Citation Nr: 22014699 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-32 444A DATE: March 14, 2022 ORDER Service connection for tumors and cancers, to include as due to exposure to chemicals and contaminants is denied. Service connection for a heart disability, to include as due to exposure to chemicals and contaminants is denied. FINDINGS OF FACT 1. Tumors and cancers were not present in service or for years thereafter, and they are not etiologically related to service. 2. A heart disability was not present in service, and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for tumors and cancers, to include as due to exposure to chemicals and contaminants have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a heart disability, to include as due to exposure to chemicals and contaminants have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1962 to June 1970. In October 2020, the Veteran testified at a Video Conference hearing with the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In December 2020 and December 2021, these matters were remanded for further development. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 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). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). Section 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), (citing Gilbert, 1 Vet. App. At 54). 1. Service connection for tumors and cancers, to include as due to exposure to chemicals and contaminants 2. Service connection for a heart disability, to include as due to exposure to chemicals and contaminants The Veteran contends that he has skin tumors and skin cancer of the face/head, due to exposure to chemicals, pollution, and water contamination in Michigan, during active duty at Wurtsmith AFB. Service treatment records show the Veteran developed lipomas to his legs in 1970, during active service, which were excised. There is no evidence in the service treatment records of a heart disability during active duty or at discharge. Post-service private treatment records show that the Veteran was diagnosed with skin tumors, cancers, including chronic lymphocytic leukemia, actinic keratosis, basal cell carcinoma (non-melanoma skin cancer (NMSC)), and dysplastic nevus, and heart disabilities, including coronary artery disease, coronary artery bypass graft, atrial fibrillation, acute resolved congestive heart failure (CHF), and cardiac ablation for previous supraventricular tachycardia (SVT). The evidence does not indicate that the skin tumors, cancers or heart disabilities or their treatment, are due to any event or incident of the Veteran's period of active duty, including any claimed exposure to contaminated water at Wurtsmith Air Force Base (AFB), chemicals, pollutants, benzene, and trichloroethylene (TCE) during service. Pursuant to the Board's December 2020 remand, on March 2021VA skin diseases Disability Benefits Questionnaire (DBQ) examination a skin tumor was diagnosed. On March 2021 VA heart conditions DBQ examination, coronary artery disease, coronary artery bypass graft, atrial fibrillation, and acute resolved congestive heart failure (CHF) were diagnosed. On March 2021 VA hematologic DBQ examination chronic lymphocytic leukemia was diagnosed. In a March 2021VA medical opinion, the examiner opined that the Veteran's heart disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that VA has not recognized that exposure to contaminated water has caused any chronic condition. In an August 2021 VA medical opinion, the examiner opined that the claimed skin disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no clinical evidence that the Veteran's skin disability was caused by his exposure to a contaminated source. In an August 2021 VA medical opinion, the examiner opined that the Veteran's tumors or cancers were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that VA has not recognized that any exposure to contaminated water has caused any tumors or cancers. The examiner further opined that it is less likely than not that the Veteran's diagnosed leukemia is the result of contaminants during service. In an October 2021 VA addendum, a VA examiner opined that the Veteran's coronary artery disease, atrial fibrillation, resolved CHF, and chronic lymphocytic leukemia were less likely than not incurred in or caused by service, to include exposure to contaminated water at Wurtsmith Air Force Base (AFB) and chemicals, pollutants, benzene, and trichloroethylene (TCE) contaminants during service. The examiner considered the newspaper article, report from the Agency for Toxic Substances and Disease Registry (ATSDR), and EPA fact sheet. In a December 2021 remand, the Board found that the previous VA examiners failed to consider the Veteran's credible lay statements and testimony regarding the onset of his disabilities, as directed in previous remands. As such, the claims were remanded again for an addendum opinion. The examiner was directed to consider and discuss as necessary the pertinent evidence of record, to include the Veteran's lay statements, complaints, and hearing testimony concerning the onset of his heart, cancer, and tumor disabilities, including those made to medical providers. The examiner was also directed to consider the evidence submitted by the Veteran, including a newspaper article, EPA fact sheet, and report from ATSDR on a re-evaluation of past exposures to contaminants in drinking water at former Wurtsmith AFB. In a December 2021 VA medical opinion, the examiner, who noted that he had considered the pertinent evidence of record, to include the Veteran's lay statements, complaints, and hearing testimony concerning the onset of his heart, cancer, and tumor disabilities, including those made to medical providers, as well as evidence submitted by the Veteran, including a newspaper article, EPA fact sheet, and report from ATSDR on a re-evaluation of past exposures to contaminants in drinking water at former Wurtsmith AFB, opined that the currently diagnosed tumors and cancers were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner concluded that the Veteran's multiple lipomas were less likely than not incurred in or caused by the claimed exposure to contaminated water at Wurtsmith Air Force Base, including exposure to chemicals, pollutants, benzene, and TCE contaminants during service. The examiner explained that although the Veteran developed lipomas to his legs during active service, which were excised, medical literature has not established a nexus between lipoma and particulate, chemical or radiation exposures. Research has suggested a hereditary or genetic link in the majority of cases and an increased risk of developing lipomas with trauma. Based on probability, a genetic predisposition is the most likely cause of the Veteran's lipomas. The examiner noted that this finding was supported by the fact that the Veteran has accumulated numerous lipomas to different areas of his body even after excision of multiple lipomas. The examiner also opined that the Veteran's actinic keratosis, basal cell carcinoma (non-melanoma skin cancer (NMSC)) and dysplastic nevus were less likely than not incurred in or caused by the claimed exposure to contaminated water at Wurtsmith AFB, including exposure to chemicals, pollutants, benzene, and TCE contaminants during service. The rationale was that both conditions developed 48 years after separation from service and after exposure to chemicals, pollutants and TCE contaminants, making it highly unlikely that these common skin conditions with known etiologies were caused by an exposure more than 4 decades ago. The examiner also explained that dysplastic nevi, actinic keratosis, and basal cell carcinoma all have an increased risk with sun exposure and advanced aging. The Veteran's medical records referencing his skin conditions recommend avoidance or caution with sun exposure. Moreover, actinic keratosis, also known as solar keratosis, specifically develops from exposure to the sun's ultraviolet (UV) light, suggesting the Veteran has significant sun exposure, which is a risk factor for all three of his diagnosed skin conditions. Lastly, the Veteran was first diagnosed with basal cell carcinoma and moderately dysplastic nevus in 2018, at the age of 74, which is actually later than expected, especially since he has the additional risk factor of being fair skinned. In review of potential long-term effects of the various possible pollutants, benzene, chemical, and TCE exposures, there was no known skin condition caused by the ingestion or inhalation of any of those substances, suggesting no nexus has been established. The examiner also opined that the Veteran's acute, subacute, or old myocardial infarction, arteriosclerotic heart disease (coronary artery disease), coronary artery bypass graft, and cardiac ablation for previous supraventricular tachycardia (SVT), since resolved, were less likely than not incurred in or caused by the claimed exposure to contaminated water at Wurtsmith AFB, including exposure to chemicals, pollutants, benzene, and TCE contaminants during service. The rationale was the Veteran had well-known risk factors of history of tobacco smoking and hypertension, causing his arteriosclerotic heart disease (coronary artery disease) and myocardial infarction, resulting in the need for 4 vessel coronary artery bypass graft. In addition, smoking tobacco is also a known risk factor for supraventricular tachycardia, with the Veteran having a documented history or smoking 1 pack of cigarettes a day for years, quitting the same year he developed his supraventricular tachycardia. Moreover, trans-1,2-dichloroethene is the only exposure that debatably may have an effect on the heart, as suggested by medical literature, noting that animals that breathed very high levels of trans-1,2-dichloroethene had damaged hearts, but no explanation as to the specific heart conditions or extent of the damage. However, there is no evidence in the Veteran's records that he was exposed to very high levels of trans-1,2-dichloroethene, and there were no records reporting an exposure with related acute symptoms, which would be significant, serious and life-threatening, suggesting that any exposure the Veteran had was at low levels, which was not shown to cause heart damage in animal studies. The examiner also opined specifically that the Veteran's polycythemia subtype macrocytosis erythrocytosis, also referred to as polycythemia vera, was less likely than not incurred in or caused by the claimed exposure to contaminated water at Wurtsmith AFB, including exposure to chemicals, pollutants, benzene, and TCE contaminants during service. The examiner explained that any mutagenic effects associated with a chemical exposure would have most likely been present during the exposure or within a year of the exposure, and the Veteran's polycythemia was not identified until April 2019, and was not first noted as a diagnosis until January 2020, which is almost 50 years after separation from service. In addition, supplemental testosterone treatment is well known to cause polycythemia or erythrocytosis, and medical records document treatment with exogenous testosterone as early as September 1999, which identifies a known exposure almost 30 years after separation from service that medical research has identified as a definitive cause of polycythemia. This suggests that his polycythemia was caused by his testosterone treatment, and less likely than not due to the claimed exposure to contaminated water at Wurtsmith AFB, including exposure to chemicals, pollutants, benzene, and TCE contaminants during service. There is no contrary medical opinion of record. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the decades-long gap between service and the first notation of cancer and a heart disability, the Board does not find the Veteran's accounts of symptoms of cancer and a heart disability since service to be credible. As such, the Board finds the December 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no other medical evidence of record, VA or private showing that the Veteran's skin tumors, cancers or heart disabilities are related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of cancer and a heart disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for cancer and a heart disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that the Veteran's cancer and coronary artery disease or symptoms thereof was initially shown more than one year after his discharge from service. The Board acknowledges the Veteran's assertion that his skin tumors, cancers, and heart disabilities are due to exposure to contaminated water at Wurtsmith Air Force Base (AFB), or chemicals, pollutants, benzene, and trichloroethylene (TCE) during service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his skin tumors, cancers or heart disabilities and his active service or events therein, as it would require medical expertise to say that the skin tumors, cancers or heart disabilities, identified after service, are the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his skin tumors, cancers or heart disabilities. 38 C.F.R. § 3.159 (a)(1), (2). (Continued on the next page) There is no competent evidence relating the Veteran's skin tumors, cancers or heart disabilities to any event in his active service. Absent such evidence, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claims and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.