Citation Nr: 22044553 Decision Date: 08/05/22 Archive Date: 08/05/22 DOCKET NO. 17-29 860 DATE: August 5, 2022 ORDER Entitlement to service connection for rectal cancer (claimed as colon cancer) due to exposure to contaminated water at Camp Lejeune is denied. FINDING OF FACT The Veteran's rectal cancer did not initially manifest during his service or for many years after it concluded and is not otherwise shown to be the result of his service, including from exposure to contaminated water at Camp Lejeune, North Carolina. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for rectal cancer. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(7), 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1980 to May 1984. He testified in support of this claim during a May 2021 hearing before the undersigned Veterans Law Judge of this Board. A transcript of the proceeding is of record. In July 2021, the Board remanded this claim back to the Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), for further development and consideration that especially included requesting any additional evidence from the Veteran tending to support his claim, such as the medical treatise article or resource that he had identified and had read from during his hearing. The remand also was to then have him undergo another VA compensation examination for still more medical comment concerning the etiology of his rectal cancer especially in terms of its posited relationship or correlation with his military service and exposure to contaminated drinking water at Camp Lejeune. In the event the Veteran could not be reexamined, physically, the Board explained this additional medical comment could be provided based on review and consideration of the relevant evidence in the claims file. There since has been the required compliance certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service connection is granted for disability resulting from disease or injury incurred in or aggravated during active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of relevant injury or disease, and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases including malignant (cancerous) tumors, may be presumptively service connected if they manifested to a degree of 10 percent or more within one year of the Veteran separating from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Also, pursuant to 38 C.F.R. § 3.303(b), if a chronic disease according to § 3.309(a), a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). As well, Veterans who, during active service, had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed to contaminants in the water supply during such service, unless there is affirmative evidence of non-exposure. 38 C.F.R. § 3.307(a)(7)(iii). "Contaminants in the water supply" means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, which were in the on-base water-supply systems located at U. S. Marine Corps Base Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7)(i). If a Veteran was exposed to contaminants in the water supply at Camp Lejeune during the prescribed period, certain enumerated diseases shall be presumptively service connected even where there is no record of such disease during service, provided that the disease has manifested to a compensable degree at any time since service and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. 38 C.F.R. §§ 3.307(a)(7)(ii), 3.309(f). These enumerated diseases are kidney cancer, liver cancer, non-Hodgkin's lymphoma (NHL), adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f)(1)-(8). Exposure to contaminants in the water supply at Camp Lejeune constitutes an "injury" for purposes of VA benefits. 38 C.F.R. § 3.307(a)(7)(iv). Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. See VBA Training Letter 11-03 (Revised) (November 29, 2011) (citing the National Academy of Sciences' (NAS') National Research Council (NRC)'s report, "Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects."). Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These fourteen diseases are: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. The Veteran contends that his rectal cancer stems from exposure to contaminated water while he was stationed at Camp Lejeune. He has proffered no theory of entitlement to service connection for his rectal cancer except as due to exposure to contaminated water at Camp Lejeune. But for the following reasons and bases, the Board finds that service connection for his rectal cancer is not warranted. The Veteran's military personnel records confirm that he served at Camp Lejeune for at least 30 days during his active-duty service. He received a diagnosis of rectal cancer as early as in May 2015. See Colonscopy Report; Surgical Pathology Report. However, rectal cancer is not amongst the enumerated diseases in 38 C.F.R. §§ 3.307 and 3.309 that are presumptively associated with exposure to contaminated water at Camp Lejeune, even accepting that it occurred. Therefore, his rectal cancer cannot be presumed to be related to that. But, as the Board also explained when remanding this claim, it is still permissible in this circumstance for him to establish this required causation, instead, on a direct correlation basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). But partly based on the additional medical opinion obtained on remand, the Board finds that the evidence weighs against this claim and even this other notion. There is no probative (meaning competent and credible) evidence the Veteran's rectal cancer is directly related to any event or injury during his service, including to exposure to contaminated water at Camp Lejeune. During his May 2021 hearing before this Board, the Veteran reported experiencing possible early symptoms of rectal cancer beginning in 1987, about 3 years following his separation from service and about 6 years since exposed to contaminated water at Camp Lejeune. He also testified that he was told he had polyps, and that he had a change in bowel movements, rectal itching, and bleeding, etc., but that he initially thought it was just because of hemorrhoids, plus, he was just a young adult at the time so did not make very much of it. But now, in hindsight, he believes that was an early indication of his rectal cancer even though it was not until later diagnosed following a colonoscopy. The remainder of his hearing testimony concerned how his life since has changed because of that diagnosis and the treatment he resultantly has had to receive as remediation. Notably, his service treatment records (STRs) are grossly unremarkable for any diagnosis, symptoms, or treatment of rectal cancer. The earliest-dated clinical record of rectal cancer is not for more than 35 years after his separation from service. See May 2015 Colonscopy Report; May 2015 Surgical Pathology Report. While not altogether dispositive, that long a lapse of time between his separation from service and the earliest documentation of this now claimed disability is a factor tending to weigh against his claim of entitlement to service connection for his rectal cancer. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). But service connection is still allowable in this circumstance of initial diagnosis after service, provided the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Here, though, there is still other probative evidence in the file against finding that the Veteran's rectal cancer is causally related to any event, injury, or disease during his service. Specifically, the VA medical examination and opinion obtained on remand in February 2022 and the April and May 2022 addendum medical opinions are probative evidence weighing against this claim. The February 2022 examiner opined that the Veteran's rectal cancer is less likely than not related to his service or due to exposure to contaminated water at Camp Lejeune. Notably, he served approximately 16 months at Camp Lejeune, a relatively short period of time. He reported experiencing gastrointestinal complaints such as diarrhea, bleeding, and rectal itching in 1987, about 3 years following his separation from service. However, these symptoms could represent a whole host of gastrointestinal problems that would require further treatment or exploration to determine their cause, but by no means according to that examiner are they specifically pathognomonic for colorectal cancer. The Veteran reported that, at the time, he attributed his symptoms to hemorrhoids and treated empirically with medication. But it was not until a colonoscopy in 2015 that colon polyps were discovered, and rectal cancer diagnosed. Agency for Toxic Substances and Disease Registry (ATSDR) data does not support an association between contaminated water at Camp Lejeune and rectal cancer. Rectal cancer is quite common, and many cases are idiopathic in nature. However, the Veteran has several risk factors, including advanced age, alcohol use, being overweight, and poor diet (reflected by his high triglyceride levels). Although he has submitted several articles in support of his claim, notably, the ATSDR report does not state that a cause-and-effect relationship exists, let alone an association between contaminated water and rectal cancer. In the April 2022 addendum medical opinion, the examining clinician further opined that the article submitted by the Veteran discussing TCE-contaminated water in Massachusetts only notes people with long-term exposure. Conversely, his time at Camp Lejeune was rather comparatively short. The article also does not present information on what level of TCE was present in the drinking water as opposed to those levels at Camp Lejeune and does not provide any sort of definitive information regarding a cause-and-effect relationship between TCE exposure and colon/rectal cancer, nor even an association. A different opining clinician provided an additional addendum medical opinion in May 2022. This still additional clinician agreed the Veteran's rectal cancer is less likely than not related to his service or due to exposure to contaminated water at Camp Lejeune. Notably, his STRs do not mention any complaints of rectal itching or bleeding. He endorsed that his symptoms began in 1987 and reported having polyps that he erroneously attributed to possible hemorrhoids and treated as such. However, polyps were not actually visualized until the colonoscopy in May 2015. Without prior imaging or testing there is no way to concretely affirm that polyps were present prior to that date, and with no objective work-up at the time, the presence of hemorrhoids cannot be ruled out. Although it has been established that the Veteran was exposed to contaminated water during his time at Camp Lejeune, there is no indication that the later post-service subjective reports of rectal bleeding and itching can be attributed to that specific exposure. Regarding the article submitted by him about the link between colorectal cancer and drinking water, it does not demonstrate causation nor discuss the main known contaminants proven to be found at Camp Lejeune. Therefore, according to this examiner, given the lower duration of Camp Lejeune water exposure, the lack of medical literature definitively linking low-dose contaminated water exposure with rectal cancer, the lack of treatment of symptoms in the Veteran's STRs, and his increased risk for rectal cancer due to his age, weight, alcohol use, and poor diet, his rectal cancer is less likely than not related to his military service, including to exposure to contaminated water at Camp Lejeune. All these opining VA clinicians, so without exception, clearly disassociated the Veteran's unfortunate rectal cancer from his time in service, including from exposure to contaminated water at Camp Lejeune. And it is especially noteworthy that these commenting VA examiners provided the required explanation (underlying reasoning or rationale) for their opinions and, in so doing, readily acknowledged his lay statements regarding what he believes is the origin of his rectal cancer and even being exposed to contaminated water at Camp Lejeune. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In making its determination, the Board also has considered the Veteran's personal statements in support of his claim. He is competent to report on matters observed or within his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he has not conversely been shown to possess any pertinent medical training or credentials that would make him competent to establish that his rectal cancer dates back to his service or is otherwise related or attributable to his military service, including to exposure to contaminated water at Camp Lejeune. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than his lay contentions because the condition at issue is complex, not instead simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining that the determination of whether medical versus lay evidence is needed to support a claim is fact specific (i.e., a case-by-case judgment), based on the specific type of condition being claimed, including in terms of whether it is simple or instead complex); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Accordingly, the Board finds that the elements of service connection have not been met. The most probative (meaning most competent and credible) evidence, particularly the medical evidence, does not show the Veteran's rectal cancer is attributable to his service, including especially to exposure to contaminated water at Camp Lejeune. 38 C.F.R. § 3.303, 3.307. Therefore, in conclusion, the Board finds that this claim for service connection for rectal cancer must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This is not a situation where the evidence for versus against this claim is in "approximate" (meaning nearly equal) balance, i.e., relative equipoise, so there is no reasonable doubt to resolve in the Veteran's favor. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, C. 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.