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Court Wins

Board Improperly Denied Service Connection for Prostate Cancer Based on Camp Lejeune Contaminated Water Exposure

December 24, 2019
cavc

Factual and Procedural History

The Veteran served on active duty in the United States Marine Corps from June 1984 to April 1988 as a field wireman.  From September 1984 to July 1985, he was stationed at Camp Lejeune, North Carolina.  The Veteran was diagnosed with prostate cancer in 2011 and has been seeking service connection based on exposure to contaminated water while serving at Camp Lejeune.  In June 2017, an expert in Camp Lejeune water contamination found that the Veteran’s prostate cancer was less likely than not “caused by or a result of his relatively brief exposure.”  Specifically, the expert noted that the Veteran was diagnosed with prostate cancer in 2011 at the age of 46, 26 years after being at Camp Lejeune.  Additionally, the Veteran had “scientifically supported risk factors for prostate cancer, including age, obesity, and ongoing smoking.”  Finally, at the time that the Veteran was at Camp Lejeune, the contaminated wells were being shut down, thereby dramatically reducing potential exposure to chemicals.

In December 2017, the Veteran argued that the June 2017 VA examination report was inadequate because the examiner employed a higher burden of proof in rendering a negative nexus opinion, and requested that the Board consider this argument.  Several months later, the Board issued a decision denying service connection for prostate cancer based on exposure to contaminated water at Camp Lejeune.

Board Denies Service Connection for Prostate Cancer, CCK Appeals to Court

On March 29, 2018, the Board denied service connection for prostate cancer, including as due to Camp Lejeune contaminated water exposure.  In its decision, the Board relied heavily on the June 2017 VA examination report.  Importantly, the Board did not address the Veteran’s argument regarding this examination.  Instead, the Board broadly found that the examination adequately provided the findings necessary to offer a resolution to the appeal.  CCK successfully appealed this decision to the Court of Appeals for Veterans Claims (CAVC).  In doing so, CCK presented multiple arguments challenging (1) the adequacy of the June 2017 VA examination report; and (2) the Board’s failure to address such arguments in the first instance.

CAVC Remands Veteran’s Prostate Cancer Claim

CCK argued, and the Court agreed, that the Board erred in failing to address the Veteran’s arguments regarding the adequacy of the June 2017 VA examination.  The Court found that the Board’s one-sentence statement regarding the adequacy of the June 2017 VA examination was nonresponsive to the Veteran’s argument.  The failure to address the Veteran’s argument before the Agency has deprived him of the meaningful opportunity to participate in the processing of his claim and is thus prejudicial error.  Ultimately, the Court determined that remand is required for the Board to properly address the adequacy of the June 2017 VA examination report.  On remand, the veteran may present, and the Board must consider, any additional evidence and argument.

 

To read the Court’s full decision, click here.