Citation Nr: 22015147 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 20-11 145 DATE: March 16, 2022 ORDER Entitlement to service connection for pancreatic cancer, to include as due to contaminated water exposure at Camp LeJeune, is granted. REMANDED Entitlement to service connection for periampullary cancer (claimed as stomach cancer) to include as secondary to service-connected pancreatic cancer and/or as due to contaminated water exposure at Camp LeJeune, is remanded. FINDINGS OF FACT 1. The Veteran served at the United States Marine Corps Base Camp Lejeune, North Carolina (Camp Lejeune) for more than 30 days during the period beginning August 1,1953 and ending on December 31, 1987. 2. The evidence is in relative equipoise as to whether the Veteran's pancreatic cancer is due to his exposure to contaminated drinking water at Camp Lejeune during service. CONCLUSION OF LAW The criteria for service connection for pancreatic cancer are met. 38 U.S.C. §§ 1110, 5107; C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1951 to January 1954. In November 2021 the Veteran testified before the undersigned Veterans Law Judge. However, in December 2021 the Veteran was notified that a transcript of his hearing was unavailable due to technical difficulties. He was offered a new hearing but declined in January 2022. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the Board has recharacterized the claim for entitlement to service connection for periampullary cancer (claimed as stomach cancer) to include as secondary to service-connected pancreatic cancer and/or as due to contaminate water exposure at Camp LeJeune, to afford the Veteran the broadest possible scope of review. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Entitlement to service connection for pancreatic cancer, to include as due to contaminated water exposure at Camp LeJeune, is granted. The Veteran contends that his pancreatic cancer is due to exposure to contaminated water while stationed at Camp Lejeune. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent 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. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune between August 1953 and December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). The contaminants included trichloroethylene (TCE) (a metal degreaser), perchloroethylene (PCE) (a dry-cleaning agent), benzene, vinyl chloride, and other VOCs. Pancreatic cancer is not currently on the presumptive disability list for exposure at Camp Lejeune under 38 C.F.R. § § 3.309 (f). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records (STRs) are silent as to any complaints, treatment or diagnosis related to pancreatic cancer. However, the Veteran's personnel records reflect that he was stationed at Camp LeJeune between August 1953 and December 1987 for more than 30 days. Therefore, the Board finds that the Veteran does have the requisite service to recognize presumptive exposure to contaminated water at Camp LeJeune. Post-service, the Veteran was diagnosed with pancreatic cancer in 1998. In March 2018 the Veteran submitted a private opinion from his doctor, Dr. G.P. The examiner noted that he had reviewed the Veteran's treatment records since separation and that the Veteran's pancreatic cancer was most likely caused by or a result of contaminated water exposure while in service. The examiner noted that the Veteran was stationed at Camp LeJeune, an area with contaminated water and that "a number of malignancies, including pancreatic cancer, have been associated with exposure to such waters. The length of exposure (2.5) years is felt to be 'significant to create the medical condition.'" In April 2018 the Veteran underwent a VA Camp LeJeune Contaminated Water (CLCW) examination with an accompanying disability benefits questionnaire (DBQ). The examiner noted that according to the Veteran's military personnel records, he served at Camp LeJeune from November 1953 to January 1954. The examiner opined that the Veteran was diagnosed with ampullary adenocarcinoma in 1998 and that while there are few known risk factors for small intestine cancer, the Veteran was male, Caucasian, advanced in age and had a history of smoking and being overweight. The examiner found no association between solvent exposure and adenocarcinoma of the small intestine. Furthermore, the examiner found that the Veteran had not been diagnosed with pancreatic cancer and therefore any statements indicating an opinion related to such are not applicable and inherently inaccurate. Therefore, the examiner found that the Veteran's primary ampullary cancer is less likely than not due to or caused by his relatively minimal exposure to CLCW. The Board affords this examination and opinion little if any probative weight, as the examiner not only failed to recognize the Veteran's pancreatic cancer diagnosis and therefore did not provide an etiological opinion, but also appears to have the Veteran's dates of service at Camp LeJeune wrong. In February 2020 the Veteran was provided with an additional VA Medical Opinion. The examiner noted that the Veteran served at Camp LeJeune from October 1952 to January 1954. The examiner found that while the Veteran did have a diagnosis of pancreatic cancer, such was less likely as not caused by or the result of the Veteran's exposure to contaminated water at Camp LeJeune. The examiner noted that the cause of pancreatic cancer is still unknown, but that the Veteran had a history of smoking and was advanced in age, two known risk factors. The examiner concluded that based on a review of the Veteran's records as well as the medical literature, that there was no direct or causal connection between the Veteran's pancreatic cancer and his exposure to contaminated water at Camp LeJeune. The examiner noted that the Veteran's exposure was in 1952-1954 and that he was not diagnosed until approximately 1998. The examiner found such a lengthy time between exposure and diagnosis was not in keeping with his clinical experience. Rather the examiner found that the Veteran's history of smoking for approximately 90 years was more likely to have aided in the development of his cancer. Throughout the appeal, the Veteran submitted statements indicating his belief that his pancreatic cancer was caused by his active-duty service. Specifically, that his time at Camp LeJeune exposed him to contaminated water which led to his development of cancer. At the outset, the Board finds the evidence clearly establishes that the Veteran suffers from pancreatic cancer. Furthermore, the Veteran has competently and credibly described his service at Camp LeJeune, which has been verified through his personnel records, and exposure to contaminated water was in keeping with his active-duty responsibilities. Thus, what must be shown to establish the claim is that the Veteran's disability was medically related to the claimed exposure he endured during service. Whether such a relationship exists is a medical determination beyond the scope of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As for presumptive service connection, the preponderance of the evidence is against service connection for pancreatic cancer on a presumptive basis. Most notably, such is not listed as a chronic disease under 38 C.F.R. § 3.309 (a). Furthermore, there is no evidence of such within one year after military service. As previously noted, there are no diagnoses for, complaints of, or any symptoms associated with pancreatic cancer, or treatment for such during the Veteran's service or for several years after his discharge. The earliest evidence of an assessment of pancreatic cancer was in 1998. It is acknowledged that the Veteran is competent to give evidence about observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, may be credible regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). Here, however, any statements as to pancreatic cancer continuing immediately after service are not found to be persuasive in light of the persuasive medical evidence of record to the contrary. For these reasons, continuity of symptomatology has not been established, either through the medical evidence or through the Veteran's statements. Stated differently, pancreatic cancer, was not demonstrated during service, at separation, or within one year of separation. The findings of record are consistent with a diagnosis of pancreatic cancer but inconsistent with any possible allegation of continuity of symptomatology. Furthermore, there is no competent evidence linking the remote onset of pancreatic cancer to service. Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted. Rather the Veteran has alleged that his pancreatic cancer is the result of exposure to contaminated water from Camp LeJeune. As previously noted, the Veteran's personnel records reflect that he served for more than 30 days at Camp LeJeune between August 1953 and December 1987. Therefore, the Board has found that the Veteran had the requisite service at Camp LeJeune to recognize presumptive exposure to contaminated water. However, as the Veteran has been found to have pancreatic cancer, and as such is not a disease enumerated under 38 C.F.R. § 3.309 (f) as presumed to be due to contaminated water exposure, consideration of service connection for such disability on a presumptive basis as due to contaminated water is not warranted. However, this is not fatal to the Veteran's claim; he may nonetheless substantiate this theory of entitlement by presenting affirmative evidence of an etiological relationship between the Veteran's condition and his active-duty service, to include exposure to contaminated water at Camp LeJeune. Here, there are multiple conflicting examinations of record. While the April 2018 and February 2020 VA examiners did not find that the Veteran's pancreatic cancer was the result of his active-duty service, specifically his exposure therein, the March 2018 private examiner did. While the March 2018 and February 2020 examiners provided clear conclusions and medically sound and reasoned rationales, the April 2018 examiner, as previously discussed, failed to recognize the Veteran's pancreatic cancer diagnosis, and appears to have based his opinion on inaccurate dates of service. Therefore, the Board finds the March 2018, and February 2020 opinions probative, but not the April 2018 opinion. In sum, the record contains a competent opinion indicating that the Veteran's pancreatic cancer was caused by or related to his active-duty service, and an additional competent, seemingly equally probative opinion indicating that the Veteran's pancreatic cancer was not caused by or related to his active-duty service. As the medical opinion evidence on the question of nexus between the Veteran's pancreatic cancer and his active-duty service is, essentially, in relative equipoise, the Board finds that such evidence, collectively, indicates that it is at least as likely as not that the Veteran's pancreatic cancer was caused by or related to his active-duty service. In conclusion, the evidence shows that the Veteran has a diagnosis of pancreatic cancer, and medical and lay evidence showing a link between the Veteran's disability and his active-duty service. Therefore, based on the analysis above, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for pancreatic cancer, is warranted. The Board notes that, in reaching this conclusion, the evidence is at least in equipoise and the benefit of the doubt doctrine has been applied where appropriate. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Entitlement to service connection for periampullary cancer (claimed as stomach cancer) to include as secondary to service-connected pancreatic cancer and/or as due to contaminated water exposure at Camp LeJeune, is remanded. The Veteran contends that he suffers from periampullary cancer (claimed as stomach cancer) as a result of his active-duty service. Specifically, he contends that such was caused by his in-service exposure to contaminated water at Camp LeJeune. In the alternative, the Veteran contends that such was caused by or is related to his now service-connected pancreatic cancer. While the Veteran's service records are silent for any complaints, treatment or diagnosis of cancer, the Veteran's presumed exposure to contaminated water has been conceded. Furthermore, the Veteran was diagnosed in February 1999 with periampullary cancer. However, periampullary cancer is not among the enumerated diseases listed in 38 C.F.R. § 3.309 (f) as presumptively due to such exposure. Therefore, the presumptive provisions do not apply. However, as previously noted, such a finding is not fatal to the Veteran's claim; he may still establish service connection with affirmative evidence of a nexus between his periampullary cancer and his exposure to contaminated water or his service otherwise. The Board notes that the April 2018 examiner found that the Veteran had ampullary adenocarcinoma, but that such was less likely than not due to or caused by his "relatively minimal exposure" to contaminated water. As previously noted, the Board found this opinion to have little, if any, probative weight, for multiple reasons. First not only did the examiner fail to recognize the Veteran's pancreatic cancer diagnosis, but he also appears to have based his negative nexus opinion for the Veteran's ampullary adenocarcinoma on inaccurate information. The examiner found that the Veteran only served at Camp LeJeune for ten weeks (November 1953 to January 1954). However, the Veteran's actual service dates appear to be much longer, well over a year. Therefore, on remand an addendum opinion should be obtained with considers the entirety of the Veteran's service and provides an etiological opinion as to the Veteran's periampullary cancer (claimed as stomach cancer). In addition, the Board notes that there is no secondary service connection opinion of record. As the Veteran is now service connected for pancreatic cancer, an opinion which determines the relationship, if any, between the Veteran's pancreatic cancer and his periampullary cancer should be obtained. Therefore, on remand, the addendum opinion must not only consider direct service connection, but secondary service connection as well to include both the causation and aggravation prongs. In providing the requested opinions, the examiners should note that the mere fact that a condition is not noted by VA to be related to service at Camp Lejeune under 38 C.F.R. § 17.400, is not, in and of itself, a sufficient basis to deny service connection for that condition. See generally Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that it is inappropriate to "permit the denial of direct service connection simply because there is no presumptive service connection."). Rather, if the condition is linked to service or to exposure to contaminated water by probative medical opinion, service connection can be granted. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Obtain an addendum opinion from a suitably qualified examiner for the Veteran's periampullary cancer. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, and all medical opinions. The examiner is asked to opine as to whether the Veteran's diagnosed periampullary cancer is at least as likely as not (i.e. 50 percent or greater) etiologically or causally due to the Veteran's active-duty service, to include his presumed exposure to contaminated water at Camp LeJeune during service. The examiner must also opine whether the Veteran's diagnosed periampullary cancer is at least as likely as not (1) proximately due to the service-connected pancreatic cancer, or (2) aggravated by the service-connected pancreatic cancer. The examiner must discuss both prongs of secondary service connection, proximately due to AND aggravation. The examiner should specifically consider and discuss any newly obtained medical records as well as all other relevant medical opinions of record, and the Veteran's statements of in-service symptoms and symptoms since discharge, which are presumed credible until a medical basis state otherwise. All opinions offered must have thorough rationales. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.