Citation Nr: 18132322
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-33 999
DATE:	September 6, 2018
ORDER
Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, and/or other environmental hazards. is denied.  
Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities is denied.  
FINDINGS OF FACT
1.   The Veteran served at the United States Marine Corps Base Camp Lejeune, North Carolina, from July 15, 1973 to July 29, 1975, and is presumed to have been exposed to contaminants in the water supply at such base.  
2.   The Veteran's prostate cancer was not manifested during his active military service, and is causally or etiologically related to active service, to include as due to exposure to contaminated water at Camp Lejeune.  
3.   The Veteran has service connected disabilities of hypertensive heart disease, rated as 60 percent disabling; acquired psychiatric disorder, rated as 50 percent disabling; and hypertension, rated as 10 percent disabling.  The Veteran's combined schedular rating is 80 percent.  

  The Veteran completed high school, and attended several years of college.  He has had occupational experience as a handy man and lawn care specialist; he last worked full time in April 2013.   
4.   The Veteran's service-connected disabilities, alone, have not rendered him unable to secure or follow a substantially gainful occupation.  
CONCLUSIONS OF LAW
1.   The criteria for service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, and/or other environmental hazard, have not been met.  38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.  
2.    The criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16, 4.19.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1973 to July 1975 and from September 1979 to September 1983.  
This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from a September 2012 rating decision, which denied the Veteran’s claims of entitlement to service connection for prostate cancer, due to exposure to toxic water drinking water at Camp Lejeune, and entitlement to a TDIU.  He perfected a timely appeal to that decision.  
In his November 2013 substantive appeal, the Veteran requested a hearing before the Board; however, he subsequently withdrew that request in January 2014.  Therefore, the Board deems the hearing request withdrawn.  See 38 C.F.R. § 20.704(e) (2017).  
In October 2017, the Board remanded the case to the RO for further evidentiary development.  Following the requested development, a supplemental statement of the case (SSOC) was issued in May 2018.  
1. Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, and/or other environmental hazards.
The Veteran maintains that he developed prostate cancer as a result of his exposure to contaminated water while stationed at Camp Lejeune.  The Veteran also maintains that his prostate cancer first manifested during service, as evidenced by elevated PSA levels.  Alternatively, the Veteran has contended that he was exposed to herbicide agents from contaminated aircraft, tanks, and naval vessels.  
Service connection may be granted for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. § 1131. 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009).  
Certain diseases, including prostate cancer, will be presumed service-connected if a veteran was exposed to certain herbicide agents, including that found in Agent Orange, during active service, even if there is no record of the disease during service.  38 C.F.R. §§ 3.307 (a) (6), 3.309(e).  
Effective March 14, 2017, VA regulations regarding presumptive diseases were amended to add diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953 to December 31, 1987.  The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 
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)(ii)(7)(i). 
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)(ii)(7)(iii).
Based on analyses of scientific studies involving these chemicals, the NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants.  The NRC analysis found that no disease fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited/suggestive evidence of an association, which included esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. Prostate cancer was not listed among those diseases.  Moreover, prostate cancer is not identified in VA's Final Rule for conditions presumptively associated with Camp Lejeune exposures.  See 82 Fed. Reg. 4173, 4173-4185.  
The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature.  Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  
In this case, the records clearly indicate that the Veteran has a diagnosis of prostate cancer.  Significantly, during a VA examination in November 2010, it was noted that prostate cancer was diagnosed in May 2010; following a physical examination, the examiner reported a diagnosis of adenocarcinoma of the prostate stage I.  A subsequent VA genitourinary examination in March 2011 confirmed a diagnosis of prostate cancer.  Therefore, the Veteran has established the first element required for service connection.  
Of record is a memorandum dated in May 2009, wherein it was noted that, to date, the JSRRC can provide no evidence to support a Veteran s claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era.  In an administrative decision, dated in August 2014, the JSRRC coordinator determined that the information required to verify or confirm Vietnam in-country service or other means of alleged exposure are insufficient to send to JSRRC and/or insufficient to research the case any further which would benefit the Veteran.  
However, the Veteran's military personnel records indicate that he served in the Marine Corps and was stationed at the Marine Corps Base in Camp Lejeune, North Carolina from July 1973 to July 1975.  As such, he is presumed to have been exposed to contaminants in the water supply at such base.  There is, however, no presumptive service connection for prostate cancer based on exposure to contaminated water at the base, and the record does not contain competent evidence that exposure to contaminated water caused the Veteran's prostate cancer.  
Of course, where presumptive service connection is not warranted, VA must still consider entitlement to service connection on a direct basis.  See Combee v. Brown, 34 F.3d 1039, 1040 (Fed. Cir. 1994).  Here, as concerns direct service connection, the Board finds that the preponderance of the evidence is against a finding that prostate cancer manifested during service or is otherwise related to service, to include as due to exposure to contaminated water.  In making this determination, the Board acknowledges that there are conflicting opinions, but finds the May 2018 DBQ opinion more probative.  
Significantly, during a VA examination in November 2010, it was noted that the Veteran served on active duty in the Marines from 1973 to 1975 and was stationed in Camp Lejeune, North Carolina; his duty was as a tanker worker.  It was reported that the Veteran also had active service from 1979 to 1983 in the Army, and he was stationed in Germany.  The examiner noted that the Veteran had been having elevated PSA since 2009; he was then referred to a urology clinic in 2009 and was diagnosed with adenocarcinoma of the prostate after a TRUS biopsy.  The Veteran stated that his usual occupation was not affected secondary to the condition, nor were his daily activities affected.  Following an examination, the examiner reported a diagnosis of stage I adenocarcinoma of the prostate.  The examiner opined that the Veteran’s prostate cancer was not related to exposure to contaminated water while stationed at Camp Lejeune.  In so finding, the examiner stated that, according to an October 2010 Veterans Health Administration (VHA) issue brief, there had been no direct link between prostate cancer and exposure to toxic chemicals in drinking water.  
In an addendum to the November 2010 VA examination, dated in March 2011, the examiner opined that the Veteran’s current prostate cancer was at least as likely as not caused by or the result of his exposure to contaminated water at Camp Lejeune from 1957 to 1987.  However, the examiner also opined that it was less likely as not that the Veteran’s prostate cancer was due to or related to drinking water at Camp Lejeune between 1957 and 1987.  
The AOJ subsequently sought a medical opinion in June 2012 in order to clarify the contradictory opinion provided by the March 2011 VA examiner.  In a June 2012 VA medical opinion, the examiner opined that the Veteran’s current prostate cancer was less likely as not caused by or the result of his exposure to contaminated water at Camp Lejeune from 1957 to 1987.  In so finding, the examiner stated that, according to the National Research Council (NRC) Report on Carcinogens, occupational exposure to trichloroethylene (TCE) found in the contaminated water at Camp Lejeune between 1957 and 1987 has been associated with excess incidences of prostate cancer although the studies were based on mall cohorts.  The examiner further noted that other risk factors for prostate cancer are male ex (one man in six will get prostate cancer, in his lifetime) age over 40 black race family history and diet high in fat.  The examiner concluded that it is less likely as not that the Veteran prostate cancer is due to or related to his service-related drinking water at Camp Lejeune between 1957 and 1987.  
In May 2018, VA sought additional medical opinion regarding the etiology of the prostate cancer.  Following a review of the claims file, the examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness.  The examiner explained that the Veteran has several other (and more strongly associated) prostate cancer risk factors such as age, ethnicity, and positive family history.  The examiner also noted that the Veteran also was a heavy cigarette smoker with 28-30 pack-year history, and had elevated lipids-factors which may contribute.  The presence of other well-accepted risk factors and a comparatively short exposure duration make an association unlikely.  The examiner stated that prostate cancer was less likely as not (less than 50 percent probability) incurred in or caused by the veteran’s exposure to contaminated water at Camp Lejeune.  The prostate cancer is less likely as not (less than 50/50 probability caused by or a result of the veteran’s exposure to contaminated water at Camp Lejeune.  The examiner observed that prostate cancer is common; the overall lifetime risk for diagnosis in the US is 1 in 6; he stated that known risk factors are age (over age 40 and increasing with age, and ethnicity with African American men affected more frequently at every age.  A positive family history increases an individual’s risk. High fat intake may play a role.  The examiner further noted that prostate cancer is not currently definitively considered to be a result of solvent exposures of the type seen at Camp Lejeune.  The occupational studies that provide some support to a link are based on decades of exposure, greatly exceeding the 13 months of exposure for the claimant.  The examiner noted that the presence of other well-accepted risk factors and lack of a strong association with prostate cancer and comparatively short exposure duration make an association unlikely.  Therefore, the examiner concluded that prostate cancer was less likely as not (less than 50 percent probability) incurred in or caused by the veteran’s exposure to contaminated water at Camp Lejeune.  
Upon review of the entire evidence of record, to include the treatment records, lay statements of the Veteran, records of conditions at Camp Lejeune, and the medical opinions of record, it is fact that the Veteran was exposed to contaminated water while stationed at Camp Lejeune, North Carolina during his period of active service.  However, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for prostate cancer as a result of his exposure to the contaminated water at Camp Lejeune.  The Board finds the May 2018 examiner’s opinion and rationale to be highly probative against the Veteran’s claim.  The examiner conducted a review of the claims folder, and provided a well-reasoned rationale for his opinion.  
The Board has considered the Veteran’s assertions that his prostate cancer is caused by his exposure to contaminated water at Camp Lejeune.  The Veteran is not competent, however, to offer an opinion as to the etiology of prostate cancer due to the medical complexity of the matter involved.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
A preponderance of the evidence is against a finding that the Veteran’s prostate cancer originated as a result of the Veteran’s exposure to contaminated drinking water at Camp Lejeune.  As noted above, the Veteran was first diagnosed with prostate cancer in May 2010, more than two decades after service separation, and, while the Veteran reported elevated PSA during service, at the November 2010 examination, it was noted that elevated PSA levels were noted in 2009.  The Board finds the later diagnosis to be more probative as to when the Veteran first had elevated PSA level.  Moreover, no competent medical provider has opined that the Veteran’s prostate cancer began as the result of his exposure to contaminated drinking water.  The Veteran’s service treatment records and separation examination are absent of relevant complaints and he has additional risk factors including age and ethnicity.  The May 2018 examiner also indicated that the presence of other well-accepted risk factors and lack of a strong association with prostate cancer and comparatively short exposure duration make an association unlikely.  Therefore, the examiner concluded that prostate cancer was less likely as not incurred in or caused by the veteran’s exposure to contaminated water at Camp Lejeune.  
Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (whether the Veteran's prostate cancer is attributable to the Veteran's presumed in-service exposure to contaminated water) falls outside the realm of common knowledge of a layperson.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose a type of cancer).  This is because whether a condition is due to exposure to contaminated water is a complex question that requires medical expertise to competently address.  The evidence does not show that the Veteran has expertise in this area and is therefore considered a layperson.  The competent medical opinion of record addressing the claimed relationship is negative.  
The Board notes that under the provisions of 38 U.S.C. § 5107 (b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Service connection for prostate cancer, to include as due to in-service exposure to contaminated water, is not warranted.  
2. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities
The Veteran essentially contends that he is unemployable as a result of his service-connected disabilities.  In a statement dated in May 2013, the Veteran reported that he was dismissed away from his job on April 8, 2013.  
When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where the Veteran has a single service-connected disability that is rated as 60 percent disabling or more; or when there are two or more disabilities, at least one disability is rated at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation.  See 38 C.F.R. § 4.16 (a).  Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes.  A total disability rating may also be assigned on an extra-schedular basis, under the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a).  
Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16 (a).  Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain.  Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991).  Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age.  38 C.F.R. § 3.341 (a); see also 38 C.F.R. § 4.19 (2017) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  
In this case, the Veteran is service connected for hypertensive heart disease, rated as 60 percent disabling; acquired psychiatric disorder, rated as 50 percent disabling; and hypertension, rated as 10 percent disabling.  His combined schedular rating is 80 percent.  Thus, the Veteran meets the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16 (a).  
In order to establish entitlement to TDIU benefits, there must be impairment so severe that a claimant cannot follow a substantially gainful occupation.  38 C.F.R. § 3.340.  In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  
The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  Moore v. Derwinski, 1 Vet. App. 356 (1991).  The fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  
After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran's service-connected disabilities do not preclude his ability to engage in substantially gainful employment. Significantly, during the November 2010 VA examination, it was noted that the Veteran moved to Texarkana, Arkansas in 1989 and has worked sporadically since then; he stated that he worked as a handy man and possibly some lawn care but only if someone calls as he reports he does not do any type of regular work.  Therefore, while the record indicates that the Veteran has not worked regularly, there is no indication that his periods of unemployment was caused by his service-connected disabilities.   
It is noteworthy that, in support of his claim, the Veteran submitted a copy of a disciplinary action against him in December 2012 for carelessness; this document indicate that the Veteran was given an oral warning and was counseled about being more careful in performing his job.  In a statement dated in May 2013, the Veteran reported that he was dismissed away from his job on April 8, 2013; he did not report that his dismissal was due to his service-connected disabilities.  The Veteran has not presented any evidence that his service-connected disabilities cause him would prevent him from utilizing his skills to do work of the nature he previously performed or engage in other substantially gainful occupations.  
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Based upon the foregoing, the Board finds that the preponderance of the evidence is against the claim.  The evidence does not demonstrate that the Veteran's service-connected disabilities alone, when considered in association with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation.  As such, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability.  Entitlement to TDIU is thus not established.  In addition, as the record indicates that the Veteran is currently employed, the Board finds that referral for consideration of a TDIU rating on an extraschedular basis is not required, and the claim is denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.
 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

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