Citation Nr: 1207245 Decision Date: 02/27/12 Archive Date: 03/09/12 DOCKET NO. 09-11 100A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran had active service from August 1972 to April 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that decision, the RO confirmed and continued a previously denied claim of service connection for lung cancer because new and material evidence had not been received to reopen the previously denied claim. In a July 2010 decision, the Board reopened the previously denied claim of service connection for lung cancer, and remanded the matter back to the RO for additional development of the record. As a result of recent VA policy changes that directly affect this claim, the appeal is once again REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for lung cancer. He asserts that his lung cancer is a direct result of exposure to toxic chemicals in service including Agent Orange. Although service connection for lung cancer may be presumed for Veterans who served in Vietnam during the Vietnam War Era, this Veteran did not serve in Vietnam. The Veteran served during the Vietnam Era, but his DD Form 214 reflects that he had no foreign service. The Veteran does not dispute this fact; but rather, he asserts that his exposure to toxic chemicals, including exposure to Agent Orange, occurred while he was stationed at Camp Lejeune, North Carolina. The Veteran was afforded a VA examination in October 2010 to address the question of a possible nexus between his current lung cancer and exposure to toxic chemicals in service. The October 2010 VA examiner noted that the Veteran was stationed at Camp Lejeune from November 1972 to April 1974; and, he was diagnosed with lung cancer in December 2001. The Veteran reported to the examiner that during service his job duties included loading and hauling food, DDT, agent orange, car parts, truck parts, 1/2 engines, brake drums, materials to make runways and insulation. The Veteran reported that he was exposed to chemical splashes and that spills were cleaned up by hosing down the floor and then washing himself. Additionally, the Veteran reportedly loaded pallets that were flown out of Cherry Point, North Carolina, and was only given paper gowns, shields, masks, and thick rubber gloves. The examiner also noted that the Veteran had been a heavy smoker most of his life. He smoked 3 packs per day for two years but started smoking at age 15 and still smoked a quarter pack per day. Based on the above findings, the examiner opined that the Veteran's long history of smoking was at least as likely as not responsible for his lung cancer. The examiner pointed out that smoking was the Veteran's biggest risk factor for lung cancer. The examiner also noted that the role of other potential toxins in the development of his lung cancer was raised given his written statements concerning exposure during loading and transporting Agent Orange, DDT and other potential carcinogens state side. However, given his background of heavy smoking, the examiner was unable to state that the Veteran's potential military exposure to Agent Orange or other chemicals contributed substantially to his development of lung cancer without resorting to mere speculation. The examiner also noted that the RO had not conceded the Veteran's exposure to Agent Orange, and referred to a September 2010 memorandum from JSRRC which was unable to corroborate exposure to Agent Orange. In other words, the examiner's opinion was not only based on a long history of smoking, but also on the fact that there was no corroborating evidence of exposure to toxic chemicals in service. In a March 2011 memorandum, the JSRRC coordinator made a formal finding that there was a lack of information necessary to attempt to corroborate herbicide exposure on a factual basis as described by the Veteran as having occurred at Camp Lejeune. However, in a statement dated in September 2010 the Veteran reported that he worked for the engineers division and was assigned tasks including loading chemicals for shipment throughout his time at Camp Lejeune. He also reported an incident in the summer of 1973 where all of the men in his company went swimming in a creek on base where JP-5 fuel was dumped. Everyone got blisters, some so severely that they had to go to the hospital. The Veteran did not go to the hospital but did have some blisters drained. The Veteran's representative argues that additional development is warranted in light of the Veteran's statements. The Board agrees. On remand, the RO should attempt to verify exposure to chemicals, including agent orange, while the Veteran was stationed at Camp Lejeune. There has been a recent change of VA policy with regard to the development of claims involving Veteran's who served at Camp Lejeune between 1957 and 1987. This policy involves claims of service connection for disabilities due to contaminated drinking water. VA is responsible for developing all theories of entitlement, whether or not they are raised by the appellant. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). Here, as the Veteran was potentially exposed to contaminated water during service at Camp Lejeune, service connection for lung cancer on this basis must be considered for the reasons set forth below. It has been established that veterans who served at U.S. Marine Corps Base Camp Lejeune, North Carolina, were potentially exposed to contaminants present in the base water supply prior to 1987. See Training Letter 10-03. The chemical compounds involved have been associated by various scientific organizations with the possible development of certain chronic diseases. However, many unanswered questions remain regarding the extent of base water contamination, the type and duration of exposure experienced by base personnel, and the likelihood that contaminant levels in the water supply were high enough to result in a particular disease. While these issues are being studied, the Department of Veterans Affairs (VA) has determined that disability claims from Veterans who served at Camp Lejeune during this period deserve special handling to ensure fairness and consistency in claims processing. As a result, adjudication of these claims has been centralized at the Louisville, Kentucky, Regional Office with tracking measures initiated. For background purposes, in the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. The main source of TCE contamination was on-base industrial activities, while the main source of PCE was an off-base dry cleaning facility. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. These water systems served housing, administrative, and recreational facilities, as well as the base hospital. Department of the Navy estimates indicate that as many as 630,000 active duty personnel may have been exposed. The contaminated wells supplying the water systems were identified and shut down by February 1985. The Agency for Toxic Substances and Disease Registry (ATSDR), a branch of the Department of Health and Human Services, conducted a Public Health Assessment of Camp Lejeune in 1997, which did not determine whether base personnel experienced any long-term health effects from consumption of the contaminated water. However, the assessment indicated that the drinking water contaminants at Camp Lejeune created a "past public health hazard." Follow up studies by ATSDR focused on potential birth defects experienced by mothers exposed to the drinking water. In 2008, as public awareness of Camp Lejeune increased, the Navy sent an informational outreach letter to those individuals who could be identified as having served there between 1957 and 1987. Apparently, the Navy felt that including individuals serving until 1987 would cover potential exposure from any residual contaminants present in the water beyond the well closings in 1985. The letter notified these former service members that "unregulated chemicals were discovered in some of the base drinking water systems" and encouraged them to participate in a registry so as to receive information from new health-related scientific studies initiated by the Navy. These studies involved the National Academy of Sciences' National Research Council (NRC) and ATSDR. Based on a congressional mandate, the Navy requested that NRC undertake a study to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009), NRC reviewed previous work done by ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual. To address potential long-term health effects, NRC focused on diseases associated with TCE, PCE, and other VOCs. Based on analyses of scientific studies involving these chemicals, NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. The NRC analysis utilized categories of potential disease "health outcomes." The categories included: (1) sufficient evidence of a causal relationship; (2) sufficient evidence of an association; (3) limited/suggestive evidence of an association; (4) inadequate/insufficient evidence to determine whether an association exists; and (5) limited suggestive evidence of no association. The analysis found that no diseases 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. A number of diseases were also identified that fell into the category of inadequate/insufficient evidence to determine whether an association exists. NRC indicated that placement of diseases in these categories was based primarily on studies of highly exposed industrial workers, where the amount and duration of toxic chemical exposure greatly exceeded that experienced by individuals at Camp Lejeune. ATSDR responded to the NRC report in August 2009 with a plan for additional studies, supported by the Navy, to assess the human health risks associated with the Camp Lejeune water contamination. The plan included: a continuation of water flow computer modeling studies to generate potential contaminant exposure rates and durations; a re-analysis of data collected on birth outcomes; studies on birth defects and childhood cancers; and further epidemiological studies based on mortality and health surveys that would be distributed to former Camp Lejeune residents. ATSDR also initiated a series of public hearings to receive input from individuals who had served at Camp Lejeune. In a 2010 letter to the Navy, ATSDR again responded to the NRC report, indicating its belief that the report minimized the potential long-term health effects of exposure to the water contamination. The letter stated the view that "there was undoubtedly a hazard associated with drinking the contaminated water at Camp Lejeune." ATSDR pointed out that, although the NRC report found only limited/suggestive evidence for any diseases associated with the contaminated water, other scientific organizations considered the contaminants to be carcinogenic. For example, regarding TCE and PCE, the International Agency for Research on Cancer (IARC) classifies them as "probable human carcinogens" while the National Toxicology Program (NTP) refers to them as "reasonably anticipated to be a human carcinogen." Additionally, both IARC and NTP label benzene and vinyl chloride as "known human carcinogens." Although the ATSDR letter emphasizes the fact that the water contaminants themselves have been generally associated with potential carcinogenic health outcomes in humans, there is currently only speculation as to the extent of exposure and actual effects on the population at Camp Lejeune. However, ATSDR indicates that its planned studies, making use of computerized water flow modeling and the epidemiological mortality and health survey, will provide a higher level of exposure predictability and definable health outcomes than are recognized as possible by NRC. Evidence development for disability claims based on water contaminant exposure at Camp Lejeune requires obtaining verification of actual service at Camp Lejeune and as much detail as possible about that service. It also requires verifying, with medical evidence obtained through a VA medical examination or other authoritative medical source, whether a claimed current disease or disability is at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune. A number of diseases are identified that meet the criterion of being associated with exposure to the specific Camp Lejeune water contaminants, based on human and experimental animal studies. Manifestation of any of these diseases would be sufficient to initiate a VA medical examination and request an opinion regarding its relationship to Camp Lejeune service. Lung cancer is one of the listed diseases. Verification of service at Camp Lejeune has already been established. Additionally, when not specified in the records, efforts should be made to obtain the length of time served at Camp Lejeune, preferably the dates of arrival and departure. When feasible, it is also desirable to obtain the Veteran's work duty location and information regarding whether the Veteran resided on base or off base. There is some indication from ATSDR that certain base locations may have been associated with higher levels of water contamination. However, this has not yet been established with certainty. Obtaining as complete a picture as possible of the Veteran's Camp Lejeune service will assist medical examiners with determining the likelihood of a nexus between water contaminant exposure and disease development. Scientific organizations, including NRC and ATSDR, have determined that some evidence is available that suggests the possible association between development of certain diseases and exposure to the chemicals known to have contaminated the water at Camp Lejeune. Where associations are recognized, they are often based on experimental animal studies involving exposure dose rates generally considered to be in excess of the amount of exposure experienced by Camp Lejeune personnel. To date, there are no definitive scientific studies that can provide conclusive evidence that an individual who served at Camp Lejeune during the period of water contamination developed a particular disease as a result of that service. There are many unanswered questions regarding the levels of water contamination at various base locations, the amount and type of exposure experienced by any given Veteran who served there, and the scientific probability that a Veteran's particular claimed disease resulted from the service at Camp Lejeune rather than from some other source. As a result, there are currently no "presumptive" diseases attributed to service at Camp Lejeune by statute, regulation, or VA policy. On the other hand, the development of certain diseases are more likely than others to be associated with exposure to the chemical contaminants known to have been in the water at Camp Lejeune. Each of the chemical compounds present in the contaminated water has been shown by toxicologic or epidemiologic studies to be associated with some form of negative health outcome. Although certain disease manifestations may be associated with one of the specific contaminants found in the water and not associated with another, it is currently impossible to determine which contaminants, if any, were in the Camp Lejeune water consumed or used by a particular Veteran. Therefore, until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Service connection for any disability claimed to have resulted from contaminated water exposure at Camp Lejeune requires sufficient medical evidence that the disability is related to that exposure. This medical evidence will generally come from a competent and qualified medical examiner who provides an opinion establishing a rational nexus or link between the claimed disability and the exposure. Some diseases, as noted below, including lung cancer for example, have been scientifically associated to a greater or lesser extent with exposure to the chemical contaminants in the water at Camp Lejeune. However, this does not mean that service connection can automatically be established for a Camp Lejeune Veteran claiming one of these diseases. It is up to a competent medical authority, based on each Veteran's individual case, to determine whether it is at least as likely as not that the claimed disease or disability has resulted from the contaminant exposure at Camp Lejeune. Sufficient medical evidence to establish the required nexus may come from a private physician or other competent private medical authority. VA regulations at 38 C.F.R. § 3.159(c)(4) serve as the basis for requesting medical examinations and opinions in claims based on Camp Lejeune service. Under these regulations, an examination should be requested when the claim: (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. These requirements establish a relatively low threshold for requesting medical examinations for Camp Lejeune Veterans. The first requirement is met when a Veteran provides any credible lay or medical evidence showing a current diagnosis or symptoms of a disease or disability. The second is met when service at Camp Lejeune between 1957 and 1987 is verified. The third is met when the claimed disease or disability is one that can reasonably be associated with the known water contaminants at Camp Lejeune. This includes, but is not limited to, lung cancer, as noted below, because it has been scientifically associated with exposure to the water contaminants. When examinations are requested, it should be kept in mind that these claims represent a unique situation for VA medical examiners. They must determine, on a case-by-case basis whether a particular claimed condition is linked to contaminated water exposure. In order to assist them with their assessment and determination, the regional office must provide them with the following Appendices to VBA Training Letter 11-03. This information replaces the Camp Lejeune "Fact Sheet" intended for VA examiners found in Training Letter 10-03. Appendix A, Internet websites related to the issue of contaminated water at Camp Lejeune, Appendix B, Diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987. Appendix C, Websites describing potential health effects of exposure to chemical contaminants present in the water supply of Camp Lejeune between 1957 and 1987, and Appendix D, Notice to Examiners Evaluating Claims Based on Service at Camp Lejeune. This information is intended to provide the VA examiners with an adequate basis for providing a reasoned opinion. This opinion is a critical element for evaluating the claim. Therefore, if the examiner fails to provide a reasoned opinion and resorts to a statement such as "an opinion cannot be made without resort to mere speculation," the examination should be returned as inadequate. Appendix B of VBA Training Letter 11-03 provides a list of diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987. The National Academy of Sciences' National Research Council published its Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009. 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. Fourteen disease conditions were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. They include: • esophageal cancer • lung cancer • breast cancer • bladder cancer • kidney cancer • adult leukemia • multiple myeloma • myleodisplasic syndromes • renal toxicity • hepatic steatosis • female infertility • miscarriage, with exposure during pregnancy • scleroderma • neurobehavioral effects The Veteran was stationed at Camp Lejeune between 1972 and 1974; and, he has lung cancer. As such, additional development is necessary, as noted above, to determine whether his lung cancer at least as likely as not resulted from the contaminated drinking water at Camp Lejeune. Finally, the Veteran or his representative may wish to present a motion to the Board requesting advancing the appeal on the docket due to serious illness pursuant to 38 C.F.R. § 20.900 (2011). Accordingly, the case is REMANDED for the following action: 1. Request from the Veteran information about his time spent at Camp Lejeune, including his housing location, how much time he spent on and off base, and his work duty location(s). 2. Furnish the details of exposure of herbicides (see statement of the Veteran dated in September 2010) to the Compensation and Pension Service and if warranted the JSRRC pursuant to M21-1MR, IV.ii.2.C.10.o.4-6. 3. After completion of the above, schedule the Veteran for a VA examination to obtain a medical opinion as to the likely etiology of the Veteran's lung cancer, given his service at Camp Lejeune between 1972 and 1974. Importantly, the examiner must be provided with the claims file, a copy of this remand, and a copy of VBA Fast Letter/Training Letter 11-03 with the 4 appendices, for review in conjunction with the examination. The examiner should be notified of the following: The water supply at Camp Lejeune, North Carolina, was contaminated between 1957 and 1987 with a number of chemical compounds that have been associated by scientific organizations with the potential for developing certain diseases. These include trichloroethylene (TCE), tetrachloroethylene, also known as perchloroethylene (PCE), benzene, and vinyl chloride. The Veteran you are examining has verified service at Camp Lejeune during that period and is claiming service connection for lung cancer. Please opine whether it is at least as likely as not that the lung cancer is related to the Veteran's exposure to contaminated water while serving at Camp Lejeune, and provide a medical rationale for that determination. Information on how long the Veteran served at Camp Lejeune, and whether the Veteran lived on or off base, should be considered. The examiner should also provide an opinion as to whether it is at least as likely as not that the lung cancer is otherwise related to the Veteran's military service and provide a complete rationale for the opinion. In that regard, the RO has been requested to conduct additional development to determine whether the Veteran was exposed to herbicides. A complete rationale for all opinions proffered must be included in the report provided. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 4. After ensuring the examination report is sufficient and undertaking any further development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case in accordance with 38 C.F.R. § 19.31(b)(1) and be given an opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).