Citation Nr: 21029782 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-39 252 DATE: May 17, 2021 ORDER Entitlement to service connection for lung cancer, to include adenocarcinoma left lower lobe and left upper lobe is denied. FINDINGS OF FACT 1. The Veteran was stationed at Camp Lejeune for at least 30 days prior to December 31, 1987. 2. The Veteran's lung cancer, to include adenocarcinoma left lower lobe and left upper lobe did not manifest in active service, and is not otherwise related to service, including exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for lung cancer, to include adenocarcinoma left lower lobe and left upper lobe as a result of exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1958 to February 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2016 rating decision. In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. Entitlement to service connection for lung cancer, to include adenocarcinoma left lower lobe and left upper lobe is denied. The Veteran states that his lung cancer is due to his exposure to contaminated water while stationed at Camp Lejeune, North Carolina. For the reasons discussed below, the Board finds that service connection is not warranted. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. See 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines "contaminants in the water supply" as the volatile organic compound trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309(f), (i.e., adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The rulemaking applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 9, 4173-4185 (January 13, 2017); VA M-21-1 Adjudication Manual, Part IV, Subpart ii, Chapter 2, Section C.6.a. (revised March 14, 2017). However, in issuing this new regulation, the VA specifically concluded that there is insufficient medical and scientific evidence to establish a presumption of service connection for any disability beyond the eight diseases listed in the regulation. 82 Fed. Reg. 4180. Additionally, in the explanatory material published in the Federal Register, VA noted that the Camp Lejeune Act provides medical care, but not compensation benefits, to veterans who served on active duty at Camp Lejeune for the 14 identified conditions "notwithstanding that there is insufficient medical evidence to conclude that such illnesses or conditions are attributable to such service." VA's more recent review of scientific evidence was undertaken to determine the appropriateness of establishing presumptions of service connection for claimants who served at Camp Lejeune. As noted in the proposed rulemaking, this review included the analysis of several hazard evaluations on the chemicals of interest conducted by multiple bodies of scientific experts and was not an evaluation of the specific risks of exposure to contaminated water at Camp Lejeune. VA's review resulted in the recognition that liver cancer and Parkinson's disease, two diseases that were not included in the Camp Lejeune Act, are conditions for which there is strong evidence of a causal relationship and evidence that the condition may be caused by exposure to the contaminants. However, at this time, VA concludes that there is insufficient evidence to establish presumptions of service connection for the following diagnosed chronic disabilities in the Camp Lejeune Act: esophageal cancer, lung cancer, breast cancer, neurobehavioral effects, and scleroderma. As noted in the notice of proposed rulemaking, none of the evidence reviewed concluded that there is a positive association between these conditions and the volatile organic compounds of interest. 82 Fed. Reg. 4178. Notwithstanding the presumption, service connection for a disability claimed as due to contaminated water at Camp Lejeune, North Carolina, may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. The Board finds that the Veteran has a current disability. The Veteran's private treatment records demonstrate that he had an adenocarcinoma of the left upper lobe removed in April 2011 and adenocarcinoma of the left lower lobe removed in March 2012. The Veteran's VA treatment records provide that he is status post lobectomy for lung cancer. The Veteran reported that he was stationed at Camp Lejeune during his active service. Information in the Veteran's service personnel and treatment records indicate that he was stationed at Camp Lejeune during that timeframe for more than 30 days. Thus, he is presumed to have been exposed to the contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307(a)(7). The Veteran's lung cancer, to include adenocarcinoma left lower lobe and left upper lobe, are not included in the list of presumptive diseases under 38 C.F.R. § 3.309(f) regarding contaminated water at Camp Lejeune. Consequently, service connection cannot be established for these disabilities on a presumptive basis with respect to such exposure. Further, the Board finds that the criteria for service connection on a direct basis are not satisfied. As discussed above, the current disability element is satisfied. The Veteran's exposure to the contaminants in the water at Camp Lejeune satisfies the service incurrence element. Regarding the nexus element, the Board finds that a link between the Veteran's service, including his exposure to the contaminants in the water at Camp Lejeune, and his lung cancer, to include adenocarcinoma left lower lobe and left upper lobe is not established. The Veteran's service treatment records are silent for complaints, treatment, or diagnoses relating to lung cancer. The Veteran's claims folder contains a May 2018 medical opinion obtained by VA. The medical opinion concludes that the Veteran's claimed condition is less likely than not related to his active service. In support, medical opinion indicates that the January 13, 2017 report entitled "ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases" does not list the Veteran's claimed condition of lung cancer to include growth removal of lung/partial removal of one lobe as conditions having a suspected association with exposure to the contaminants in the water at Camp Lejeune. The medical opinion states that the Veteran was stationed at Camp Lejeune from May 23, 1958 to June 21, 1962. However, the Veteran's service personnel records demonstrate that he was away from Camp Lejeune at sea from July 23, 1958 to August 6, 1958, from January 13, 1960 to June 12, 1960, from September 10, 1958 to March 24, 1959, and June 9, 1959 to August 5, 1959. The Veteran's private treatment record indicate that he has a 50-pack-year history of smoking cigarettes, and he stopped smoking in approximately 1991. The medical opinion provides that the social, occupational, and environmental history was very limited for the Veteran as his civilian occupation was noted as a tractor operator and plasterer helper. According to the medical opinion, it is unknown whether the Veteran had any other exposure to known lung cancer risk factors other than cigarette smoking, such as Radon gas exposure or exposure to asbestos. The May 2018 medical opinion further provides that the most likely cause of the occurrence of the Veteran's disability is cigarette smoking, the well-known and most common risk factor associated with the development of lung cancer. The medical opinion includes extensive citations to medical literature regarding lung cancer and statistics concerning the relationship between lung cancer and cigarette smoking. As noted above, the Veteran had a 50-pack-year history of smoking, and quit in approximately 1991. Thus, the Veteran's exposure to this known lung cancer risk factor persisted long after his last date and exposure to the contaminants in the water at Camp Lejeune in 1962, which makes the risk factor of smoking the most proximate known exposure to a lung cancer carcinogen and the development of adenocarcinoma of the lung. In addition, while the Veteran was stationed at Camp Lejeune from May 23, 1958 to February 21, 1962, he had periods during this timeframe when he was engaged in sea travel and thus was not exposed to the contaminants in the water at Camp Lejeune. Therefore, this sea travel significantly decreased the total time of potential exposure to the contaminants in the water at Camp Lejeune. The Board finds the above May 2018 medical opinion obtained by VA to be especially probative regarding the relationship between the Veteran's disability and his exposure to the contaminants in the water at Camp Lejeune. The medical opinion is the product of informed conclusions supported by thorough explanations and based on a review of the Veteran's medical history and relevant medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions). As will be discussed below, the Veteran's claims folder does not contain a medical opinion linking his disability to his active service. The Veteran's claims folder also contains a February 2021 letter from the Veteran's private physician. The letter states that the Veteran has a history of two synchronous non-small cell cancers of the lung that have been successfully resected. The letter further provides that his history of lung cancer is a qualifying health condition in the Camp Lejeune Act of 2012, thus affording him healthcare and healthcare funding assistance. The February 2021 letter does not provide an opinion as to whether the Veteran's disability is related to his exposure to the contaminants in the water at Camp Lejeune. Further, VA specifically found that there is insufficient evidence to establish presumptions of service connection for lung cancer as a chronic disability noted in the Camp Lejeune Act that provides medical care, but not compensation benefits. Therefore, as no opinion was offered in this letter, it is not probative on the issue of whether the Veteran's disability is related to his active service. The Board notes that in a February 2016 written statement, the Veteran provided that his lung cancer is related to exposure to contaminated drinking water at Camp Lejeune. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this regard, the evidence does not show that the Veteran has a medical background or medical expertise, and therefore he is considered a lay person in the field of medicine. The issue is medically complex, as it requires specialized medical education and the ability to conduct and interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Therefore, the Veteran is not competent to opine that his disability is related to his exposure to the contaminants in the water at Camp Lejeune. See Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). In sum, a nexus between the Veteran's lung cancer, to include adenocarcinoma left lower lobe and left upper lobe and is not established, the criteria for service connection on a direct basis are not satisfied. See Holton, 557 F.3d at 1366. Consequently, the benefit-of-the-doubt rule does not apply, and service connection is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean Mussey, Associate 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.