Citation Nr: 1029230 Decision Date: 08/04/10 Archive Date: 08/16/10 DOCKET NO. 09-32 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for kidney condition, claimed as renal failure. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for heart condition. 3. Entitlement to service connection for right jaw line squamous cell carcinoma, to include as due to exposure to herbicides and/or contaminated drinking water. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1970. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for kidney condition and entitlement to service connection for heart condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an August 2002 rating decision, the RO denied service connection for a kidney disorder and a heart condition. That decision was not appealed. 2. The evidence added to the claims file since that August 2002 decision raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2002 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). 2. New and material evidence has been submitted and so the claim of service connection for a kidney condition is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. New and material evidence has been submitted and so the claim of service connection for a heart condition is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As the Board is reopening the claim for service connection for a right knee condition, there is no need to discuss compliance with VA duties to notify and assist the claimant, found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); and Kent v. Nicholson, 20 Vet. App. 1 (2006), concerning the attempt to reopen this claim. The Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. New and Material Evidence In an August 2002 rating decision, the RO denied service connection for crescentic glomerular nephritis, claimed as renal failure, and heart condition left ventricle dysfunction. The Veteran did not file a timely appeal and that decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. At the time of the August 2002 rating decision, the evidence of record consisted of the Veteran's service treatment records, private hospital reports from Rome Memorial Hospital in January 2002, private treatment records for Faxton-St. Luke's Healthcare from January 2002 to February 2002, and VA medical records from March 2002 to August 2002. This rating decision denied service connection for both condition because these condition were not among the list of presumptive disabilities associated with herbicide exposure and the available scientific and medical evidence did not support the conclusion that these conditions were associated with the Veteran's conceded herbicide exposure. Thus, there was no evidence of a link between the Veteran's current conditions and his military service. The new evidence submitted must therefore relate to that unestablished fact. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence is newly submitted evidence that relates to an unestablished fact necessary to substantiate the claim and presents the reasonable possibility of substantiating the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. Evidence received since August 2002 consists of a November 2008 letter from the Department of the Navy regarding the Camp Lejeune water registry, a screenshot from the Veterans Benefits Reference System (VBRS) regarding water contamination at Camp Lejeune, the February 2009 VA Compensation and Pension Bulletin, VA treatment records from October 2007 to July 2009, Social Security Administration (SSA) records, and information from the Agency for Toxic Substance & Disease Registry website, dated August 2008. As these records post-date the last rating decision, they satisfy the new requirement. With regard to the material requirement, several of these records refer to water contamination at Camp Lejeune, North Carolina, the medical effects of which are still being determined. The time period for this contamination is stated as from 1952 to 1987. Service personnel records indicate that the Veteran was stationed at Camp Lejeune from June 1968 to October 1968. Thus, the record indicates that the Veteran was at Camp Lejeune while the contaminated well fields were supplying drinking water to multiple housing areas. The record indicates that the Veteran was made aware of this in 2008, six years after the original claim was denied. Hence, this potential in-service injury was not addressed in or contemplated by the earlier decision. Consequently, because there is evidence which suggests an additional in-service occurrence, to wit exposure to contaminated drinking water, and alludes to a myriad of possible health conditions that could arise from this exposure, the new evidence raises a reasonable possibility of substantiating the claims. See 38 C.F.R. § 3.156. Therefore, the Board finds that the Veteran's attempt to reopen his claims of entitlement to service connection for a kidney condition and a heart condition are successful. ORDER New and material evidence having been submitted, the claim for service connection for a kidney condition is reopened. New and material evidence having been submitted, the claim for service connection for a heart condition is reopened. REMAND In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) discussed the steps to be taken in determining whether a VA examination is necessary prior to final adjudication of a claim. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service- connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The Court in McLendon observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The evidence of record shows currently diagnosed kidney, heart, and skin conditions. Likewise, the evidence suggests that exposure to contaminated drinking water could have detrimental health effects. The specific effects on this veteran have not been fully investigated. Therefore, medical opinions are required in order to determine the likelihood that the Veteran's current kidney, heart, and/or skin conditions are etiologically linked to his in-service exposure to contaminated drinking water. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The claims file must be sent to a VA examiner with the appropriate expertise order to determine the nature and etiology of the Veteran's kidney condition. The claims folder should be furnished to the examiner for use in the study of this case. The examiner is directed to review the Veterans Benefits Reference System (VBRS), the February 2009 VA Compensation and Pension Bulletin, and information from the Agency for Toxic Substance & Disease Registry, as well as any other VA materials on this subject, for a listing of the contaminants found in the water at Camp Lejeune. Following a review of the relevant medical evidence in the claims file, the examiner must address the following questions: a. Does the Veteran have a current kidney disorder, to include crescentic glomerulonephritis or renal disease? b. Is it at least as likely as not (50 percent or greater degree of probability) that any diagnosed kidney disorder is attributable to the Veteran's military service, specifically his exposure to contaminated water while stationed at Camp Lejeune, North Carolina? Use of the "at least as likely as not" language in responding is required. The term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A rationale must be provided for any opinion expressed. If the clinician finds it impossible to provide any requested opinion without resort to pure speculation, he or she should so indicate. 2. The claims file must be sent to a VA examiner with the appropriate expertise order to determine the nature and etiology of the Veteran's heart condition. The claims folder should be furnished to the examiner for use in the study of this case. The examiner is directed to review the Veterans Benefits Reference System (VBRS), the February 2009 VA Compensation and Pension Bulletin, and information from the Agency for Toxic Substance & Disease Registry, as well as any other VA materials on this subject, for a listing of the contaminants found in the water at Camp Lejeune. Following a review of the relevant medical evidence in the claims file, the examiner must address the following questions: a. Does the Veteran have a current heart disorder, to include coronary artery disease? b. Is it at least as likely as not (50 percent or greater degree of probability) that any diagnosed heart disorder is attributable to the Veteran's military service, specifically his exposure to contaminated water while stationed at Camp Lejeune, North Carolina? Again, use of the "at least as likely as not" language, defined above, is required and a rationale must be provided for any opinion expressed. If the clinician finds it impossible to provide any requested opinion without resort to pure speculation, he or she should so indicate. 3. The claims file must be sent to a VA examiner with the appropriate expertise order to determine the nature and etiology of the Veteran's skin condition. The claims folder should be furnished to the examiner for use in the study of this case. The examiner is directed to review the Veterans Benefits Reference System (VBRS), the February 2009 VA Compensation and Pension Bulletin, and information from the Agency for Toxic Substance & Disease Registry, as well as any other VA materials on this subject, for a listing of the contaminants found in the water at Camp Lejeune. Following a review of the relevant medical evidence in the claims file, the examiner must address the following questions: a. Does the Veteran have a current skin disorder, to include squamous cell carcinoma? b. Is it at least as likely as not (50 percent or greater degree of probability) that any diagnosed skin disorder is attributable to the Veteran's military service, including his exposure to contaminated water while stationed at Camp Lejeune, North Carolina, and his exposure to herbicides? Again, use of the "at least as likely as not" language, defined above, is required and a rationale must be provided for any opinion expressed. If the clinician finds it impossible to provide any requested opinion without resort to pure speculation, he or she should so indicate. 4. Thereafter, the AMC/RO must readjudicate the claims of service connection for a kidney condition, a heart condition, and a skin condition on the basis of all pertinent evidence of record and all governing law and regulations. If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a supplemental statement of the case (SSOC), which should contain notice of all relevant actions taken on the claims for benefits, and set forth all pertinent evidence and governing law and regulations. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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. 2009). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs