Citation Nr: 23007372 Decision Date: 02/06/23 Archive Date: 02/06/23 DOCKET NO. 18-35 877 DATE: February 6, 2023 ORDER Entitlement to service connection for breast cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDINGS OF FACT 1. The Veteran served at Camp Lejeune, North Carolina, during the period of potential exposure to contaminated drinking water and is presumed to have been exposed to contaminated water during service. 2. The Veteran does not have a current disability of breast cancer that is causally related to any in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for breast cancer, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Marine Corps from May 1970 to February 1971. This issue comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2018 Substantive Appeal (VA Form 9), the Veteran requested a hearing before the Board via videoconference. In December 2018 statement, the Veteran withdrew the hearing request. Therefore, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). Compensation may be granted to a Veteran for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In making its determinations, the Board will weigh all relevant lay evidence and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, diagnoses and etiology determinations are medical findings and must be established by appropriate medical professionals' opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, a Veteran may be competent to report symptoms that he perceived through his own senses, contemporaneous medical diagnoses, or symptoms that support a later diagnosis by a medical professional. See id. When there is an approximate balance of evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (2021). Entitlement to service connection for breast cancer, to include as due to exposure to contaminated water at Camp Lejeune, is denied. The Veteran contends that her breast cancer is due to exposure to contaminated water while she was stationed at Camp Lejeune. Presumptive Service Connection The Board finds that presumptive service connection is not warranted. A Veteran, or former reservist or member of the National Guard, who 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 during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). Contaminants in the water supply means the volatile organic compounds 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. 38 C.F.R. § 3.307(a)(7). If a Veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), certain diseases shall be service-connected when manifested to a degree of 10 percent or more at any time after service, even when there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d). The Veteran's service personnel records reflect service at Camp Lejeune, North Carolina, from May 1970 to February 1971. As such, exposure to contaminants in the water supply at Camp Lejeune is presumed. However, breast cancer is not among the diseases presumed to be associated with exposure to contaminated water at Camp Lejeune. 38 C.F.R. § 3.309(f). Therefore, the Veteran is not entitled to a presumption of service connection under 38 C.F.R. § 3.309(f). The Veteran is also not entitled to a presumption of service connection under 38 C.F.R. §§ 3.307(a). For certain chronic disorders, including malignant tumors, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The relevant questions for the Board are whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. Here, the evidence persuasively weighs against a finding that the Veteran meets these criteria. The Veteran does not have a present disability of breast cancer. There are no medical records confirming the Veteran's diagnosis of breast cancer. Her private medical records note that the Veteran self-reported a history of breast cancer, but they do not include any information about the date, type, or symptoms of such cancer. There is no record of any surgery, medication, or other treatment of any type. Similarly, there is no evidence of record suggesting the Veteran's breast cancer manifested to a compensable degree during service or within the presumptive period after service, or that she experienced a continuity of symptomatology since service. The Veteran does not contend, nor do her STRs indicate, that the Veteran had breast cancer during service. Her separation examination shows normal clinical results without any noted issues. There is no continuity of symptomatology because there is no record of the date, type, or symptoms of the Veteran's cancer nor is there a record of any surgery, medication, or other treatment of any type. The record thus weighs against a finding that the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or that the Veteran experienced a continuity of symptomatology since service. As such, the Veteran is not entitled to service connection on a presumptive basis. Although the record does not support a finding of entitlement to service connection on a presumptive basis, the Veteran may still be eligible for entitlement to service connection on a direct basis. Direct Service Connection To establish a right to compensation for a disability on a direct basis, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The requirement of a present disability is satisfied when the Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the evidence persuasively weighs against a finding that the Veteran meets any of the three criteria above. The Veteran does not have a current disability of breast cancer. As noted above, there are no medical records confirming the Veteran's diagnosis of breast cancer at any time during the appeal period. The Veteran's private medical records note that the Veteran self-reported a history of breast cancer, but they do not include any information about the date, type, or symptoms of such cancer. There is no record of any surgery, medication, or other treatment of any type. The Veteran was also afforded a VA examination in June 2018. After fully reviewing the Veteran's claims file, the VA examiner concluded that the Veteran did not have a diagnosis of breast cancer. The examiner explained that the Veteran's medical records note a history of breast cancer based on Veteran report. However, no breast surgery was noted in treatment records and no typical post-breast cancer medications were listed. There was no information regarding the alleged cancer, such as the date of cancer, type of cancer, which breast, treatment, imaging (of cancer or routine mammograms), or pathology. Further, the VA examiner explained that treatment notes indicated the Veteran had a hysterectomy and ovaries removed due to family history of cancer, but not personal history of breast cancer. Even assuming the Veteran's statements were sufficient evidence of a diagnosis of breast cancer, there is no evidence suggesting that the Veteran's breast cancer was present during the time she filed her claim or during the pendency thereof. The Veteran reported a history of breast cancer to her private medical provider, but she has not contended that she has still had breast cancer at any time since filing her claim for benefits. She also has not contended, nor provided evidence of, any present residuals effects of her breast cancer. Even if the Veteran did once have breast cancer, without evidence of a present disability, the Veteran's claim for entitlement to service connection must be denied. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board is mindful of the holding in Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018), in which the U.S. Court of Appeals for the Federal Circuit explained that, where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. The Veteran does not contend, and the evidence of record does not show, that the Veteran had functional impairment affecting her earning capacity related to breast cancer symptoms. The record fails to establish a disability manifested by breast cancer symptoms at any time during the appeal period or proximate thereto. McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. Because a current breast cancer disability has not been shown, the Board does not reach the additional question of the relationship (nexus) between any current breast cancer and service. The Board finds that the evidence persuasively weighs against the claim of service connection for breast cancer, so the benefit of the doubt doctrine does not apply. See Lynch, 21 F.4th 776. Accordingly, the Veteran's claim must be denied. L.M. YASUI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keddington, Nichole M. 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.