Citation Nr: 22017015 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 13-31 472A DATE: March 23, 2022 ORDER Service connection for prostate cancer, to include its residuals, is granted. FINDING OF FACT 1. The Veteran was stationed at Camp Lejeune from April 1974 to September 1975, and as a result, is presumed to have been exposed to contaminated water. 2. The Veteran's prostate cancer was incurred in service. CONCLUSION OF LAW The criteria for service connection for prostate cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to January 1994, to include service in the Southwest Asia theater of operations. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2012 and September 2013 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). Jurisdiction of the Veteran's claims file currently resides with the Louisville, Kentucky RO. In March 2017, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. In November 2017, November 2020, and March 2021, the Board remanded the issues of service connection for sleep apnea and service connection for prostate cancer. Following the March 2021 Board decision and remand, a VA RO issued a rating decision in November 2021 granting service connection for obstructive sleep apnea. Additionally, the RO granted entitlement to a TDIU effective May 12, 2013. The Board finds that this grant of service connection constituted a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Accordingly, the issue of service connection for obstructive sleep apnea is no longer in appellate status. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). 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 or PERC), 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 they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on 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, in fact, 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, 1042 (Fed. Cir. 1994). There are two issues to determine if service connection is warranted in this claim on a presumptive basis: whether the Veteran had no less than 30 days of service at Camp Lejeune and whether the Veteran's cause of death was due to an enumerated disease associated with exposure to contaminated water at Camp Lejeune. The record reflects the Veteran was stationed at Camp Lejeune during active service from April 1974 to September 1975. Therefore, the Board finds the Veteran met the threshold duration of service during the applicable time period required under 38 C.F.R. § 3.307(a)(7)(iii). Next, the Board notes that diagnoses and treatment for prostate cancer and its residuals, are confirmed by post-service treatment records. The Veteran was first diagnosed with prostate cancer in 2000 and treated with radiation therapy. As prostate cancer is not a disease presumed by regulation to be due to exposure to an herbicide, the outcome of the case, therefore, turns on whether prostate cancer is in fact, directly and causally linked to the Veteran's presumed exposure to contaminated water. In this regard, pursuant to the November 2020 Board remand, a VA opinion was obtained in December 2020. The December 2020 examiner opined that the Veteran's prostate cancer was less likely than not related to service. She reasoned that the Veteran did not have service in the Republic of Vietnam, that there was no evidence the Veteran had prostate cancer during military service, and that there was no evidence the Veteran's prostate cancer was the result of in-service exposures to environmental hazards in Southwest Asia. The Board finds that this opinion is inadequate as it is supported only by a conclusory rationale based solely on lack of treatment records for prostate cancer and lack of service in the Republic of Vietnam. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Another opinion was obtained that same month. The other December 2020 examiner opined that the Veteran's prostate cancer was less likely than not related to the Veteran's exposure to contaminated water ar Camp Lejeune. He reasoned that the scientific literature found an increased risk of prostate cancer among occupations exposed to chronic, high levels of volatile organic compounds (VOCs), but poor correlation otherwise. The examiner also referenced that the Agency for Toxic Substances and Disease Registry (ATSDR) assessment of evidence for the drinking water contaminants at Camp Lejeune with respect to prostate cancer cited 'below equipoise evidence for causation' for TCE, PCE or vinyl chloride exposure and that the study classified prostate cancer as a disease of secondary interest. Significantly, he did not define what constitutes "chronic, high level" exposure to VOCs, particularly as the Veteran was exposed at Camp Lejeune over a consecutive 17-month period. The examiner also discussed that the Veteran had several risk factors for prostate cancer including African American ethnicity (relative risk 2.2), smoking (relative risk 1.09), obesity, and numerous genitourinary infections while in service, but did not address what role, if any, the in-service genitourinary infections contributed to the Veteran's development of prostate cancer. Accordingly, the Board finds that the December 2020 and January 2021 medical opinions to be inadequate for adjudicative purposes. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board remanded for another opinion. Pursuant to the March 2021 remand, another opinion was obtained in September 2021. In rendering a negative nexus opinion, the VA clinician reasoned that ATSDR data does not identify any association between prostate cancer and exposure to Camp Lejeune contaminated water and that the Veteran had major risk factors for prostate cancer, such as African American ethnicity, smoking, obesity, alcohol use "and others." However, the VA clinician also indicated that ATSDR concluded that "there is some evidence for a positive association between TCE and prostate cancer" but that "the findings from the cohort and case-control studies are mixed with several studies finding no elevated risk" and that ATSDR concluded that there was below equipoise evidence for causation for TCE and prostate cancer. ATSDR data also concluded that there was insufficient evidence to determine whether an association exists between PCE exposure and prostate cancer and that there was below equipoise evidence for causation for PCE and vinyl chloride and prostate cancer. The VA clinician also reasoned that the Veteran had rather short-term exposure to contaminated water of one year and five months and that the Veteran's risk factors were present longer than the time he was exposed to contaminated water. The VA clinician also determined that the Veteran's history of recurrent urinary tract infections is also associated with prostate cancer but did not address the fact that the Veteran has an in-service history of recurrent genitourinary infections and whether prostate cancer is related to service due to these infections. The Board notes that the September 2021 VA clinician premised his opinion upon how long the Veteran was stationed at Camp Lejeune and risk factors. 38 C.F.R. § 3.307, however, does not consider nor weigh the duration beyond 30 days against the Veteran's claimed exposure to contaminated water. Rather, 38 C.F.R. § 3.307 focuses primarily upon whether the Veteran served at Camp Lejeune during the relevant period for the requisite number of days, and whether the Veteran was diagnosed with an enumerated disability under the regulation. As such, the Board accords the September 2021 VA opinion little probative weight. An addendum opinion was obtained in January 2022. In rendering a negative nexus opinion that the Veteran's prostate cancer was less likely than not related to numerous in-service genitourinary infections during service, the VA clinician reasoned that the medical literature does not show that there is a direct causal effect between the development of prostate cancer and epididymitis but did not discuss said studies. As this rationale is conclusory in nature, the Board accords the opinion little probative weight. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Nevertheless, the Board further notes that the medical literature referenced in the December 2020 and September 2021 medical opinions states that "environmental risk factors such as occupational exposure to VOCs has been investigated for association towards the development of prostate cancer" and that "epidemiologic evidence suggests an association between chronic exposure to TCE and prostate cancer." The December 2020 examiner also noted that "occupational exposure to PCE was shown to increase risk of prostate cancer in a Montreal-based study for men with a median age of 64." The examiner further concluded that "collectively, the available literature appears divided with regards to the statistically significant risk of prostate cancer following occupational exposure to VOCs, particularly TCE." The September 2021 VA clinician also concluded that that there was some evidence for a positive association between TCE and prostate cancer. The Board finds that the referenced ATSDR studies demonstrate a suggestive relationship between the Veteran's prostate cancer and exposure to contaminated water at Camp Lejeune. The accepted medical literature indicates that TCE, PCE, benzene, and/or vinyl chloride are Camp Lejeune contaminants with positive associations with prostate cancer. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Notably, the favorable and unfavorable evidence need not be in equipoise in order to resolve doubt in the Veteran's favor. Rather, the evidence need only be in approximate balance. The Board finds that to be the case here. Therefore, resolving doubt in the Veteran's favor, the Board finds that the Veteran's prostate cancer was caused by contaminated water exposure at Camp Lejeune, and the claim of entitlement to service connection for prostate cancer is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.