Citation Nr: 22045488 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 19-35 243 DATE: August 11, 2022 ORDER Entitlement to service connection for breast cancer, to include as due to exposure to contaminants in the water supply at Camp Lejeune, is granted. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran's breast cancer is related to his exposure to contaminants in the water supply at Camp Lejeune. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for breast cancer have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1983 to June 1987. He testified at a hearing before the undersigned in March 2022. A transcript is of record. Entitlement to service connection for breast cancer, to include as due to exposure to contaminants in the water supply at Camp Lejeune The Veteran contends that he developed breast cancer as a result of his exposure to contaminants in the water supply while stationed at the Camp Lejeune from June 1986 to June 1987. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131, 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether the elements of a claim are met is based on an analysis of all the evidence of record and evaluation of its competency, credibility, and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309, providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines "contaminants in the water supply" as the volatile organic compound trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309(f), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The presumption applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 9, 4173-4185 (January 13, 2017). Notwithstanding the presumption, service connection for a disability claimed as due to contaminated water at Camp Lejeune may also be established by showing on a direct basis that a disorder resulted due to such exposure. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The Board finds that the evidence is least approximately balanced or nearly equal that the Veteran's currently diagnosed breast cancer is related to his exposure to contaminants in the water supply at Camp Lejeune. Military personnel records indicate that the Veteran was assigned to Camp Lejeune from June 1986 to June 1987, during the presumptive period defined in 38 C.F.R. §§ 3.307(a)(7). See January 2018 VA Examination. Importantly however, breast cancer is not one of the conditions enumerated under 38 C.F.R. § 3.309(f); therefore, the Veteran is not entitled to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. Despite not qualifying for presumptive service connection due to exposure to contaminants in the water supply at Camp Lejeune, the Veteran is not precluded from establishing service connection with proof of direct causation. The Veteran has submitted a favorable medical opinion from his private physician addressing the etiology of his breast cancer. In the February 2018 opinion, Dr. J.R. opined that the Veteran's breast cancer should be considered directly related to his military service and exposure to contaminated at Camp Lejeune. Dr. J.R. reported that the Veteran underwent genetic testing and had no family history to suggest genetic predisposition for breast cancer. Dr. J.R. opined that, because other male and female service members with similar contaminated water exposure have developed similar malignancies, this increased the suspicion and likelihood that the exposure to contaminated water directed contributed to the Veteran's diagnosis. The evidence of record also contains a May 2017 genetic screening report that indicates it was completed for diagnostic testing for a personal and family history of breast cancer. Dr. A.R., the laboratory director, indicated that the Veteran had negative results for the presence of 11 genes typically associated with breast cancer. No pathologic sequence variants or deletions/duplications were identified. Further, during his March 2022 Board hearing, the Veteran stated that, based upon these genetic test findings, it was not required that his daughters and granddaughters undergo preventative testing to identify a genetic predisposition for breast cancer. VA etiology opinions were obtained in January 2018 and November 2019. The January 2018 examiner provided a negative nexus opinion; however, she indicated that the Veteran's medical record was extremely limited, and a proper forensic evaluation could not be performed due to the lack of past medical, social, smoking, family, and occupational histories, as well as other necessary clinical information. The November 2019 VA examiner also provided a negative nexus opinion. By way of rationale, the examiner noted that a family history of breast cancer, as well as a genetic predisposition, raised an individual's risk of developing breast cancer but failed to directly acknowledge the May 2017 negative genetic screening report and the February 2018 private medical opinion indicating no family history to suggest a predisposition for breast cancer. Notably, the examiner also placed great emphasis on an understanding that the Veteran was not exposed to contaminated water at Camp Lejeune as water contamination ended in January 1985 according to the Agency for Toxic Substances and Disease Registry (ATSDR). This information contradicts VA regulation that presumes exposure to contaminants on-base between August 1, 1953, and December 31, 1987. 38 C.F.R. §§ 3.307(a)(7). As such, the November 2019 opinion is based, in part, on an incorrect understanding of this Veteran's exposure history. Further, all but one medical study referenced by the examiner was female-specific, and he failed to provide adequately discuss the applicability, if any, of the one male-specific study referenced, which per the examiner's report, included findings suggesting a "possible" association between male breast cancer, being stationed at Camp Lejeune, and cumulative exposure to the types of contaminants found at Camp Lejeune. Based on the unique facts and evidence presented in this case, the Board finds that the evidence is at least approximately balanced or nearly equal, if not higher, that this Veteran's currently diagnosed breast cancer is related to his exposure to contaminants in the water supply at Camp Lejeune during his active service. The Board affords the Veteran the benefit of the doubt, and service connection is granted on a direct basis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.