Citation Nr: 23020007 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 22-00 098 DATE: March 31, 2023 ORDER Service connection for pancreatitis is denied. FINDING OF FACT The Veteran's pancreatitis did not originate in service and is not otherwise etiologically related to his active service, to include as due to his exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for pancreatitis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2022, a Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At the hearing, the record was held open for 60 days for the submission of additional evidence. An additional 90 days to submit additional evidence was granted in December 2022. Thereafter, in January 2023, the Veteran's additional medical evidence was received, and in March 2023 an article about Camp Lejeune's water contamination was received. This evidence is considered herein. Entitlement to service connection for pancreatitis The Veteran contends that he developed pancreatitis due to exposure to contaminated water while stationed at Camp Lejeune. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Veteran's service treatment records (STRs), including his August 1966 service separation report of medical examination, are silent for any complaints or treatment related to pancreatitis. Consequently, service connection for pancreatitis on the basis that such had its onset in service is not warranted. Notably, neither the Veteran nor his representative has contended (nor have they submitted competent evidence to show) that the Veteran's pancreatitis began in service. Rather, as noted above, it is his contention that his pancreatitis, which had its onset after service, is associated with in-service exposure to contaminated water at Camp Lejeune. To establish presumptive service connection from a disease associated with exposure to contaminated water at Camp Lejeune, a claimant must show the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran suffered from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Here, a review of the Veteran's military personnel records show that he was stationed at Camp Lejeune from 1962 to 1963. Accordingly, the Veteran is presumed to have been exposed to contaminated water at Camp Lejeune. The next question for the Board, then, is whether the Veteran's claimed pancreatitis is related to that contaminated water. Under 38 C.F.R. § 3.309(f), the following diseases are presumed to be associated with exposure to contaminants in the water supply at Camp Lejeune and will be service-connected even though there is no record of such disease during service (subject to the rebuttable presumption provisions of 38 C.F.R. § 3.307(d)): kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. The Veteran's claimed condition is not among the listed diseases presumed related to contaminated water exposure at Camp Lejeune. While the Veteran is not precluded from establishing service connection on a direct incurrence or other basis, including as associated with in-service exposure to contaminated water at Camp Lejeune, the Board finds that the evidence of record weighs persuasively against finding that the Veteran's pancreatitis is related to exposure to contaminated water at Camp Lejeune. The record contains conflicting medical opinions regarding whether the Veteran's pancreatitis is at least as likely as not related to his exposure to contaminated water at Camp Lejeune. For the reasons that follow, the Board assigns limited probative weight to Dr. R.C.'s private opinions and gives more probative weight to the November 2018 VA examiner's opinion. In a March 2017 letter, private practitioner R.C. opined that the Veteran's pancreatitis was related to Camp Lejeune water exposure. Dr. R.C. wrote that the Veteran "has been diagnosed with chronic pancreatitis, and he has no risk factors for it known. He had a long exposure to contaminated water, from a nearby plant while deployed at Camp Lejeune in NC. This plant had contaminants like tetrachloroethane, per chlor, ethylene, tetrachloride, carbon dichloride, and 1,1,2,2,tetrachloroethylene, demonstrated leak into the base drinking water. This exposure can explain the present changes in his pancreas that includes fibrosis or scarring and it also increases the risk of pancreatic cancer." In November 2018, VA obtained a medical opinion from a Camp Lejeune Contaminated Water Project subject matter expert (SME). The SME noted that the Agency for Toxic Substances and Disease Registry (ATSDR), a part of the Centers for Disease Control and Prevention (CDC), had found that between August 1953 and January 1985, the drinking water system at Camp Lejeune exceeded its current EPA maximum contaminant level. However, the SME reviewed the Veteran's claims file, including the March 2017 positive private medical opinion from Dr. R.C., as well as relevant scientific literature and concluded that the Veteran's pancreatitis was not caused by or the result of his exposure to Camp Lejeune contaminated water. The SME explained that chronic pancreatitis was commonly defined as a continuing, chronic inflammatory process of the pancreas, characterized by irreversible morphologic charges, and that the cause of chronic pancreatitis usually was metabolic in nature. The SME also noted that the ATSDR had reviewed all the health concerns due to contaminated water at Camp Lejeune and, in their extensive list of potential medical problems that could result due to an exposure of the contaminated water, pancreatitis was not listed. The SME similarly referenced medical research on the mortality of Marines and Navy personnel and civilian employees exposed to contaminated drinking water at Camp Lejeune and noted that these studies had found elevated hazard ratio levels for kidney cancer, liver cancer, esophageal cancer, cervical cancer, Hodgkin's lymphoma, ALS, leukemia, multiple myeloma, rectal cancer, and Parkinson's disease; however, the hazard ratio for pancreatic cancer was not elevated and no mention of pancreatitis was made in these studies. Regarding the Veteran, specifically, the SME explained that when assessing causation, in this case exposure related factors at Camp Lejeune, one must look at personal risk factors for a condition as well as external risk factors and the strength of those factors in causing or contributing to the disease in question. With respect to the Veteran's personal risk factors, it was noted that he did not have the risk factor of alcohol use/abuse, the most common etiology of pancreatitis; however, the Veteran did have hypertriglyceridemia, which was a known cause of pancreatitis. With respect to the Camp Lejeune factors, the SME acknowledged that two of the contaminating solvents, trichloro and perchloroethylene, had been associated with pancreatitis. However, the SME also noted that the Veteran's exposure ended in 1963, 53 years before the 2017 letter from Dr. R.C. stating that the Veteran had chronic pancreatitis. The SME then stated it was known that pancreatitis, while capable of being caused by solvents, would be expected to resolve after cessation to those solvents. The SME also found that based on the length of the Veteran's service dates at Camp Lejeune, he had a relatively short exposure duration. The SME then noted with significance that all of the medical records that were available in the claims file and dated prior to 2017 were silent for any mention of pancreatitis, despite mentioning many other current or past medical problems. Accordingly, the SME concluded that the Veteran's limited exposure to fairly low levels of contaminants in the drinking water, as well as the extensive time from exposure to the 2017 letter, which noted a diagnosis of pancreatitis, with no mention of pancreatitis in the interim, made it "extremely unlikely" that he would have ongoing disease from that exposure period, and that the Veteran's current pancreatitis was not caused by or related to his exposure to contaminated waters at Camp Lejeune. In a subsequent January 2023 letter, Dr. R.C. wrote that the Veteran had been diagnosed with exocrine pancreatic insufficiency, related to chronic pancreatitis. Dr. R.C. also noted that the Veteran "has a history of exposure to toxic substances in the water he drank and was used for food preparation while he was at Cam [sic] LeJeune. He has recollection of a later notification years after the exposure was documented. He was deployed there for many years, and the exposure to tetrachloroethylene was documented then. Our concern is that the substance and others that include agent orange may increase the risk of pancreatic cancer. Many patients with chronic pancreatitis develop pancreatic cancer." After reviewing the foregoing medical opinions, the Board finds the November 2018 VA SME's opinion to be most probative, because it is based on an accurate medical history, medical research applied to the Veteran's specific circumstances, and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board recognizes that at the November 2022 Board hearing, the Veteran testified he did not drink alcohol or take drugs other than prescribed medication and thus believed he did not have any risk factors for chronic pancreatitis. The VA SME, likewise, acknowledged that the Veteran did not have a history of alcohol use/abuse, but the VA SME went on to note that the Veteran did have hypertriglyceridemia which, he stated, was a known cause of pancreatitis. The Veteran's treatment records list the onset date of his hypertriglyceridemia as March 2003. For these reasons, the Board does not find the November 2018 VA SME's opinion to be inadequate and, instead, finds it probative. As for the opinions from Dr. R.C., the Board finds them to be speculative and general in nature. Dr. R.C does not indicate review of the Veteran's claims file and he provided no medical or research citations for his statements in his March 2017 opinion. He also did not discuss the Veteran's history of hypertriglyceridemia, as the November 2018 VA SME did, when stating that the Veteran did not have any risk factors for pancreatitis. At the November 2022 Board hearing, the undersigned explained to the Veteran that a probative medical opinion would be one that included an explanation for the medical conclusions reached as well as a discussion of any medical research that had been done to arrive at those conclusions. Thereafter, the Veteran submitted the January 2023 letter from Dr. R.C. However, this opinion is premised on the Veteran having served for "many years" at Camp Lejeune when the Veteran's service records reflect that he was stationed there from only 1962 to 1963. Additionally, the Board notes that the January 2023 letter does not actually opine that the Veteran's pancreatitis is related to his exposure to contaminated water at Camp Lejeune. Rather, Dr. R.C. discusses the diagnosis and course of the Veteran's pancreatitis, describes some of the exposures that the Veteran had at Camp Lejeune, and then states that their "concern is that the substance and others that include agent orange may increase the risk of pancreatic cancer," as many patients with chronic pancreatitis develop pancreatic cancer. However, the Veteran has not been diagnosed with pancreatic cancer, and it is outside of the Board's legal authority to grant service connection for future diseases or cancers that a Veteran may later develop. Moreover, Dr. R.C.'s use of "may" is a speculative term. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). Finally, although abstracts for two medical articles were attached to Dr. R.C.'s January 2023 letter, the Board notes that one of them was considered and cited to in the VA SME's November 2018 medical opinion. As for the other, it notes that acute pancreatic injury has been attributed to occupational exposure to chemical agents in workers, but there have been no previous reports of occupationally induced chronic pancreatitis (which is what the Veteran has). This is consistent with the VA SME's finding when he stated that, "It is known that pancreatitis, while capable of being caused by solvents, would be expected to resolve after cessation to those solvents." The Board also notes that the VA SME's November 2018 medical opinion is based, in part, on more recent medical studies as compared to the ones attached to Dr. R.C.'s January 2023 letter, which are from 1985 and 1986. For these reasons, the Board finds Dr. R.C.'s medical opinions to be less probative than the November 2018 VA SME's opinion. The Veteran also submitted a Wikipedia article on the Camp Lejeune water contamination during the 90-day extension granted in December 2022. The Wikipedia article discusses the contamination, responses, and actions related to the contamination. However, this article is general in nature, does not relate to the specific facts and circumstances of the Veteran's case, and is not accompanied by an opinion of any medical expert. See Sacks v. West, 11 Vet. App. 314, 316-17. Importantly, the Wikipedia article does not indicate that the Veteran's pancreatitis is related to his exposure to contaminated waters at Camp Lejeune. As such, the Board finds that this article is entitled to very little to no probative value and is outweighed by the more probative November 2018 VA SME opinion. The Board acknowledges that both in his January 2019 Notice of Disagreement and at the November 2022 Board hearing, the Veteran testified to his belief that the CDC had recognized pancreatitis/cancer of the pancreas as being caused by chemicals found in the Camp Lejeune water supply causes and that VA should add pancreatitis to the list of presumptive service-connected diseases. However, the inclusion of additional health conditions to the list of disabilities eligible for presumptive service connection due to exposure to contaminated water at Camp Lejeune is a policy decision solely within the discretion of the VA Secretary, and outside of the Board's legal authority. The Board must apply the law as it is currently written and pancreatitis is not one of the health conditions currently eligible for presumptive service connection consideration due to contaminated water exposure at Camp Lejeune under 38 C.F.R. § 3.309(f). Moreover, the undersigned did encourage the Veteran at the November 2022 Board hearing to submit a copy of the documents that he had reviewed from the CDC, so that information could be considered in his current claim. However, no information from the CDC was received following the hearing. The Board recognizes the Veteran's sincerely held belief that his pancreatitis is related to his exposure to Camp Lejeune water. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2018 VA SME's opinion. (Continued on the next page) ? In conclusion, the most probative evidence of record persuasively weighs against the claim of entitlement to service connection for pancreatitis. As the most probative evidence of record persuasively weighs against establishing service connection, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Coburn 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.