14-15 773
14-15 773
| Board of Vet. App. | May 31, 2017Background
- Veteran served on active duty Aug 1976–May 1978 and was stationed at Camp Lejeune for at least 30 days.
- March 2009 VA RO denied service connection for pelvis chondrosarcoma; the Veteran did not appeal and the decision became final.
- Since 2009 the record contains new evidence: July 2013 VA exam, October 2014 treating oncologist opinion (favors service connection), September 2016 VA oncologist opinion (against), VA treatment records, and lay statements.
- VA amended Camp Lejeune rules (effective Mar 14, 2017) to create presumptive exposure for certain diseases; chondrosarcoma and prostate cancer are not among the enumerated presumptives.
- Board found the new evidence to be new and material, reopened the chondrosarcoma claim, merged the bone cancer/chondrosarcoma claims, and granted service connection for both chondrosarcoma (bone cancer) and prostate cancer as related to presumed Camp Lejeune water contamination.
Issues
| Issue | Veteran's Argument | VA/Board Argument | Held |
|---|---|---|---|
| Whether new and material evidence reopens final March 2009 denial of chondrosarcoma | New medical opinions and records since 2009 raise nexus and are relevant to prior denial | March 2009 decision is final absent new and material evidence; prior record lacked nexus evidence | Reopened: evidence since 2009 is new and material and raises reasonable possibility of substantiating the claim |
| Whether chondrosarcoma is service connected as related to Camp Lejeune exposure | Treating oncologist opines at least as likely as not that exposure caused cancer | VA examiners argued literature does not link solvents to chondrosarcoma; cause often idiopathic | Granted: Board gave greatest weight to treating oncologist and resolved reasonable doubt in Veteran’s favor |
| Whether prostate cancer is service connected as related to Camp Lejeune exposure | Treating oncologist opines at least as likely as not that exposure caused prostate cancer | VA examiners argued prostate cancer is common and literature does not establish link to exposure | Granted: Board found treating oncologist most probative and resolved reasonable doubt for service connection |
| Whether bone cancer and chondrosarcoma claims are distinct or should be merged/characterized | Veteran and RO treated as separate claims | Medical evidence shows same diagnosed condition; claimant seeks connection for symptoms/body part | Merged/recharacterized: bone cancer and chondrosarcoma treated as same claim under Brokowski/Clemons principles |
Key Cases Cited
- Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (Board must consider whether reopening is proper despite RO action)
- Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (claim scope may be satisfied by reference to body part or symptoms)
- Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of claim includes conditions reasonably encompassed by claimant's description)
- Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must evaluate submissions during relevant period as part of pending claim analysis)
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (elements required to establish service connection)