Citation Nr: 22017751 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 16-43 164 DATE: March 26, 2022 ORDER Entitlement to service connection for a miscarriage, to include as secondary to exposure to contaminated water at Camp Lejeune is denied. Entitlement to service connection for cervical cancer, to include as secondary to exposure to contaminated water at Camp Lejeune is denied. Entitlement to service connection for a pre-cancerous breast mass, to include as secondary to exposure to contaminated water at Camp Lejeune is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to exposure to contaminated water at Camp Lejeune is remanded. FINDINGS OF FACT 1. The Veteran was stationed at Camp Lejeune from December 1977 to June 1979 during her active service and is presumed to have been exposed to contaminants in the water supply therein. 2. A miscarriage did not manifest in service, or within one year of separation, and is not related to service. 3. Cervical cancer did not manifest in service, or within one year of separation, and is not related to service. 4. The Veteran does not have a pre-cancerous breast mass condition which was incurred in or otherwise related to her active service CONCLUSIONS OF LAW 1. A miscarriage was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). 2. Cervical cancer was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). 3. A pre-cancerous breast mass was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to June 1979. This matter was previously remanded by the Board of Veterans Appeals (Board) in May 2019 for additional development. It now returns for further appellate review. Service Connection 1. Entitlement to Service Connection for a Miscarriage The Veteran seeks service connection for a miscarriage which she contends was caused by the water contamination at Camp Lejeune. See March 2015 VA Form 21-526EZ, Fully Developed Claim. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to establish presumptive service connection for Veterans, former reservists, and former National Guard members who served at the U.S. Marine Corps Base Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during the period between August 1, 1953 and December 31, 1987, and who have been diagnosed with any of the following eight diseases: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin's lymphoma; and Parkinson's disease. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. Relevant Facts and Analysis The Veteran's private medical records from June 1997, indicate that she reported a spontaneous miscarriage in 1994. See June 1997 Florida Physicians Medical Group Treatment Record. The Veteran also called the VA in March 2014 and stated she had an abortion in 1996. See March 2014 VA Primary Care Administrative Note in CAPRI received August 2019. The Veteran is competent to report the symptoms and medical problems she experienced. Her statements are credible. Thus, based on the Veteran's statements to medical providers that she had a miscarriage and medical records documenting such, the Board finds evidence of a current disability. Accordingly, the first element of service connection has been met. Turning to the second element of service connection, an in-service injury or event, the Board notes that the Veteran's service treatment records (STRs) are silent for treatment or complaint of a miscarriage during service. See STR-Medical. However, the Board acknowledges that the Veteran's personnel records indicate that she was stationed at Camp Lejeune from December 1977 to June 1979; as a result, exposure to contaminated water is conceded. Thus, the second element of service connection has been satisfied. Significantly, a miscarriage is not one of the diseases presumed to be related to exposure to contaminated water at Camp Lejeune. 38 C.F.R. § 3.309. The absence of a disease from the presumptive list does not, however, preclude a Veteran from otherwise proving that her disability resulted from exposure to contaminated water at Camp Lejeune. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct basis. The central issue in this case is whether the miscarriage the Veteran experienced is related to exposure to contaminated water at Camp Lejeune. On this question, the January 2020 VA examiner opined that the miscarriage was less likely than not related to or caused by the water contamination at Camp Lejeune. See January 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). The examiner notes that the Veteran was stationed at Camp Lejeune until June 1979 and gave birth in November 1979 and in 1987. She further states that the Veteran was on birth control on and off since the age of 17 to 41. Additionally, the record does not contain any pap examinations prior to 1997. The 1997 pap examination was abnormal and indicated cervicitis, positive human papillomavirus (HPV), and cancer in suite of cervix. The Veteran was also diagnosed with hypothyroidism. The examiner considered the Veteran's history of drinking contaminated water at Camp Lejeune, but noted that the Veteran had two full term pregnancies afterwards and that there was "other possible causes of her miscarriage, 17 years after she left Camp Lejeune, such as Cervicitis/+HPV, [cervical cancer], hypothyroidism, and on and off use of [birth control pills.]" Id. The Board accepts the January 2020 VA examiner's opinion that the miscarriage the Veteran experienced is less likely than not related to her exposure at Camp Lejeune as highly probative medical evidence on this point. The Board notes that the examiner rendered her opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). The Board has considered the Veteran's lay assertions that the miscarriage she experienced caused by contaminated water supplies at Camp Lejeune during service. However, the Veteran is not shown to have specialized medical education, training, or experience necessary to provide a competent medical opinion as to etiology of a miscarriage. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, these assertions are inconsistent with the VA examiner's findings which were supported by medical and scientific literature, as well as the examiner's subject matter medical expertise. Additionally, the examiner provided credible causal explanations for the cause of the miscarriage, to include that of hypothyroidism, positive HPV, cervicitis, and on and off use of birth control pills. The Board accords great weight to the VA examiner's opinion, as the examiner was informed by the Veteran's service and post-service medical records and pertinent medical literature. Thus, the Board finds the medical evidence to be more probative than the Veteran's assertions. As a result, the Board finds that the weight of the evidence shows that the miscarriage the Veteran experienced is not related to her exposure to contaminated water at Camp Lejeune. The Board notes that the Veteran referred to the fact that the Camp Lejeune Families Act of 2012 lists miscarriage as one of the conditions for which VA will provide free medical care or reimbursement for medical care for veterans and family members at Camp Lejeune during the presumptive period. See May 2019 Appellate Brief. To the extent that the Veteran argues that service connection should be granted because VA will provide medical care for a condition, the Board notes that the Camp Lejeune Families Act does not list miscarriage as a presumptive condition for which benefits will be provided. As such, the fact that VA will provide medical care does not equate to finding that it is a presumptive condition. Having considered the entirety of the evidence of record, there is no medical evidence linking the miscarriage the Veteran experienced to service and there is nothing in the record which suggests a history of a miscarriage dating back to service. The more probative evidence establishes that she did not have a miscarriage during service or within one year of separation. Furthermore, the evidence establishes that the remote onset a miscarriage, approximately 27 years after service, is unrelated to service, to include exposure to contaminated water. As such, the Board finds that the weight of the evidence, which is not in approximate balance, is against the claim, and it must be denied. Thus, the claim entitlement to service connection for a miscarriage is denied. 2. Entitlement to service connection for Cervical Cancer The Veteran seeks service connection for cervical cancer which she contends was caused by her exposure to contaminated water at Camp Lejeune. See March 2015 VA Form 21-526EZ, Fully Developed Claim. The first element of service connection has been met because the Veteran was diagnosed with cervical cancer in a December 1997 biopsy. See December 1997 Florida Pathology Laboratory Surgical Pathology Report. While the Veteran's STRs are silent of signs, symptoms, complaints, or treatment of cervical cancer, the Veteran's exposure to contaminated waters at Camp Lejeune has been conceded. As such, the second element of service connection has been met. The issue before the Board is whether there is a nexus i.e., link between the Veteran's cervical cancer and her Camp Lejeune exposure to containments. There are two medial opinions against finding a medical nexus. First, an October 2014 VA examiner, who is a subject matter expert and panel member for Camp Lejeune Contaminated Water (CLCW) Project provided a negative nexus opinion. See October 2014 VA Medical Opinion DBQ. The examiner states that the Veteran was diagnosed with cervical cancer at age 42, which was 19 years and four months after being stationed at Camp Lejeune. He notes two scientific studies which found no significant increased risk of cervical dysplasia or cancer associated with TCE exposure. He also indicates that cervical cancer was rare in young women. Specifically, the examiner provided the following opinion and rationale: [T]his Veteran having been 42 at onset of cervical [cancer] i.e., early middle aged, if carcinogenicity from CLCW toxins was the 50 % putative (50% or greater cause) of her [cancer] then statistically she should have been expected to fall into the younger age category thereby being a statistical 'outlier' for the overall incident (age related) of this disease rather than beginning 20 years post exposure. See October 2014 VA Medical Opinion DBQ. The examiner also reports that there were few studies that isolated trichloroethylene exposure for cervical cancer. However, he notes that considering all four CLCW contaminates were carcinogenic to varying degrees, the Veteran did not fall into the younger age category which suggested that "aging process alone was responsible" for the development of cervical cancer. Id. The Board affords significant probative weight to October 2014 medical opinion because the examiner is a subject matter expert on Camp Lejeune Contaminated Water project. An expert in this matter, the examiner is well-versed on the relevant medical research and studies and is knowledgeable about the relationship between the CLCW containments and the Veteran's claimed condition. Importantly, he provided a well-reasoned and detailed medical opinion based a review of the Veteran's claims file and his expertise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also notes that the Veteran argued that the October 2014 VA examiner only considered a single Camp Lejeune toxin. See May 2019 Appellate Brief. However, the examiner discussed four (4) carcinogens at Camp Lejeune but found that the Veteran's cervical cancer was unrelated to any of those toxins but rather due to aging. As such, the Veteran's objection to this medical opinion does not negate its great probative value. Pursuant to the May 2019 Board remand, VA obtained another medical opinion in January 2020. Based on an examination of the Veteran, and a review of the pertinent medical evidence, the examiner opined that the Veteran's cervical cancer was less likely than not related to Camp Lejeune contamination. See January 2020 VA Medical Opinion DBQ. The examiner reasoned that HPV is a very common cause of cervical cancer and more likely the cause of the Veteran's cervical cancer. The Board also affords probative weight to the January 2020 VA examiner because her opinion was based on examination of the Veteran and review of the relevant medical evidence. Additionally, the examiner provided another etiology for the Veteran's cervical cancer that was supported by adequate rationale. Taken together the October 2014 and January 2020 VA medical opinions collectively opine that the Veteran's cervical cancer was less likely than not related to her exposure to contaminated water at Camp Lejeune but rather due to other factors such as aging process and positive HPV. The Board considered the Veteran's credible lay statements in support of her claim. She is competent to report her symptoms and experiences as they come through her perception. However, while she sincerely believes that her cervical cancer was caused by her exposure to contaminated water at Camp Lejeune, this is a medical opinion that the Veteran as a lay person is not competent to provide. See Jandreau v. Nicholson, 492 F.3d 1372. As such, the Veteran's lay statements are outweighed by the probative VA medical opinions from October 2014 and January 2020. The Board is grateful to the Veteran for her service, and regrets that it cannot render a favorable decision in this matter. Thus, based on the foregoing, the weight of the evidence, which is not in approximate balance, is against the claim for service connection for cervical cancer to include as due to Camp Lejeune water contamination. Accordingly, the claim for service connection must be denied. 3. Entitlement to service connection for pre-cancerous breast mass The Veteran seeks service connection for a pre-cancerous breast mass. See August 2016 VA Form 9. Specifically, she states "mammogram revealed scattered fibroglandular densities. Id. Upon review of the evidence, the Board finds a lack of a current disability. While the Veteran's VA treatment records note a history of abnormal mammogram. See i.e., May 2014 VA Emergency Department Clinician Note in CAPRI received August 2019. The evidence of record does not contain the abnormal mammogram finding since the Veteran filed a claim in March 2014. Second, the mammograms during the appeal period from May 2017, August 2018, and September 2019 were normal. See May 2017 VA Mammography Letter in CAPRI received September 2017; August 2018 VA Mammography Screening in CAPRI received June 2019; September 2019 VA Addendum in CAPRI received December 2019. Notably, during an October 2013 appointment to establish VA care, the Veteran reported that she was told at her last mammogram four years ago (2009) that she had cancer and that she drank vinegar and frankincense, and all masses were gone. See October 2013 VA Women's Health Note in CAPRI received August 2014. During the January 2020 VA examination, the Veteran reported that multiple lumps were found on her bilateral breasts a few years ago, she also reported she had a benign stereotactic core biopsy in 2009. She further states she was "advised by a Mountain man to drink apple cider vinegar daily [] and her breast lumps disappeared." Id. See January 2020 VA Medical Opinion DBQ. The examiner notes that the Veteran's breast biopsy did not indicate a pre-cancerous lesion and that the two mammograms from 2018 and 2019 were negative for malignancy. Id. The Board finds that the January 2020 VA examination report and VA treatment records are probative evidence that the Veteran does not have a current pre-cancerous breast mass. The Veteran's statements during the examinations and treatment attest that she had a history of abnormal mammogram in 2009, prior to filing the instant claim. However, during the appeal period the Veteran's mammograms have been normal and the Veteran has reported that her breast mass disappeared. Additionally, the Veteran has not reported any symptoms or pain resulting in functional loss associated with a pre-cancerous breast mass. As such, the evidence fails to demonstrate a current disability or pain resulting in functional loss associated with a pre-cancerous breast mass. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Veteran has therefore not met her burden of showing that she has current pre-cancerous breast mass disability for VA purposes. The current disability element of a service connection claim may be defined broadly, see 38 U.S.C. § 1701 (1) ("The term 'disability' means a disease, injury, or any other physical or mental defect"), and need not be shown at the time of the Board decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim; Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the evidence of record does not demonstrate that the Veteran has had a disability related to a precancerous breast mass at any time during the course of the appeal since March 2014. She has thus failed to establish an essential element of this service connection claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). Based on the foregoing, the weight of the evidence is against the claim of entitlement to service connection for pre-cancerous breast mass. The benefit of the doubt doctrine is therefore not for application, and the claim for service connection for a pre-cancerous breast mass must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for COPD is remanded. Upon review, the Board finds that a remand is warranted to obtain a new VA examination and medical opinion for the Veteran's COPD claim. The January 2020 VA examiner in providing a negative nexus opinion for the Veteran's COPD, that the Veteran's current chest X-ray did not show COPD, and that she had no symptoms of COPD. See January 2020 VA Medical Opinion DBQ. However, the Veteran's VA examination indicates a diagnosis of COPD since 2016. See January 2020 VA Respiratory Conditions DBQ. The chest X-ray taken in connection with VA examination indicated no active pulmonary disease. Id. Additionally, the Veteran's active problem list from July 2021 indicates COPD is a current active medical condition. See July 2021 VA Problem List in CAPRI received July 2021. Thus, considering the above evidence, it is unclear whether the Veteran has a current diagnosis of COPD, or whether it resolved. Additionally, the VA examiner did not provide an etiology opinion for her claimed COPD, and whether it was related to or caused by her active service to include her Camp Lejeune exposure to contaminated water. For these reasons, the Board finds that the January 2020 VA examination does not provide the necessary information to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007)(When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate.) Accordingly, the claim is remanded for a new VA examination and medial opinion regarding the nature and etiology of the Veteran's claimed COPD. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory condition, to include COPD. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. Any and all studies, tests, and evaluations deemed necessary, to include pulmonary function tests (PFTs), chest x-rays, and CT scan, by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner is asked to: 2. Identify whether the Veteran has, or has had at any point during the pendency of this appeal (i.e., since March 2014), a diagnosed respiratory disorder, to include COPD. (a.) In answering this question, the examiner must consider and discuss the Veteran's May 2014 chest X-ray and medical results and impressions from this X-ray and the July 2021 VA active problem list, and the January 2020 VA examination report. 3. For each respiratory disorder diagnosed, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include water contamination at Camp Lejeune. 4. Assuming that the standard is at least as likely as not, is it possible that the Veteran's current respiratory disability could be related to or caused by the in-service exposure to water contamination at Camp Lejeune? 5. Are the Veteran's assertions that her current respiratory disability was caused by her in-service exposure to water contamination at Camp Lejeune consistent with medical knowledge or implausible? 6. Do the Veteran's reports that her in-service exposure to water contamination at Camp Lejeune align with how the Veteran's respiratory disability is known to develop? 7. Whether it is medically feasible that her current respiratory disability was caused by her in-service exposure to water contamination at Camp Lejeune? (a) If not, state why not and on what basis this conclusion was made. (b.) If so, state why and on what basis this conclusion was made. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner should also be aware that in rendering an opinion, it must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 7. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.