Citation Nr: 18139664
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 16-19 028A
DATE:	September 28, 2018
ORDER
Entitlement to service connection for residuals of rectal cancer, associated with exposure to contaminated water at Camp Lejeune, is denied.

REMANDED
Entitlement to service connection for asthma, associated with exposure to contaminated water at Camp Lejeune, is remanded.
FINDING OF FACT
The Veteran’s rectal cancer manifested many years after service separation and is not causally or etiologically related to exposure to contaminated water at Camp Lejeune, North Carolina.
CONCLUSION OF LAW
The criteria to establish service connection for residuals of rectal cancer are not met.  38 U.S.C. §§ 1110, 1131; 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran, who is the appellant in this case, served on active duty from July 1971 to February 1978.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated October 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  In May 2016, the Veteran perfected a timely substantive appeal.
Preliminary Matter
The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  
To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed aggravation of a disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
In order to establish presumptive service connection for 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).
For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).
In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.
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 claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  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).
Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. at 53.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Entitlement to service connection for rectal cancer.
The Veteran asserts that his rectal cancer was caused by exposure to contaminated water at Camp Lejeune during service.  See Letter from Veteran dated August 7, 2014; Notices of Disagreement dated February 25, 2015 and December 16, 2016.
Initially, the Board finds that the Veteran was diagnosed with rectal cancer in 2005, see e.g. Surgical Pathology report dated June 24, 2005, which was surgically removed, leaving residuals of the surgery, to include a colostomy.  See e.g., Private treatment record dated May 8, 2009; Letter from Veteran dated August 7, 2014.
While the Veteran’s service personnel records show that he served at Camp Lejeune for no less than 30 days, and VA has conceded his in-service exposure to contaminated water at Camp Lejeune, rectal cancer is not among the diseases identified in 38 C.F.R. § 3.309(f) as being associated with exposure to contaminated water at Camp Lejeune.  Therefore, the presumption under 38 C.F.R. § 3.309(f) is not for application.
As discussed previously, showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) is an alternative means of linking a claimed disability to service, but is only available for the “chronic diseases” specifically enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Rectal cancer is a chronic disease under 38 C.F.R. § 3.309(a) (as a malignant tumor).  However, after a review of all the evidence of record, lay and medical, the Board finds that the Veteran’s cancer was not incurred in-service, did not manifest within one year of discharge from service, and symptoms have not been continuous since service.  The Veteran’s STRs are silent as to complaints or diagnosis of rectal cancer, and the earliest record evidence of rectal cancer is not shown until decades after service separation, when the Veteran was diagnosed in June 2005.  Therefore, service connection is not established under the provisions of 38 C.F.R. § 3.303(b).
Nevertheless, the appellant is not precluded from establishing service connection for rectal cancer through proof of direct causation.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
The Veteran’s STRs are silent as to complaints or diagnosis of rectal cancer.  The earliest record evidence of rectal cancer is not shown until decades after service separation in June 2005, at which time private treatment records indicated diagnoses of rectal cancer and adenocarcinoma of the rectum.  See CT report dated June 23, 2005; Surgical Pathology report dated June 24, 2005.  However, the post-service treatment records are silent as to a causal connection between the cancer and service.
In an October 2014 VA medical opinion, the examiner opined that the Veteran’s rectal cancer was not related to his exposure to contaminated water at Camp Lejeune.  The examiner noted that the Veteran was exposed to potentially contaminated water at Camp Lejeune for 625 days, and that he was diagnosed with rectal cancer in June 2005, approximately 27 years after service at Camp Lejeune.  Referencing medical literature, the examiner explained that a majority of people diagnosed with colon cancer are older than 50, and that increased risk factors for colon cancer include obesity, a history of smoking, and a family history of colon cancer.  The examiner pointed out that the medical records reflect that the Veteran was over 50 when diagnosed with rectal cancer, that his Body Mass Index was greater than 30 near the time of his cancer diagnosis, that he had a history of smoking, and the Veteran’s maternal grandfather had colon cancer.  See VA medical opinion dated October 10, 2014.
The Board finds the VA examiner’s October 2014 medical opinion competent, credible, and probative:  It was authored by a licensed physician who reviewed the Veteran’s medical records and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment; the examiner also considered relevant medical literature concerning exposure to hazardous compounds known to have contaminated the water supply at Camp Lejeune and known risk factors for colon cancer.  See VA medical opinion dated October 10, 2014.  Notably, there are no medical opinions or other competent medical evidence of record that weighs against the VA examiner’s opinion.
Subsequent to the October 2014 VA medical opinion, the Veteran asserted that he smoked for only two years after separation from service.  See Notice of Disagreement dated February 25, 2015; Appeal to Board of Veterans’ Appeals (VA Form 9) dated May 2, 2016.  The medical evidence however conflicts.  In this regard, May 2009 private gastroenterology notes reflect that the Veteran had been a smoker and quit in 1986.  The Board places greater probative weight on the reports expressed to his gastroenterologist in 2009 for the purpose of treatment as opposed to the more recent statement provided for compensation purposes.  At any rate, the evidence is clear that the Veteran is a former smoker.  Neither the examiner nor the referenced medical literature differentiated the effects of smoking based on the number of years the subject had smoked.  As the Veteran is a former smoker, the examiner’s reference to a history of smoking is accurate and pertinent here.  Moreover, the examiner discussed other relevant risk factors that the Veteran had, such as his age at time of the cancer diagnosis, his obesity based on BMI, and the family history of colon cancer in the Veteran’s maternal grandfather.  
The Board also acknowledges the Veteran’s submission of a list of diseases, including rectal cancer, indicating that there is insufficient evidence to causally link the disease to exposure to contaminated water at Camp Lejeune.  See List submitted by Veteran to VA on May 2, 2016.  The Board understands the Veteran’s contention that there is not enough evidence to determine whether or not there is a positive link between the two.  The fact that remains is that there is no competent evidence establishing a positive relationship between his rectal cancer and the contaminated waters.  This list does not establish a positive relationship and cannot be used to support this claim.  
Although the Veteran sincerely believes that his rectal cancer was caused by exposure to contaminated water at Camp Lejeune, the question of whether a causal link exists between his cancer and Camp Lejeune’s water supply falls outside the realm of common knowledge of any lay person and is an issue requiring medical expertise.  Therefore, while the statements of the Veteran and other evidence are duly considered by the Board, the Veteran, respectfully, is not shown to be competent to render a diagnosis or a medical opinion with respect to the issue of entitlement to service connection for rectal cancer.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).
Accordingly, the Board concludes that entitlement to service connection for residuals of rectal cancer must be denied because the weight of the evidence is against the claim.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304; McClain, supra.  While the Board has considered the applicability of the benefit of the doubt doctrine, the preponderance of the evidence is against the Veteran’s claim, and that doctrine is not applicable in this appeal.  See 38 U.S.C. § 5107(b); Gilbert, supra.
REASONS FOR REMAND
Entitlement to service connection for asthma.
Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim.  See Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).
The Veteran asserts that his asthma was caused by exposure to contaminated water at Camp Lejeune during service.  See e.g. Notice of Disagreement dated December 15, 2016.  Private treatment records reflect a diagnosis of asthma in September 2010.  See New Patient Consult from private physician J.T.I., MD dated September 3, 2010.  The New Patient Consult lists an inhalation aerosol and “Singulair” among the medications the Veteran was taking prior to the 2010 consultation, medications the Veteran asserts he has been using “for years” to treat asthma.  See Notice of Disagreement dated February 25, 2015.  This evidence indicates a prior asthma diagnosis, and that there may be additional private treatment records relevant to this claim that are not of record.  Therefore, on remand relevant medical treatment records should be associated with the claims file.
Although the Veteran is competent to report the circumstances giving rise to the initial observable symptoms, as well as the nature of the symptoms during and after service, he has not been shown to be competent to diagnose more complex medical problems, such as asthma, or to opine on the etiology of such disorders, which are medical questions.  See Layno, supra.  Moreover, the Board is without medical expertise to determine the nature and etiology of the claimed disability. Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Accordingly, a VA medical opinion must be obtained to answer these questions.
The matter is REMANDED for the following action:
1. Ensure that all outstanding VA and private treatment records are associated with the claims file.  
2. Then, request a medical opinion from a Camp Lejeune Contaminated Water Subject Matter Expert as to whether the Veteran’s asthma is, at least as likely as not, etiologically related to the Veteran’s period of active service, including exposure to contaminated water during his service at Camp Lejeune, North Carolina.
Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and his competent lay assertions.  The need for an examination is left the discretion of the examiner selected to provide the opinion.
A clear rationale for all opinions is necessary.  If the requested opinion is not possible without resort to mere speculation, then the examiner must explain why.
(Continued on the next page)
 
3.  Then, readjudicate the remanded issue on appeal.
 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Farrell, Bradley 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency