Veteranclaims’s Blog

September 23, 2021

Single Judge Application; contaminated Camp Lejeune drinking water; For decades, the drinking water at Camp Lejeune, North Carolina, was contaminated by volatile organic compounds, including trichloroethylene (TCE), perchloroethylene (PERC), benzene, and vinyl chloride; Straw v. Wilkie, 32 Vet.App. 374, 375 (2020), aff’d, 843 F. App’x 263 (Fed. Cir. 2021); Veterans stationed at Camp Lejeune between August 1, 1953, and December 31, 1987, are presumed to have been exposed to these substances, 38 C.F.R. § 3.307(a)(7) (2021), and certain listed medical conditions may be granted service connection on a presumptive basis due to such exposure, 38 C.F.R. § 3.309(f) (2021);

Filed under: Uncategorized — Tags: — veteranclaims @ 10:59 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6790
JAMES WEIKER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: Veteran James Weiker served in the United States Marine Corps from August 8, 1967, to July 16, 1970. Record (R.) at 255. Eighty-three days of that time was spent at Camp Lejeune, North Carolina. R. at 8, 195. Years later, he developed prostate cancer, a condition for which he sought service connection. R. at 400. He appeals a June 5, 2020, Board of Veterans’ Appeals (Board) decision that denied his request.1
For decades, the drinking water at Camp Lejeune, North Carolina, was contaminated by volatile organic compounds, including trichloroethylene (TCE), perchloroethylene (PERC), benzene, and vinyl chloride. Straw v. Wilkie, 32 Vet.App. 374, 375 (2020), aff’d, 843 F. App’x 263 (Fed. Cir. 2021). Veterans such as Mr. Weiker who were stationed there between August 1, 1953, and December 31, 1987, are presumed to have been exposed to these substances, 38 C.F.R. § 3.307(a)(7) (2021), and certain listed medical conditions may be granted service connection on a presumptive basis due to such exposure, 38 C.F.R. § 3.309(f) (2021). But because Mr. Weiker’s prostate cancer is not among them, see id., the Board was forced to consider service connection on only a direct basis, R. at 7; see Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Polovick
1 The Board also remanded a claim for entitlement to service connection for erectile dysfunction. We do not have jurisdiction over this nonfinal matter. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order).
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v. Shinseki, 23 Vet.App. 48, 52–53 (2009) (“Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.”).
Before the Board were two medical opinions on the matter. At the request of the veteran, a private examiner in 2013 reviewed various studies related to the Camp Lejeune contamination and noted that experts had concluded that there was inadequate or insufficient evidence to determine whether an association exists between prostate cancer and exposure. R. at 356. For that reason, he was “unable to definitively state whether . . . Mr. Weiker’s prostate cancer [was] a result of his exposure to contaminated water at Camp Lejeune.” Id. But, he said, it “could definitely be a possible association.” Id.
The following year, a VA examiner reviewed 32 studies related to the Camp Lejeune water contamination and offered an opinion against service connection. R. at 195. He began by noting that the veteran’s cancer arose approximately 45 years after service and that the veteran’s time exposed to the contaminants (83 days) was considerably less than the 18-month average for the subjects of the various studies available. Id. The examiner’s review of the literature and studies revealed, among other things, that there was a possible association between prostate cancer and exposure to two of the four compounds in the water at Camp Lejeune—PERC and TCE—but the only statistically significant association was found in occupationally exposed groups, as distinguished from environmental or residential exposures. R. at 198. In the occupational studies, the “estimates of exposure [were] significantly higher than the estimates of [Camp Lejeune] exposure” and involved subjects exposed for a duration of 5 or more years. Id. And “only the higher levels of exposure are associated with an increased risk of development of prostate cancer.” Id. By contrast, studies of individuals with environmental exposure revealed “no elevated risk of prostate cancer.” Id. In sum, the literature showed that, “with the possible exception of significant occupational exposure (which is greater than the estimated [Camp Lejeune] exposure) to PERC or TCE for greater than 5 years, there is no scientifically documented link between exposure to either of these solvents and the development of prostate cancer.” R. at 199.
The examiner further noted that the veteran’s advanced age was the “most important risk factor,” along with his hypertension and obesity—both of which carry increased risks of prostate cancer. R. at 195. Added to that, the veteran smoked 60 packs of cigarettes a year, which, according to the examiner, is a known cause of prostate cancer supported by many studies. R. at 195. For
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these reasons, the VA examiner found that it was less likely than not that his exposure to water contaminants at Camp Lejeune caused his prostate cancer. R. at 196.
Reviewing the opinions, the Board found the private examiner’s opinion “speculative” and dismissed it as lacking any probative value. R. at 8. By contrast, the 2014 VA examiner’s opinion contained a detailed rationale. Id. The Board added that the veteran’s attorney provided “vague” and “boilerplate” assertions that the 2014 VA opinion was inadequate, but he presented no meaningful contest on the issue. R. at 10.
On appeal, the veteran contends that the Board erred by labeling the 2013 medical opinion “speculative.” It wasn’t “entirely speculative,” he contends. Appellant’s Brief (Br.) at 3. Because the doctor stated that there was a possible association between his cancer and service, he asserts that that was enough to establish service connection. Id. at 4. And had that evidence been recognized as probative, the Board would have (or should have) realized that the evidence as a whole was in equipoise, entitling him to the benefit of the doubt. See 38 U.S.C. § 5107(b) (“When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”).
The 2013 examiner noted that the experts who had studied the issue at hand found inadequate or insufficient evidence to determine whether an association existed between prostate cancer and exposure at Camp Lejeune. R. at 356. For that reason, he couldn’t “definitively state whether Mr. Weiker’s prostate cancer was a result of his exposure,” but he admitted there “could definitely be an association.” Id. Although, as the veteran asserts, the “law does not require a definitive conclusion” from an examiner, Appellant’s Reply Br. at 2, it does require that the report contain “clear conclusions” based on reasoned analysis, Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (emphasis added). Like the examiner’s opinion in Hood v. Shinseki, which said it was “impossible to know,” the examiner’s statements here should have “signaled to the Board that the medical opinion was speculative and of little probative value.” 23 Vet.App. 295, 298 (2009). And, indeed, that signal came through clear and bright. The Board did not clearly err, which means it also did not err in failing to apply the benefit of the doubt in this case; there simply was no approximate balance in the evidence. Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that the benefit of the doubt applies if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise).
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The veteran’s remaining argument is that the 2014 VA medical examiner’s opinion was inadequate because it failed to respond to the 2013 opinion. But the VA medical examiner expressly mentioned the 2013 examiner by name and noted the substance of his opinion. R. at 197 (“09/08/13 Urocare Associates, Dr. T. Zaciewski, M.D., Letter”). And the substance of the VA examiner’s opinion was a complete rebuttal to any speculative conclusions drawn by the private examiner. Examiners are under no obligation to go tit-for-tat with fellow experts. The responsibility lies with the Board to ensure that it obtains expert input that describes the disability in sufficient detail, provides the essential rationale for any opinion rendered, and fully informs the Board’s decision on the medical issue at hand. Webb v. Wilkie, 32 Vet.App. 309, 314 (2020). These are the attributes that render a medical opinion adequate, and the veteran fails to show that any aspect of the 2014 opinion is lacking in any of these aspects.
Accordingly, the June 5, 2020, Board decision is AFFIRMED.
DATED: August 31, 2021
Copies to:
Jerusha L. Hancock, Esq.
VA General Counsel (027)

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