From the Al Unser Memorial Fort Fumble in Albuquerque, New Mexico:
Camp Le Jeune, if spelled correctly, is French as most know. By rights, when named, it would have been more appropriate to call it Camp pour le jeune fils translated as Camp for the Young Men. How the Frogs managed to plant their flag in North Carolina or why the Marines would ever bite on that one is a mystery for the ages considering they didn’t much cotton to them fellers from Tripoli.
As most know in our line of work, Camp Lejeune has less than perfect groundwater due to the military’s penchant for pecunious overpurchasing of chemicals and their equally penurious proclivity for disposal of same. Over a thirty year span, unscrupulous folks purportedly dumped vast quantities of really nasty chemicals down the tubes and then proceeded to deny Veterans’ claims of injury due to cancer. Eventually, science caught up with the disease process and it became painfully obvious another Agent Orange “event” was brewing. Ruh-oh Rorge. Generally speaking, when this happens, the EPA is less than enthusiastic about declaring it a Superfund site. They would a) prefer it go away; b) the Govt. just settle and get out of it or c) let the VA play with it for about 50 years like AO. News flash. Option C is now in effect.
With no manual on how to construct a viable denial process, they turned to the Nehmer protocols and tried valiantly to limit the number of diseases covered and the scope of who, exactly, qualified. Instead of permitting a truly presumptive “I was there in 1967 so therefore my breast cancer was caused by it” rationale, the VA has striven to obfuscate, demand proof of “boobs on the ground” and required true Independent Medical Opinions (IMOs) to support any grants. Consequently, very few have been successful yet. As most in the Veteran legal profession are also aware, very few of those denied have the stamina or physical constitution to continue the fight-especially assuming it is a futile endeavour where a monolithic entity as enormous as the government is concerned. It’s true. Every year, Veterans file 1.4 million claims against the VA for service-connected injuries. 15% are granted leaving 85% denied. Of those 85%, fewer than 12 % choose to appeal their denials. I submit that the claims were not frivolous in the first instance. Many feel they have given it their best shot after being cajoled into it by the local VSO. Here’s the story on one of our sisters who chose to stand and fight. Your’re gonna like this Marine Gal.
Meet Jane Vet. This being a BVA decision, it will not reveal her identity further than being a resident of the great state of New Mexico- the one that has so much background radiation from Sandia’s Labs that it glows in the dark. Janebo signed up at the height of the Vietnam war in 1967 in what, as a woman, can only be perceived as a truly patriotic gesture. That she chose the Marines indicates she actually wanted to be more than just “all you can be”. She wanted to be a MARINE. By reading the decision, her subsequent marriage to a fellow Marine is further proof of her commitment to America’s continued freedom and a strong vein of patriotism. From what I’ve heard, being a Marine and marrying a Marine is a very difficult, unrewarding task from a female spousal perspective.
Here’s what Jane was up against when she filed way back in late 2010:
The National Academy of Sciences’ National Research Council (NRC) published its report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects,” in 2009. This report included a review of studies addressing exposure to TCE and PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. Fourteen diseases were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. These include esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodisplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. See VBA Manual M21-1, IV.ii.1.L.15.a., Appendix B (2015). The list of 14 diseases in this NRC report is not an exhaustive list, however.
Clearly, the NAS and it’s research arm (NRC) conceded breast cancer was a possibility but that wasn’t enough for VA. Much like our endless efforts to show Hepatitis C is almost a foregone conclusion from jetguns, the VA is adding a new layer of “proof” that these chemicals specifically affected the afflicted individual. Her testimony was credible once it was finally allowed to be entered into the record. That little brain fart by the wunderkind raters at the Albuquerque RO cost her of several years while waiting on a remand back from the BVA to get her requested hearing. Imagine if she was asking for TDIU? I can almost guarantee her c-file would be bereft of any SSI/SSD folder.
Now allow me to show you just how biased the “independent process” is in obtaining nexus information on any given disease/ injury. To begin with, let’s look at the idiot’s delight syndrome every VSO engages in. Fully well knowing since Mario Caluza’s misadventures in Manila back in 1994, that a real connection between an event in service and a present disease is a prerequisite for service connection, Jane’s DAV service representative blithely allowed her to go to her claims demise with no IMO. On appeal, she was beginning to get the hang of it and talked her doctor into a “pseudo” nexus that had a few too many “could of’s or ‘would of’s and “it can’t not be said with any certainty that the barkwater wasn’t the root cause of the boob cancer”. Won’t work. Too equivocal.
She decided to respond to the VA examiner’s “non-nexus” that basically blew bubbles and punted:
The Veteran was afforded a VA examination in September 2010. The examiner stated that he was unable to opine regarding whether the Veteran’s breast cancer was due to exposure to contaminated drinking water while stationed at Camp Lejeune without resort to mere speculation.
This is against the law in 56 VAROs so I’m not sure how anyone could use this for denial purposes. To her credit, she marched smartly in to see her VA doctor and get his opinion.
The Veteran submitted a September 2010 letter from her VA treating oncologist, E.M., M.D., Hematology/Oncology Section Chief, in support of her claim. Dr. E.M. states that, according to the Agency for Toxic Substances and Disease Registry (ATSDR), reported problems associated with exposure to the chemicals found in the water at Camp Lejeune include breast cancer. Dr. E.M. also cited the results of a study that confirm findings from a prior study and “suggest that women with the highest PCE exposure levels have a small to moderate increased risk of breast cancer.” Dr. E.M. opined that, while it cannot be said with certainty what caused the Veteran’s cancer, “it is not unreasonable to assume that [the Veteran’s] exposure to TCE and PCE while stationed at Camp Lejeune was a contributing factor to [her] current breast cancer diagnosis.”
It’s clear that the good VA doctor loved his patient but was not prepared to go out on the little branches and state with any certainty that “It is more likely than less likely that the current breast cancer Miz Jane suffers is a direct cause of the water she ingested at Camp Lejeune”. It might have cost him his job and he knew it. More recently (2011) the VBA has forbidden this practice so he’s substantially protected against it ever happening again.
In response, VA promptly (five months) countered with their usual lunacy. What I find interesting is the depths the next VA Examiner went in researching Jane’s family history of breast cancer (or lack thereof). It’s a given that witch hunts in this endeavour are strictly prohibited and any information must be derived from the evidence of record. That means they industriously reviewed her entrance SF 88 exam to find any mention of cancer of any flavor. I’d also have the reader and attorneys look at the extraneous extension of logic that the M 21’s parameters for breast cancer only extend to male recruits. Ahhruu? as Tim Allen might opine. Male breast cancer? Most Veterans’ advocates fail to recognize the M 21 is merely a guide to adjudications as opposed to a regulation or statute. I severely doubt the new statute on the correlation between TCE, say, and breast cancer, states unequivocally that they are only referring to male breast cancer. Boy howdy, I’d pay good money for a ringside seat to see the the expression on Meg Bartley’s or Saint Mary’s face if they had occasion to read that in the ROA.
An additional medical opinion was obtained from a VA physician in March 2011. After reviewing the Veteran’s claims file and Dr. E.M.’s letter, the physician opined that the Veteran’s breast cancer was less likely than not related to contaminated drinking water at Camp Lejeune. The physician explained that the Veteran had been taking estrogen for at least five years before being diagnosed with cancer, and her tumor was strongly positive for estrogen receptors. In addition, the Veteran had other risk factors for breast cancer, including not breast feeding and having a positive family history of colon and pancreatic cancer, which increase the risk of breast cancer.
The physician continued that updated information from December 2010 states that the concern about increased risk for breast cancer due to contaminated water at Camp Lejeune is for males.
The physician noted that there still are no long-term studies proving a connection between exposure to contaminated water at Camp Lejeune and breast cancer, and that the NRC reported there is no sufficient evidence to prove a link.
To her credit, I wish to personally thank Veterans Law Judge Tanya Smith for having the intestinal fortitude to countermand this stupidity afoot at the New Mexico Institute for the Terminally Deluded. Being a newbie, I wonder how long her objectivity will endure before being supplanted with derision for the Veterans’ plight. Hopefully, never.
I encountered this Catch 22 in Nehmer first in 1994 when I approached the AmVets VSO and said innocently “I have porphyria cutanea tarda (pct)and I’ve had it since I was in Laos in 1970. The chloracne resolved about ten years ago.” He countered with “Yes, but has it (pct) been compensable since a year after you left(1973)?” We encounter these aberrations in the Nehmer and Camp Lejeune rules. Seriously. How about the AO one that dealt with subacute peripheral neuropathy. You had to come down with it within a year of leaving the land of the red clay but… it had to resolve within three years or no dinero. In my case, I had to somehow prove a disease I (and most doctors) had no name for (or even heard of outside the walls of the Tennessee Monsanto Factory) was compensable to a degree of 10% or more within one year of departing Vietnam and its environs -or May 1973. Lay testimony would not suffice. I didn’t even know about the applicability of combat presumptions under 1154(b). All I knew was I wasn’t going to be seeing any backsheesh because I failed to go to a doctor and have him annotate it in my records.
The biggest takeaway from this for advocates is the obvious written one. It’s a presumptive which means the requirements for acceptance of the possibility the disease was contracted at Camp Lejeune are substantially reduced. Jane’s treating VA doctor’s IMO emcompassed that presumptive in assuming it was possible which is more probative than the VA examiner’s rebuttal that gave no credence to the presumptive nature nor a rebuttal of substance to the cited articles by her doctor- a specialist in oncology. The argument in presumptive cases is almost always one of the VA rebutting the presumptive nature with evidence that conclusively proves it has a different proven etiology-otherwise, the Vet wins. Here, the VA has promulgated that 14 diseases are presumed to be involved in exposure to solvents. If Jane was there and has one of the diseases, VA must prove beyond the shadow of a doubt that Jane’s Boob boo was caused by not nursing with documented, peer-reviewed studies that are in general circulation and accepted as bedrock medical fact.
Absent that, Jane wins. That’s the way presumptives work. That’s why Congress invented them. VA never has managed to get a mental handle on the concept. (“What do you mean they get a bye on Parkinson’s? That’s bogus!”)
I just had to put this decision up when I spotted the Trix© “Silly Rabbit. Breast cancer is for males.” blurb. It makes me seriously wonder what’s in the water in Albuquerque’s RO.