Citation Nr: A25035665 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240813-467820 DATE: April 17, 2025 ORDER Entitlement to service connection for lung cancer is granted. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. Affording the appellant, the benefit of the doubt, the Veteran's lung cancer was at least as likely as not related to exposure to water contaminants during his service at Camp Lejeune. 2. The Veteran's principal cause of death was lung cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for the Veteran's cause of death are met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to March 1974. The Veteran died in January 2016. The appellant is his surviving spouse, and she has been substituted to process the service connection claim to completion. See 38 U.S.C.§ 5121. In a November 2023 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for lung cancer and cause of the Veteran's death. In January 2024, the appellant submitted a VA Form 20-0996, Request for Higher-Level Review (HLR) of the that decision. In January 2024, duty to assist errors were identified and the claims were returned for additional development. In a February 2024 rating decision, the AOJ confirmed and continued the denials. The appellant timely appealed this decision to the Board and requested direct review of the evidence considered by the AOJ. See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). Therefore, the Board may only consider the evidence of record at the time of the February 2024 rating decision. 38 C.F.R. § 20.301. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, they may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection The appellant asserts that the Veteran's lung cancer was caused by exposure to contaminated water at Camp Lejeune. She also seeks service connection for his cause of death. Service connection may be granted for a disability resulting from 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 a right to compensation for a present disability, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A presumption of service connection arises for certain diseases if the disease manifests itself to a degree of 10 percent or more following exposure to contaminants present in the water supply at Camp Lejeune. Service at Camp Lejeune means no less than 30 days of service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307(a)(7). The list of diseases that qualify for a presumption of service connection for those who served at Camp Lejeune include the following: bladder cancer, kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes. 38 C.F.R. § 3.309(f). The Veteran's service records show he was stationed at Camp Lejeune and is therefore presumed to have been exposed to contaminated water during service. See 38 C.F.R. § 3.307(a)(7). In January 2023, the AOJ also submitted a Toxic Exposure Risk Activity (TERA) memorandum confirming that the Veteran qualifies for a presumption of exposure for Camp Lejeune Water Contamination (CLCW) and that he had participated in a TERA during service. See Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). VA and private treatment records show a confirmed diagnosis of lung cancer in 2015. These records also document the Veteran's 35-year history of cigarette smoking. See clinical records from Baptist Memorial Hosp and Memphis South VA Clinic. Although lung cancer, is not on the list of presumptive diseases associated with such exposure, service connection may still be established with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning to the nexus, the Board finds that there is contradicting medical opinions in this case. The first from a February 2016 VA physician with a Master of Public Health (MPH) and who is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water (CLCW) Project. The physician found that the Veteran's lung cancer was likely caused by his use of tobacco and that there was limited data that would suggest that the lung cancer was attributable to his period of service at Camp Lejeune. As part of the rationale, the physician cited multiple studies and medical literature including from the Chemical Abstract Services (CAS)/American Chemical Society; the Agency for Toxic Substances and Disease Registry (ATSDR), and the Environmental Protection Agency (EPA). He also cited a 2009 study by the National Research Council (NRC) of the National Academies which looked at the potential health effects of exposure to contaminated groundwater at Camp Lejeune. This report included a review of studies addressing exposure to Trichloroethylene (TCE), and Tetrachloroethylene or Perchloroethylene (PCE), as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. The physician indicated there was no information regarding the Veteran's actual exposure to these contaminants while he was stationed at Camp Lejeune and that his risk factors for lung cancer included chronic tobacco use and advanced age at the time of diagnosis. In September 2022 the appellant submitted an independent medical opinion from a private oncologist who reviewed the record and provided an extensive discussion of the causes and risk factors for lung cancers including age, smoking, and family history; the lifetime risk of lung cancer and smoking; the list of Camp Lejeune contaminants; and scientific studies linking environmental exposures with lung cancers. See medical opinion from C. King, PhD M.D., dated August 9, 2022. The oncologist noted that the average age for lung cancers is 70 years old and that the Veteran's diagnosis at age 59 was 11 years younger than average thus favoring exposure to aggressive carcinogens as the trigger. He noted that the EPA identified chemical contaminants in the groundwater at Camp Lejeune that posed an unacceptable risk to human health. The list of contaminants included the chlorinated solvent PCE (perchloroethylene) as well as heavy metals classified as human carcinogens and the ones relevant for the Veteran's diagnosis of lung cancer were Cadmium and Arsenic. The oncologist stated that the Veteran was exposed for 14 months to at least three distinct human carcinogens linked with lung cancer, namely PCE and the heavy metals Cadmium and Arsenic. Further, the had the single personal risk factor of smoking, no family history of lung cancers, and no known exposure to carcinogens other than those at Camp Lejeune. The private oncologist opined that based on the medical and scientific evidence that the Veteran's diagnosis and cause of death from lung cancer was at least as likely as not caused by the multiple carcinogens at Camp Lejeune, and in particular PCE, Cadmium and Arsenic exposure. Id. An additional VA TERA opinion was obtained in February 2024 from physician assistant. The clinician determined that the Veteran's non-small cell lung cancer was less likely than not (likelihood is less than approximately balanced or nearly equal) caused by the indicated toxic exposure risk activity, after considering the Veteran's total potential exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities. The clinician explained that while the literature shows lung cancer as a health effect with positive findings in at least one study that evaluated exposure to TCE and/or PCE, it also showed studies for TCE and PCE did not exclude confounding variables of cigarette smoking in the studies that evaluated this association. The clinician also noted that literature shows a known risk factor for lung cancer is cigarette smoking and that the Veteran's multi-year smoking history outweighs the TERA exposure during his 2 years of service. Therefore, a nexus is not established. After carefully reviewing the competent medical evidence of record, the Board is satisfied that the Veteran's lung cancer cannot be clearly disassociated from his military service. As discussed above, the VA public health physician found the Veteran's lung cancer was not related to the conceded Camp Lejeune contaminated water exposure, whereas the private oncologist concluded otherwise. The Board must assess the credibility and weight of all the evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Daye v. Nicholson, 20 Vet. App. 512 (2006). In this case, the Board notes that the professional qualifications of both physicians are equal and that their opinions are based upon a review of the record and contain analysis for the basis for their conclusions. Having weighed the evidence both in support of and against the claim, the Board finds that, at the very least, the medical opinions are in approximate balance with no sound basis for choosing one over the other. In other words, there is no adequate reason to reject the private medical opinion that is favorable to the appellant. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). That said, the Board has not ignored or disregarded the February 2024 VA TERA opinion, see Willis v. Derwinski, 1 Vet. App. 66 (1991), but we are free to assess evidence and are not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). It is well settled that competent medical opinions may be offered by anyone with the requisite medical knowledge and training, including physician assistants. See Cox v. Nicholson, 20 Vet. App. 563. 569 (2007). However given the characteristics of lung cancer and its various risk factors, the Board finds that specialized training is necessary to resolve the complex medical question regarding the etiology of the Veteran's lung cancer. Although the Board certainly does not question the competence or professional expertise of the VA physician assistant, they are not shown to possess the advanced education and training equivalent to that of an oncologist and even so must typically work under the supervision of a licensed physician. So, while the 2024 VA opinion has not been discounted it does have less probative value. See Black v. Brown, 10 Vet. App. 279, 284 (1997). In this case, any doubt that remains as to whether the Veteran's lung cancer was attributable to service, as opposed to some other cause, is resolved in favor of the appellant and service connection is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. cause of the Veteran's death To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. See 38 U.S.C. §1310; 38 C.F.R. § 3.312(a). To be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The Board acknowledges that the Veteran's death certificate lists his cause of death as metastatic lung cancer. The Board in the above decision found that the Veteran was entitled to service connection for lung cancer. As such, the Veteran's death certificate offers uncontroverted evidence that his principal cause of death was this same lung cancer. Accordingly, entitlement to service connection for cause of the Veteran's death is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.