Citation Nr: 1033463 Decision Date: 09/07/10 Archive Date: 09/15/10 DOCKET NO. 08-15 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the neck and arthritis of the upper and lower spine. 2. Entitlement to service connection for a sleep disorder. 3. Entitlement to service connection for colon cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Counsel INTRODUCTION The Veteran served on active duty from November 1954 to November 1958 and from September 1959 to March 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. A hearing was held on June 28, 2010, in Huntington, West Virginia, before Kathleen K. Gallagher, a Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board observes that the Veteran and his representative had previously indicated at a March 2010 hearing before a decision review officer that they wanted to withdraw the issue of entitlement to service connection for colon cancer. However, they once again raised the issue during the June 2010 hearing before the Board and were allowed to provide testimony regarding colon cancer. As such, the Board essentially waived any objections it might have and implicitly accepted the Veteran's appeal. Based on the foregoing, the Board may fairly construe the Veteran's appeal as encompassing the issue of entitlement to service connection for colon cancer. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009); see also Marsh v. West, 11 Vet. App. 468, 470-72 (1998) (Board has an obligation to assess its own jurisdiction on appealed claims); see, e.g., Rowell v. Principi, 4 Vet. App. 9, 17 (1993) (failure by appellant to file a substantive appeal with respect to this claim does not automatically foreclose his appeal, render the claim final, or otherwise deprive the Board of jurisdiction); see, e.g., Beryle v. Brown, 9 Vet. App. 24, 28 (1996) (holding that where Board proceeded to review claims on appeal where no Substantive Appeal was filed, Board implicitly waived the filing requirement of the Substantive Appeal as to those claims). Accordingly, the Board finds that the issue of entitlement to service connection for colon cancer is on appeal. The Board also notes that the Veteran's appeal had originally included the issue of entitlement to service connection for tinnitus; however, during the pendency of the appeal, the RO granted that benefit in a June 2010 rating decision. Accordingly, the issue of entitlement to service connection for tinnitus no longer remains in appellate status, and no further consideration is required. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reasons for Remand: To obtain additional treatment records, to afford the Veteran a VA examination, and to develop a claim of service connection based on exposure to contaminated water and herbicides. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Veteran has contended that he was treated for his back as a civilian at MacDill Air Force Base between 1978 and 1979. His wife also submitted a lay statement in January 2007 in which she recalled that he had received treatment at MacDill Air Force Base from 1978 to 1979 during which time an x-ray revealed severe degenerative arthritis. She further noted that the Veteran was prescribed pain medication there and was seen for an eye examination. Several attempts have been made to obtain these records, but those attempts have been unsuccessful. However, it is unclear from the requests and responses as to whether the search was limited to military records. As pointed out by the Veteran's representative at the June 2010 hearing, civilian medical records may be maintained separate from military records. Therefore, the RO should attempt to obtain and associate with the claims file the Veteran's civilian medical records from MacDill Air Force Base. The Board also notes that the Veteran has not been afforded a VA examination in connection with his claim for service connection for a sleep disorder. Recent private medical records reflect an evaluation for a sleep disorder, and the Veteran has contended that such a disorder is secondary to his service-connected posttraumatic stress disorder (PTSD) and tinnitus. However, the evidence of record does not include a medical opinion addressing whether he currently has a sleep disorder that was caused or aggravated by his service-connected disabilities. Therefore, the Board finds that a VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of any sleep disorder that may be present. In addition, the Veteran has alleged that he developed colon cancer as a result of his exposure to contaminated water at Camp Lejeune in North Carolina, and in the alternative, due to herbicide exposure in Vietnam. The Board notes that the Director of Compensation and Pension Service issued Training Letter 10-03 in April 2010 in which it was acknowledged that persons residing or working at the U.S. Marine Corps Base at Camp Lejeune from the 1950s to the mid-1980s were potentially exposed to drinking water contaminated with volatile organic compounds. Two of the eight water treatment facilities supplying water to the base were contaminated with either tricholoroethylene (TCE) or tetrachloroethylene (perchloroethylene, or PCE) from an off-base dry cleaning facility. The Department of Health and Human Services' Agency for Toxic Substances and Disease Registry (ATSDR) estimated that TCE and PCE drinking water levels exceeded current standards from 1957 to 1987 and represented a public health hazard. In addition to TCE and PCE, ATSDR has also indicated that high concentrations of benzene, Vinyl Chloride, and trans-1, 2-dichloroethylene (1, 2-DCE) were detected in the drinking water system. The Director also noted in Training Letter 10-03 that the National Research Council of the National Academies of Science released a report in June 2009, which found that scientific evidence for any health problems from past water contamination is limited. The evidence for the amounts, types, and locations of contamination were not well recorded at the time and cannot now be extrapolated. Therefore, conclusive proof of harmful health effects is unlikely to be resolved with any further studies. As such, the Director indicated that disability claims based on exposure to contaminated water at Camp Lejeune must be handled on a case-by-case basis. It was noted that actual service at the installation during the timeframe of water contamination must be established. In this case, the Veteran's service treatment records do document multiple examinations performed at Camp Lejeune. However, it does not appear that the claim for service connection has been developed to determine whether the Veteran currently has colon cancer due to possible exposure to contaminated water. Therefore, the RO should determine whether the Veteran served at Camp Lejeune and whether he may have been exposed to the contaminated water and developed colon cancer as a result. The Board also finds that additional evidence is needed to address the Veteran's contention that he has colon cancer related to Agent Orange exposure. Although colon cancer is not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Therefore, the RO should address whether the Veteran was exposed to herbicides, and if so, should afford him a VA examination to determine whether he has colon cancer related to such exposure. In order to give the appellant every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should request the Veteran's complete service personnel records from the National Personnel Records Center (NPRC). If the records are unavailable from NPRC, the RO should contact the service department and the Veteran for any copies he has in his possession. In so doing, the RO should verify whether the Veteran may have had any exposure to contaminated water at Camp Lejeune or to herbicides. 2. The RO should contact MacDill Air Force Base, or any other appropriate location, to make a specific request for the Veteran's civilian medical records dated from 1978 to 1979 and through any other appropriate records repository to which pertinent records may have been sent. Specifically, it should be ascertained whether civilian medical records may be stored somewhere other than the medical records for military personnel. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any sleep disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should identify all current sleep disorders. For each disorder identified, the examiner should opine as to whether it is at least as likely as not that the disorder was caused by or permanently aggravated by the Veteran's service-connected PTSD and tinnitus or is otherwise related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. If it is determined that the Veteran was exposed to contaminated water at Camp Lejeune and/or herbicides, he should be afforded a VA examination to determine the nature and etiology of any colon cancer that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should state whether it is at least as likely as not that the Veteran has colon cancer that is due to his in-service exposure to the contaminated water at Camp Lejeune or to herbicides or is otherwise causally or etiologically related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).