Citation Nr: 21042042 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 19-39 250 DATE: July 11, 2021 ORDER 1. Entitlement to service connection for breast cancer, to include exposure to contaminated water at Camp Lejeune, is denied. 2. Entitlement to service connection for coronary artery disease, to include exposure to contaminated water at Camp Lejeune, is denied. 3. Entitlement to service connection for diabetes mellitus, to include exposure to contaminated water at Camp Lejeune, is denied. REMANDED 4. Entitlement to service connection for melanoma, to include exposure to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. Breast cancer did not have its onset during active service or within one year of service discharge and is not otherwise related to active service, to include exposure to contaminated water at Camp Lejeune. 2. Coronary artery disease did not have its onset during active service or within one year of service discharge and is not otherwise related to active service, to include exposure to contaminated water at Camp Lejeune. 3. Diabetes mellitus did not have its onset during active service or within one year of service discharge and is not otherwise related to active service, to include exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection for breast cancer, to include exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for coronary artery disease, to include exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for diabetes mellitus, to include exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1959 to June 1964, including active service at Camp Lejeune from May 1959 to August 1959, January 1961 to June 1961, and November 1961 to June 1962. These matters come before the Board of Veterans' Appeals (Board) from August 2015 and June 2018 rating decisions of the Department of Veterans Affairs (VA). The Veteran's February 2016 and December 2019 VA Form 9, Appeal to the Board, each requested a hearing before the Board. Although the Veteran was subsequently unable to be present due to his health, his wife testified on his behalf at a January 2021 virtual hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the Veteran's attorney indicated that he was seeking a nexus letter from an oncologist to tie the Veteran's claimed conditions to his exposure to contaminated water at Camp Lejeune, and the record was held open for 30 days to allow for the submission of additional evidence. Additionally, the undersigned stated at the hearing that the Veteran had not responded to a September 2018 request from VA to grant authorization to obtain identified private treatment records from various facilities where the Veteran had received treatment, including Dana-Farber, Brigham and Women's, Boston Medical Center, Southern New Hampshire Internal Medicine Associates, and Joslin Diabetes Center. Although the attorney reported that he had submitted such records "a year and a half or two years ago," the Board notes that the claims file contains a one-page letter from Dr. Laura J. Fox of Southern New Hampshire Internal Medicine Associates and 17 pages of records from Dana-Farber. As above, the record was held open for 30 days to allow the Veteran and/or his attorney to submit the identified private treatment records, although nothing further was received by the expiration of the 30-day period on February 14, 2021. Thereafter, a March 2021 submission by the Veteran's attorney reported that an oncologist was reviewing the Veteran's medical records pertaining to his diagnosis of breast/melanoma cancer in order to provide a nexus opinion statement, which the attorney stated should be available within the next 30 days. Additionally, the attorney noted that they were awaiting one treating source to provide up-to-date records. However, following the January 2021 Board hearing, no additional evidence has been submitted by the Veteran or his attorney. As such, the Board finds that the allotted extension of time has elapsed, and no further extension has been requested by the Veteran or his representative. The Veteran has not provided the requested authorization for VA to obtain his private treatment records and he has not submitted them himself. VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the above, VA is unable to obtain the identified private treatment records without authorization, and the Board finds that VA's duty to assist has been met. Accordingly, the Board will proceed to adjudicate the Veteran's claims based upon the available evidence of record. See Turk v. Peake, 22 Vet. App. 565 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) 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. For certain chronic diseases, including cardiovascular-renal disease, diabetes mellitus, and malignant tumors, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Service connection may also be granted on a presumptive basis for certain specified diseases as due to presumed exposure to the contaminants in the water supply at Camp Lejeune (including the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride) provided the disease manifests to a compensable degree at any time after service in a Veteran who had no less than 30 days (consecutive or nonconsecutive) of active service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. The Veteran's service personnel records document that he had the requisite active service at Camp Lejeune; therefore, he is presumed to have been exposed to the contaminated water supply at Camp Lejeune. 1. Entitlement to service connection for breast cancer. The Veteran claims that his breast cancer is the result of his active service, to include as due to his presumed exposure to contaminated water at Camp Lejeune. However, following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence weighs against the Veteran's claim. The reasons for this decision follow. As to the first element of a service-connection claim, a current disability, post-service private treatment records from February 1995 document the Veteran's diagnosis of left breast ductal carcinoma in situ, which was subsequently treated by left breast mastectomy in March 1995. VA treatment records from November 2014 document that his breast cancer, status post left mastectomy was stable, with no evidence of disease. As such, the first element of the Veteran's service-connection claim is met. As to the second element of an in-service disease or injury, the Board notes that service treatment records do not document complaints, treatment, or diagnosis of breast cancer during active service. A December 1958 Report of Medical Examination at enlistment documents normal clinical evaluations, without any notation of a breast cancer defect or diagnosis. Additionally, the Veteran denied a history of cancer within a concurrent Report of Medical History at enlistment. Similarly, a June 1962 Report of Medical Examination at reenlistment again documents normal relevant clinical evaluations, without any notation of a breast cancer defect or diagnosis. Finally, the Veteran's June 1964 Report of Medical Examination at release from active duty again documents normal relevant clinical evaluations, without any notation of a breast cancer defect or diagnosis. Given the above, the Board finds that the evidence of record does not document an in-service incurrence of breast cancer. Nevertheless, as the Veteran's stated theory of entitlement asserts that his breast cancer is related to presumed exposure to contaminated water at Camp Lejeune, such exposure is sufficient to meet the in-service element of the Veteran's claim to this extent. Notably, however, there is no competent evidence that breast cancer first manifested during active service or within one year of service discharge to warrant presumptive service connection for malignant tumors as a chronic disease. Additionally, the Board is mindful that breast cancer is not a disease that VA has determined to be presumptively associated with exposure to contaminated water at Camp Lejeune; therefore, service connection for left breast cancer cannot be granted on a presumptive basis due to such exposure. Nevertheless, the Veteran may still provide evidence that his left breast cancer is directly due to exposure to contaminated water at Camp Lejeune. However, as discussed below, the Board finds that the most probative evidence of record weighs against a finding that the Veteran's left breast cancer is related to his active service, to include as a result of exposure to contaminated water at Camp Lejeune. The Veteran submitted a May 2014 private opinion by Dr. Laura J. Fox of Southern New Hampshire Internal Medicine Associates, wherein Dr. Fox reported that the Veteran had been an internal medicine patient of hers for the last three years. She stated that he was diagnosed with left ductal carcinoma of the breast in February 1995 and that a review of his family history was negative for breast cancer in his first and second degree relatives. She noted that the Veteran had genetic testing at Dana Farber Cancer Institute through the Cancer Genetics and Prevention Consultation, which was negative for predisposition for these malignancies. Dr. Fox stated that it was her opinion that the Veteran's breast cancer is very likely related to his exposure to the contaminated water supply at Camp Lejeune during his two tours of duty while there. In August 2015, a VA examiner reviewed the Veteran's claims file and considered the Veteran's claim that his breast cancer was secondary to exposure to Camp Lejeune contaminated water. The examiner stated that the diagnosis of breast cancer is confirmed, however, it was not due to or related to his exposure to Camp Lejeune contaminated water. The examiner noted that according to the American Cancer Society (ACS), although breast cancer is about 100 times less common among men than among women, the lifetime risk of getting breast cancer in men is still about 1 in 1,000. The examiner noted that the risk of developing breast cancer in men increases with age, and that the average age at diagnosis is about 68 years old, while the Veteran was 55 years old when he was diagnosed. The examiner then noted that there is an inherited genetic mutation that is very closely linked to an increased risk of breast cancer, and that in men having this BRAC2 mutation, it raises their lifetime risk of developing breast cancer to about 6 in 100, although the Veteran underwent genetic testing and was found not to have a BRCA2 mutation. In addition, the examiner noted that the ACS identifies having a family history of breast cancer, Klinefelter's syndrome, radiation exposure, heavy alcohol intake, liver problems, estrogen treatment, obesity, testicular conditions and working in very hot environments as risk factors for the development of breast cancer in males, as many of these risk factors are thought to be related to decreased testosterone and/or increased estrogen levels. The examiner noted that the Veteran's sister was also diagnosed with breast cancer and that the Veteran had a very long history of type 2 diabetes mellitus, with a BMI that placed him in the obese category, both of which are associated with decreased testosterone level. Additionally, the examiner noted that there is a possible connection between cigarette smoking and exposure to secondhand cigarette smoke and an increased risk of breast cancer. Although the examiner stated that there were no records available for review that describe whether the Veteran was a smoker and whether or not he had a high likelihood of exposure to second-hand smoke at home or work, the Board notes that an October 2013 record from Dana-Farber Cancer Institute detailing the Veteran's family tree history indicates that the Veteran's parents had a history of smoking. Thus, it is reasonable to assume that the Veteran was exposed to secondhand smoke. Additionally, the VA examiner noted that when the U.S. Environmental Protection Agency (EPA) studied the four solvents found in the drinking water at Camp Lejeune, they found suggestive, but limited data indicating a link between breast cancer and both Trichloroethylene and Tetrachloroethylene and no data suggesting a link between Benzene or Vinyl Chloride and breast cancer. The Institute of Medicine conducted an extensive review of the literature, which looked at solvent exposure and an increased risk of cancer, which identified multiple studies that failed to identify a statistically significant link between solvent exposure and an increased risk of developing breast cancer. The studies that quantified exposures either in duration or intensity or both came closer to identifying significant relationship for those with the longest and/or highest exposure categories. As such, the committee concluded, "from its assessment of the epidemiologic literature, that there is inadequate/insufficient evidence to determine whether an association exists between chronic exposure to solvents under review and breast cancer. Therefore, based upon the currently available literature, the Veteran's short length of time at Camp Lejeune (1.3 years), his sister having been diagnosed with breast cancer, his long-term diabetes mellitus, his body habitus, and the estimated small magnitude of potential solvent exposure at Camp Lejeune, the VA examiner opined, to a reasonable degree of medical certainty, that the Veteran's breast cancer is not due to his exposure to Camp Lejeune contaminated water. Regarding the May 2014 private opinion by Dr. Fox, the VA examiner stated that the opinion is not supported by the medical or scientific literature and it is purely speculative. After consideration of the conflicting nexus opinions of record discussed above, the Board affords greater probative value to the August 2015 VA examiner's opinion, which is well-supported by a probative rationale based upon consideration of the Veteran's specific theory of entitlement and the private nexus opinion offered in support of his claim, as well as a detailed discussion of the related medical literature and scientific expertise. The Board agrees that the May 2014 private opinion of Dr. Fox did not provide a thorough rationale for her conclusion, which lowers the probative value of her opinion, especially when weighed against the thorough and well-supported August 2015 VA opinion discussed above. To the extent that the lay statements of the Veteran, his spouse, and his attorney assert that his breast cancer is related to his active service, to include as due exposure to contaminated water at Camp Lejeune, the Board finds that the lay proponents are not competent to provide a nexus opinion to link breast cancer to the Veteran's active service, including exposure to contaminated water, as medical expertise is required. In this regard, the question of causation involves a medical and scientific subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the lay opinions of record are nonprobative evidence. Given the above evidence, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for breast cancer, to include as a result of exposure to contaminated water at Camp Lejeune. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. 2. Entitlement to service connection for coronary artery disease. 3. Entitlement to service connection for diabetes mellitus. The Veteran also claims that coronary artery disease and diabetes mellitus are the result of his active service, to include as due to breast cancer and/or his presumed exposure to contaminated water at Camp Lejeune. However, following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence weighs against the Veteran's claims. The reasons for this decision follow. As to the first element of a service-connection claim, a current disability, the Board notes that post-service VA treatment records from November 2013 document his diagnoses coronary artery disease and diabetes mellitus type II. As such, the first element of the Veteran's service-connection claims is met. As to the second element of an in-service disease or injury, the service treatment records do not document complaints, treatment, or diagnosis of coronary artery disease or diabetes mellitus during active service. A December 1958 Report of Medical Examination at enlistment documents normal clinical evaluations, without any notation of coronary artery disease or diabetes mellitus as a defect or diagnosis. Additionally, the Veteran denied a history of related symptoms within a concurrent Report of Medical History at enlistment. Similarly, a June 1962 Report of Medical Examination at reenlistment again documents normal clinical evaluations, without any notation of coronary artery disease or diabetes mellitus as a defect or diagnosis. Finally, the Veteran's June 1964 Report of Medical Examination at release from active duty again documents normal clinical evaluations, without any notation of coronary artery disease or diabetes mellitus as a defect or diagnosis. Given the above, the Board finds that the evidence of record does not document an in-service incurrence of coronary artery disease or diabetes mellitus. To the extent that the Veteran asserts that his claimed conditions are related to his claimed breast cancer, the Board has above denied service connection for breast cancer; therefore, a secondary relationship cannot be established as a matter of law. Nevertheless, to the extent that the Veteran's asserts that his such conditions may be related to presumed exposure to contaminated water at Camp Lejeune, such exposure is sufficient to meet the in-service element of the Veteran's claims. Notably, however, there is no competent evidence that coronary artery disease or diabetes mellitus first manifested during active service or within one year of service discharge to warrant presumptive service connection for cardiovascular-renal disease or diabetes mellitus as a chronic disease. Additionally, the Board is mindful that coronary artery disease and diabetes mellitus are not diseases that VA has determined to be presumptively associated with exposure to contaminated water at Camp Lejeune; therefore, service connection for such conditions cannot be granted on a presumptive basis due to such exposure. Nevertheless, the Veteran may still provide evidence that his coronary artery disease or diabetes mellitus is directly due to service, to include exposure to contaminated water at Camp Lejeune. However, as discussed below, the Board finds that the most probative evidence of record weighs against a finding that the Veteran's coronary artery disease or diabetes mellitus are related to his active service, to include as a result of exposure to contaminated water at Camp Lejeune. Significantly, however, a review of the additional treatment records within the claims file does not document probative nexus evidence that the Veteran's coronary artery disease or diabetes mellitus are related to his active service, to include exposure to contaminated water at Camp Lejeune. To the extent that the lay statements of the Veteran, his spouse, and his attorney assert that his coronary artery disease or diabetes mellitus are related to his active service, to include as due exposure to contaminated water at Camp Lejeune, the Board finds that the lay proponents are not competent to provide a nexus opinion to link such conditions to the Veteran's active service, including exposure to contaminated water, as medical expertise is required. In this regard, the question of causation involves a medical and scientific subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the lay opinions of record are nonprobative evidence. The Board is mindful that the Veteran has not been afforded a VA examination or medical opinion for his current coronary artery disease or diabetes mellitus. However, the Board finds that the facts of this case do not establish entitlement to a VA examination and/or medical opinion regarding such claims. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the preponderance of the evidence is against a finding that coronary artery disease or diabetes mellitus occurred in service, that such conditions manifested during an applicable presumptive period, and the probative evidence of record does not otherwise indicate that such conditions may be associated with the Veteran's service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria have to be met, and here, at least one criteria is not met. Therefore, the Board finds that entitlement to a VA examination and/or medical opinion is not warranted for the Veteran's claims of entitlement to service connection for coronary artery disease or diabetes mellitus. In conclusion, for all the reasons described above, the Board finds that the preponderance of evidence weighs against the Veteran's claims for service connection for coronary artery disease or diabetes mellitus, to include as due to presumed exposure to contaminated water at Camp Lejeune. As such, there is no reasonable doubt to be resolved, and the claims for service connection for coronary artery disease and diabetes mellitus are denied. REASONS FOR REMAND 4. Entitlement to service connection for melanoma is remanded. As noted above, a VA examination and/or opinion is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. 79. A review of the record reveals that post-service VA treatment records from November 2013 document a diagnosis of melanoma. To the extent that the Veteran's asserts that his melanoma may be related to presumed exposure to contaminated water at Camp Lejeune, such exposure is sufficient to meet the requirement of an event, injury, or disease in service. Although melanoma is not a disease that VA has determined to be presumptively associated with exposure to contaminated water at Camp Lejeune; the Veteran has submitted a May 2014 private opinion by Dr. Laura J. Fox of Southern New Hampshire Internal Medicine Associates, wherein Dr. Fox reported that the Veteran had been an internal medicine patient of hers for the last three years and that he was diagnosed with superficial-spreading melanoma of the right forearm in September 2009. Dr. Fox stated that the Veteran's melanoma may be related to his exposure to contaminated water supply at Camp Lejeune. While this opinion by Dr. Fox is speculative in nature and unsupported by a rationale, it is sufficient indication that the Veteran's melanoma may be associated with his exposure to contaminated water supply at Camp Lejeune during active service to warrant a VA opinion. Accordingly, as the positive nexus opinion of Dr. Fox indicates that the Veteran's melanoma may be associated with his exposure to contaminated water supply at Camp Lejeune during active service, the Board finds that a VA examination and/or opinion is warranted on remand. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a qualified VA examiner regarding his claim of service connection for melanoma. The claims file must be made available to the examiner for review. The examiner should be provided with a copy of the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran claims that his melanoma is related to active service, including his exposure to contaminated water at Camp Lejeune. The Veteran had active service from January 1959 to June 1964, including active service at Camp Lejeune from May 1959 to August 1959, January 1961 to June 1961, and November 1961 to June 1962. Service connection may be granted on a presumptive basis for certain specified diseases as due to presumed exposure to the contaminants in the water supply at Camp Lejeune (including the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride) provided the disease manifests to a compensable degree at any time after service in a Veteran who had no less than 30 days (consecutive or nonconsecutive) of active service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. The Veteran's service personnel records document that he had active service at Camp Lejeune; therefore, he is presumed to have been exposed to the contaminated water supply at Camp Lejeune. Although melanoma is not is not a disease that VA has determined to be presumptively associated with exposure to contaminated water at Camp Lejeune, the Veteran may still prove that his claimed disability is directly related to such exposure. Post-service VA treatment records from November 2013 document a diagnosis of melanoma. See VBMS entry with document type, "CAPRI," receipt date 08/17/2015, at page 5. A May 2014 letter from a private physician, Dr. Laura J. Fox, of Southern New Hampshire Internal Medicine Associates, documents that the Veteran had been an internal medicine patient of hers for the last three years and that he was diagnosed with superficial-spreading melanoma of the right forearm in September 2009. Dr. Fox stated that the Veteran's melanoma may be related to his exposure to contaminated water supply at Camp Lejeune. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 06/10/2014. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner should then opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's melanoma is related to the Veteran's period of active service from January 1959 to June 1964, including his presumed exposure to contaminated water at Camp Lejeune. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given, and the examiner should specifically discuss the May 2014 private nexus opinion rendered by Dr. Fox. If the examiner is unable to provide the requested opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.