Citation Nr: 23052167 Decision Date: 09/21/23 Archive Date: 09/21/23 DOCKET NO. 17-62 649A DATE: September 21, 2023 ORDER Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD) (claimed as breathing problems), and as due to contaminated water at Camp Lejeune is denied. Entitlement to service connection for a prostate condition, to include as due to contaminated water at Camp Lejeune is denied. FINDINGS OF FACT 1. The evidence persuasively weighs against a finding that the Veteran's respiratory condition is related to his active-duty service, to include as due to exposure to contaminated water at Camp Lejeune 2. The evidence persuasively weighs against a finding that the Veteran's prostate cancer is related to his active-duty service, to include as due to exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for COPD, to include as due to exposure to contaminated drinking water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102,3.303, 3.304, 3.307, 3.3. 2. The criteria for establishing entitlement to service connection for prostate cancer, to include as due to water contamination at Camp Lejeune, are not met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1972 to August 1976, to include service in Camp Lejeune. These matters come before the Board of Veterans' Appeal (Board) from a September 2014 rating decision of the Department of Veterans (VA) Regional Office (RO). These issues were previously before the Board in December 2022, at which time they were remanded for additional development. There has been substantial compliance with the remand with respect to the Veteran's claim. As such, the Board will proceed with adjudication with this issue. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been returned to the Board for further appellate review. Service Connection Service Connection Generally, to establish service connection, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or 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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's prostate cancer (a malignant tumor) in the present case is an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Also, 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 though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d). The current diagnosis of prostate cancer is not among the diseases presumed to be associated with exposure to contaminated water at Camp Lejeune. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether the evidence weighs persuasively against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Respiratory condition The Veteran contends that his respiratory condition is due to exposure to contaminated drinking water at Camp Lejeune. See August 2022 and August 2023 Appellate Briefs. As noted above, VA has verified that the Veteran was stationed at Camp Lejeune and is presumed to have been exposed to contaminated water. However, COPD is not a disease which warrants presumptive service connection based on exposure to contaminants in the water supply at Camp Lejeune. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will adjudicate the Veteran's claim on a direct basis. After review of all of the lay and medical evidence of record, the Board finds that while the Veteran has been diagnosed with COPD, the Veteran's COPD was not manifested during service and no chronic symptoms of COPD were manifested during service. See May 2017 Primary Care Nursing Triage Note. The Veteran's service treatment records are negative for any signs, symptoms, reports, treatment, findings, or diagnoses of a respiratory disability to include COPD. The Board next finds that the lay and medical evidence show that symptoms of COPD were not continuous since service, including not to a degree of 10 percent within one year of service separation. The Veteran's post-service treatment records include complaints of cough and congestion and CT scan of the Veteran's chest due to his COPD as early as 2016, which is approximately 40 years after service. See July 2016 VA Treatment Records. A September 2017 Pulmonary Outpatient Note also noted that the Veteran has a history of asthma. Considered together with the absence of in-service respiratory injury or disease or symptoms of a respiratory condition, to include COPD during service, the 40-year gap between service and the onset of COPD in 2016, as shown by the objective medical evidence, is one factor that tends to weigh against a finding of continuous symptoms of a respiratory condition after service separation and a respiratory condition manifested to a compensable degree in the first post-service year. The Board further finds that the weight of the evidence demonstrates that the Veteran's COPD, which was first manifested many years after service, was not caused by or otherwise related to service, to include presumed exposure to contaminated water during service at Camp Lejeune. A Camp Lejeune Contaminated Water (CLCW) subject matter expert (SME) opinion was obtained in June 2023. The examiner opined that the Veteran's respiratory condition, to include COPD, is less likely as not caused by or related to his exposure to contaminants at Camp Lejeune. In support of his opinion, the examiner noted while the Veteran's medical records clearly shows a diagnosis of COPD, the Veteran's smoking history is primary the cause of his COPD accounting for up to 90 percent of the risk of its development. Indeed, a review of the Veteran's treatment records show that the Veteran reported of smoking less than half a pack per day since he was 18 years of age. See February 2021 Pulmonary Outpatient Note. The examiner further noted that COPD nor asthma is not an accepted condition associated with exposure to the contaminants at CLCW. Based on the foregoing, the Board finds that the evidence weighs persuasively against finding that the current respiratory condition, to include COPD and asthma was incurred in service or was otherwise causally or etiologically related to service, to include exposure to contaminated water at Camp Lejeune; therefore, service connection for a respiratory condition must be denied. 2. Prostate condition The Veteran contends that his prostate cancer is related to service, to include as due to water contamination at Camp Lejeune during service. See May 2014 VA 21-4138 Statement in Support of Claim; See also August 2022 and August 2023 Appellate Briefs. As previously noted, prostate cancer is not a listed disease that is subject to presumptive service connection due to exposure at Camp Lejeune. The Board does not have the authority to grant presumptive service connection for a disease that is not listed in the regulation. However, the Board will consider service connection on an otherwise direct basis. After review of all of the lay and medical evidence of record, the Board finds that no prostate injury or disease was manifested during service and no chronic symptoms of a prostate condition were manifested during service. The Veteran's service treatment records do not show complaints, treatment, or diagnosis of a prostate condition. In a June 1976 visit, the Veteran was seen by a physician primarily for complains of a possible hernia wherein he reported of pain to his testicle; however, no prostate condition was noted by the physician. Thus, the evidence shows no in-service prostate injury or disease and no chronic symptoms of a prostate condition. The Board next finds that the lay and medical evidence show that symptoms of a prostate condition were not continuous since service, including not to a degree of 10 percent within one year of service separation. The medical evidence indicates that prostate cancer had a post-service onset in 2010, approximately 34 years after service. See June 2023 C&P Examination. Considered together with the absence of in-service prostate injury or disease or symptoms of a prostate condition during service, the 34-year gap between service and the onset of prostate cancer in 2010, as shown by the objective medical evidence, is one factor that tends to weigh against a finding of continuous symptoms of a prostate condition after service separation and a prostate condition manifested to a compensable degree in the first post-service year. The Board further finds that the weight of the evidence demonstrates that the current prostate cancer, which was first manifested many years after service, was not caused by or otherwise related to service, to include presumed exposure to contaminated water during service at Camp Lejeune. A Camp Lejeune Contaminated Water (CLCW) subject matter expert (SME) opinion was obtained in June 2023. After review of the record, the examiner opined that the current prostate cancer is less likely as not caused by or a result of the Veteran's exposure to CLCW. In support of the medical opinion, the examiner thoroughly discussed the Veteran's relevant medical history, as well as the risk factors for the development of prostate cancer. The examiner noted that there are several risk factors for the development of prostate cancer, which includes age, family history, race, diet, obesity, Agent Orange exposure and smoking. VA treatment records show that the Veteran was a former smoker and had been smoking since he was 18 years old and quit when he was around 45 years of age. See December 2020 Urology Outpatient Clinic Note. The examiner further indicated that studies have shown that prostate cancer rises rapidly after age 50. The examiner noted that one of the most important risk factor for the development of prostate cancer is increasing age and that there is a widespread prevalence of prostate cancer in older men. The examiner indicated that the Veteran was diagnosed with cancer around 2013 at age 61, approximately 37 years post service at Camp Lejeune. This long latency, when coupled with the Veteran's advanced age during his prostate cancer diagnosis, make Camp Lejeune a very unlikely source of the Veteran's prostate cancer. Lastly, the examiner noted that while there are some studies which suggested that there is an association between the chemicals found in Camp Lejeune Water Contamination (CLWC) and cancer, the Agency for Toxic Substances and Disease Registry (ATDSR) ultimately concluded that there was either no evidence or below equipoise concern for an association with the chemicals present in CLWC and prostate cancer. The examiner concluded that based on the current available research studies and literatures and the high risk of prostate cancer based on age, family history, the Veteran's prostate cancer is less likely as not caused by or a result of his exposure to CLCW. (Continued on the next page) ? Although the Veteran has asserted the belief that the prostate cancer was caused by service, he is a lay person and, under the facts of this case, does not have the requisite medical expertise to render a competent medical opinion in this case regarding the etiology of prostate cancer, when there was no in-service prostate injury or disease, no in-service chronic symptoms of a prostate condition, and symptoms of a prostate condition manifested many years after service. Such diagnoses and opinions as to relationship involve unseen systems processes and disease processes that are largely unobservable by the five senses of a lay person, involve an understanding of the genitourinary system and the possible causes or etiologies of prostate cancer, and involve making findings based on medical knowledge and clinical testing results. Consequently, the Veteran's assertions that the current prostate cancer is related to service are of no probative value. For these reasons, the Board finds that the evidence weighs against finding that the current prostate cancer was incurred in service or was otherwise causally or etiologically related to service, to include exposure to contaminated water at Camp Lejeune; therefore, service connection for prostate cancer must be denied. M. Mills Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mendoza, Associate 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.