that no studies have been found to indicate that breast nodules are related to exposure to the contaminants contained in CLCW. The June 2020 examiner stated that the cause of breast nodules is unknown in approximately 25 percent of cases, and medications and certain diseases are the most common causes of breast nodules. A subsequent VA examination was conducted in December 2020 to address whether the Veteran's breast disease is related to any in-service event, injury, or illness other than CLCW exposure. The examiner stated that the evidence presented does not establish a chronicity of care relating back to his service, noting the lack of in-service treatment and clinically normal separation examination, and that he was not diagnosed until 2006, almost 50 years after separation from service. The Board acknowledges the Veteran's assertion that his breast disability is related to his exposure to CLCW. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the Veteran's breast disability is a medical question not subject to lay expertise. See Jandreau, 492 F.3d at 1372. The weight of the evidence before the Board is against finding that the Veteran's breast disability is related to his service. There is no medical evidence establishing a causal connection between exposure to CLCW and breast nodules, and the evidence of record does not indicate that his breast disease was caused by any in-service event, injury, or illness. Because the Veteran has not submitted sufficient evidence to prove a nexus between his disability and his service, the claim must be denied. See 38 C.F.R. §§ 3.303, 3.305, 3.306, 3.307, 3.309(f). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.