Citation Nr: 22016267 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-05 737 DATE: March 21, 2022 ORDER Entitlement to service connection for lung cancer, to include as due to contaminated water exposure at Camp Lejeune, is denied. Entitlement to service connection for neurobehavioral effects, to include as due to contaminated water exposure at Camp Lejeune, is denied. Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran had at least 30 days of service at Camp Lejeune as established by official service department records and is presumed to have been exposed to contaminated water. 2. The Veteran's lung cancer was not caused by service, to include by presumed exposure to contaminants in the water supply at Camp Lejeune. 3. The Veteran's neurobehavioral effects, diagnosed as brain cancer, were not caused by service, to include by presumed exposure to contaminants in the water supply at Camp Lejeune. 4. The Veteran died in April 2016. The death certificate lists the immediate cause of death as metastatic lung cancer. 5. At the time of death, the Veteran had not been granted service connection for any disability. 6. The Veteran's death was not due to a service-connected disability and/or otherwise attributable to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer, to include as due to contaminated water exposure at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for neurobehavioral effects, to include as due to contaminated water exposure at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1953 to July 1954. He died in April 2016. The Appellant, his surviving spouse, was granted substitution and the appeal of service connection claims have therefore been continued. See December 2019 Correspondence. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2016 and September 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if the qualifying disease manifests to a compensable degree at any time after service in a veteran, former reservist, or a member of the National Guard, who has no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune in North Carolina, during the period from August 1, 1953, to December 31, 1987. 38 C.F.R. § 3.307(a)(7). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). For disabilities not presumed by regulation to be due to exposure to contaminated water at Camp Lejeune, the Veteran may still establish service connection by showing that any such disability is directly and causally linked to exposure to contaminated water at Camp Lejeune, or any other incident or injury in service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). 1. Entitlement to service connection for lung cancer In March 2016, the Veteran submitted an application seeking service connection for lung cancer and neurobehavioral effects. See March 2016 VA 21-526EZ Fully Developed Claim. In an associated statement, he claimed that his lung cancer resulted from exposure to contaminated water while stationed at Camp Lejeune. The Veteran's death certificate lists the immediate cause of death as lung cancer. As such, the first element (a current disability) has been met. As for the in-service element, service personnel records show that the Veteran served at Camp Lejeune for more than the required 30 days; therefore, the Board finds that the Veteran has met the threshold duration of service during the applicable time period required under 38 C.F.R. § 3.307(a)(7)(iii). He is presumed to have been exposed to contaminated water at Camp Lejeune. However, lung cancer is not a listed disability subject to presumptive service connection. Therefore, presumptive service connection based on exposure to contaminated water at Camp Lejeune is not warranted. Service connection may still be granted if the evidence is sufficient to establish service connection on a direct basis. See Combee v. Principi, 34 F.3d 1039, 1043 (1994). Service treatment records contain no complaints of or treatment for lung cancer or related symptoms. VA treatment records document a history of tobacco use. The Veteran reported smoking tobacco for 20 years, including cigars that he did not inhale, and that he quit smoking in the 1990s. See August 2013 VA Treatment Records. The first mention of lung cancer is contained in a February 2016 private pathology report when a diagnosis of lung cancer was noted. Subsequent VA treatment records document radiation treatment and palliative care. Notably, the Veteran and Appellant do not contend nor does the record suggest that the Veteran's lung cancer had an onset during service. Instead, they alleged that the Veteran's lung cancer disability was due to contaminated water exposure during service. A VA medical opinion was obtained in March 2016. The examiner opined that the Veteran's lung cancer was not caused by or a result of exposure to contaminated water at Camp Lejeune. As rationale, the examiner referenced medical records showing a long history of tobacco use and extensive scientific and medical literature that do not support a relationship between lung cancer and contaminated water exposure. Instead, the examiner attributed the Veteran's lung cancer to personal risk factors such as age, gender, past tobacco use, and civilian occupational history as a carpenter and mechanic. Occupational health literature showing an increased risk of cancer in these positions due to chemical and solvent use was noted. No other medical opinions are of record. The Board acknowledges the Appellant's contention that the Veteran never worked as a carpenter or mechanic. Instead, the Appellant has asserted that the Veteran worked as a heavy equipment operator and maintenance supervisor which are more "hands-off" occupations as opposed to a carpenter or mechanic. See November 2020 Appellate Brief. However, the Appellant's assertion conflicts with medical records that repeatedly note that the Veteran worked as a mechanic and in the construction industry. September 2009 VA clinic records document the Veteran's social history that he was retired but worked part-time driving senior citizens and repairing home equipment and lawn mowers. The Veteran reported that he worked "many years as a carpenter and for a construction company and was also a mechanic for" a town in New York. See also February 2011, June 2012, August 2013 VA Medical Records. In November 2011, the Veteran sought VA medical treatment for a right arm laceration that he attributed to cutting himself while performing upholstery work. The Board has considered the lay statements that the Veteran worked as a supervisor, but finds the repeated medical records documenting the Veteran's work history as a carpenter and mechanic more probative that the Appellant's contrary assertions. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In light of the foregoing, the Board finds that entitlement to service connection for lung cancer is not warranted. Specifically, the most probative evidence does not reflect that the Veteran's lung cancer was associated with his service, to include presumed exposure to contaminated water at Camp Lejeune. The Board finds persuasive the VA medical opinion, as it provided a well-reasoned rationale for the negative nexus opinion provided, cited to significant medical support, and contained a thorough review of the Veteran's medical history. Further, this opinion is supported by medical records showing a 20 year history of tobacco use. Finally, the Board acknowledges that the Veteran and the Appellant believed the Veteran's lung cancer was due to his exposure to contaminated water. Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran and Appellant have not established that they have specialized training rendering them competent to provide an opinion as to the etiology of the Veteran's lung cancer. Accordingly, as entitlement to service connection for lung cancer is not warranted, the claim is denied. 2. Entitlement to service connection for neurobehavioral effects The Veteran claimed to have neurobehavioral effects due to contaminated water exposure at Camp Lejeune. As for the current disability element, February 2016 VA treatment records document the Appellant's report that the Veteran had hallucinations and wandered at night. That same month, the Veteran was hospitalized for acute symptom management of altered mental status. Private hospitalization records document complaints of generalized weakness, confusion, and physical pain. The Veteran underwent magnetic resonance imaging tests of the brain resulting in an impression of metastatic disease (brain cancer). A current disability has been established. The Veteran is presumed to have been exposed to contaminated water at Camp Lejeune. However, brain cancer is not a listed disability. 38 C.F.R. § 3.309(f). The Board will now consider whether direct service connection is warranted for brain cancer. See Combee v. Principi, 34 F.3d 1039, 1043 (1994). The first mention of neurobehavioral effects is contained in February 2016 private medical records when the Veteran was hospitalized for acute symptom management of altered mental status. Clinical tests showed an impression of brain metastases. February 2016 VA medical records document the Appellant's request for the Veteran to receive palliative care for "lung liver and spine w[ith] suspected brain mets[tases]." Prior to this, there is no mention of brain cancer in service or post-service treatment records. Indeed, the Veteran and Appellant have not submitted or identified any medical evidence indicating a nexus to service. As stated above, the Veteran and Appellant are not competent to provide an opinion that contaminated water exposure resulted in neurobehavioral effects or brain cancer. Without such evidence, VA's duty to provide the Veteran with a VA examination or opinion on direct service connection is not triggered, as there is no association between the Veteran's presumed contaminated water exposure and his diagnosed brain cancer. The Veteran's representative has stated that the Veteran was treated in service for headaches which is a symptom of a neurobehavioral effect and references VA clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation. However, this report does not link brain cancer to contaminated water exposure. The report indicates that headaches may result from acute exposure to solvents, but also that headaches may be one symptom, among others, resulting from neurasthenia. In this case, the Veteran was not diagnosed with neurasthenia. In short, the report does not suggest that there is a relationship between the Veteran's disability and service. The Board has carefully considered the Court's language in McLendon that the threshold for showing this association is a low one. However, the Court's language makes it clear that there is in fact a threshold. Here, the record is also lacking any evidence of a nexus. Only the appellant's contentions provide any suggestion an association between the Veteran's disability and service, and Board does not find the appellant's contentions to rise to the level of the 'indication of an association' referred to in 38 U.S.C. § 5103A or in McLendon. Although lay statements may be sufficient to establish an indication that the disability or symptoms may be related to service, there are some instances in which the lay evidence falls short of satisfying this standard. See Colantonio v. Shinseki, 606 F.3d 1378 (2010). In this case, the Board finds that the appellant's statements linking the disability to service do not satisfy the 'indication of an association' element. These statements are entitled to no probative value because they are conclusory generalized statements. The appellant is also not competent to report that the Veteran's in-service contaminated water exposure resulted in his brain cancer. This is because the etiology of brain cancer is a complex medical decision that requires expertise to determine, unlike disorders such as flat feet, varicose veins, and ringing in the ears which are capable of lay observation. Based on the foregoing, the probative evidence is against a finding that the Veteran's neurobehavioral effects, diagnosed as brain cancer, was related to his active service. As such, service connection is denied. 3. Entitlement to service connection for the cause of the Veteran's death The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The Veteran died in April 2016, at the age of 81. His death certificate lists the immediate cause of death as metastatic lung cancer. An autopsy was not performed. The manner of death marked was natural cause. Pursuant to this decision, service connection for lung cancer has not been established. In summary, service connection for lung cancer, listed as the immediate cause of the Veteran's death, is denied. Further, there is no contention or medical evidence suggesting that another disability was the principal or contributory cause of the Veteran's death. Based on the foregoing, the claim for service connection for the cause of the Veteran's death is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Appellant a favorable decision. See 38 U.S.C. §§ 1310, 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.312. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.