Citation Nr: 1323309 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 07-09 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for pain and weakness in the lower extremities, to include as due to exposure to chemicals and contaminated water at Camp Lejeune. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to August 1972 and from April 1973 to July 1978. This case comes before the Board of Veteran's Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction was subsequently transferred to the RO in Winston-Salem, North Carolina. In November 2010 and January 2013, the Board remanded the claim for service connection for pain and weakness in the lower extremities for additional development. For the reasons discussed below, another remand is necessary. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. The issue of entitlement to service connection for pain and weakness in the upper extremities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that the pain and weakness he currently experiences in his lower extremities initially manifested during his period of active service. The pain and weakness reportedly began following a negative reaction he had to a swine flu vaccination in 1976. Also of interest is his reported in-service exposure to cleaning chemicals and contaminated water while stationed at Camp Lejeune. Training Letter 11-03, issued by the Director of VA Compensation and Pension Service, indicates that persons residing or working at the U.S. Marine Corps Base at Camp Lejeune from the mid-1950s to 1987 were potentially exposed to drinking water contaminated with volatile organic compounds, including benzene, Vinyl Chloride, tricholoroethylene (TCE) or tetrachloroethylene (perchloroethylene, or PCE). Training Letter 11-03 also provies that service connection caused by contaminated water at Camp Lejeune requires evidence of a current disease, evidence of service at Camp Lejeune during the period of contamination, and a medical nexus between the two, justified with a rational scientific explanation. The Veteran's personnel records confirm that he served between May 1968 and August 1972, and was stationed at Camp Lejeune. Therefore, he falls within the range of subjects who have been identified as potentially being exposed to VOCs during such service. VBA Fast Letter No. 11-03 provides instructions for claims involving exposure to contaminated water during service at Camp Lejeune. Appeals involving claims for service connection for specific disabilities asserted to be secondary to water contaminates at Camp Lejeune are to be remanded to the Louisville, Kentucky RO. Thus, in accordance with these directives, and as the evidence of record is insufficient to decide the claim, the Board is remanding the current appeal to the Louisville, RO for further development. The Veteran's service treatment records do not demonstrate that he sought treatment for or complained of pain and weakness of the lower extremities. However, post-service clinical records show that the Veteran sought treatment for those complaints in December 1978, approximately 5 months after his separation from service. At that time, he reported that his symptoms had been present for approximately one year, and that he had left military service because he felt that his pain and weakness prohibited him from doing his in-service job effectively. Treatment records since 1978 show that the Veteran continued to receive regular treatment for complaints of pain and weakness in his lower extremities. Throughout this time, no clear etiology for his complaints has been identified, although multiple sclerosis has been ruled out. In November 2010 the Board found that while the severity of the Veteran's symptoms had fluctuated over the years, the Veteran's assertions that his symptoms had been present continuously since their initial in-service manifestation was both competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In addition, the Veteran's testimony regarding his negative reaction to the swine flu vaccination, exposure to cleaning chemicals, and contaminated water in service is competent and credible. Id. It was determined that an examination was necessary to consider whether in-service symptoms were related to any current disorder. VA examination was conducted in December 2010. After review of the claims file, a discussion of the Veteran's symptoms, and physical examination, the examiner noted an impression of lower extremity pain and weakness of unknown etiology. In January 2013 the examination was considered inadequate because the examiner failed to address the previous diagnosis of peripheral neuropathy found in the October 2005 private treatment report, and further, the examination report did not indicate that a complete neurological examination was performed to confirm or rule out this diagnosis. Following the most recent remand, the Veteran was provided a February 2013 VA examination wherein diagnosis was of peripheral neuropathy of the legs. The Veteran reported that he first noted weakness and pain in his legs in approximately 1977 while stationed in Washington, D.C., and walking up a hill to work, with problems in his legs ever since. The Veteran indicated that he experienced progressively worse pain since service, and weakness. He reported that he used a cane for balance when walking in the yard. Examination was normal except for muscle testing which showed active movement against some resistance of knee flexion and extension bilaterally. In addition, there was mild paresis of lower extremities to resistance testing and this caused clonus bilaterally. The Veteran reported occasional use of a cane. The examiner indicated that the Veteran was treated with Gabapentin for pain. He indicated that the Veteran had peripheral neuropathy manifested principally by pain in the lower extremities, with some weakness. The examiner, however, concluded that it was less likely related to service due to lack of documentation of complaints of this nature in service treatment records. This opinion is inadequate given the faulty rationale which relied only on an absence of medical records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A central issue in determining the adequacy and persuasiveness of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Because the December 2010 and February 2013 examinations have been inadequate, another remand for VA examination is necessary. In addition, the Board observes that in March 2007 the Veteran indicated that he desired a Board hearing at the RO. In April 2007 there was an email exchange regarding file transfer from Roanoke to North Carolina, and determining that the file should be returned to Roanoke for certification and scheduling of the Travel Board hearing. A September 2007 notice was sent to the Veteran scheduling his October 2007 hearing at the Winston-Salem RO. Thereafter, the cover sheet has indicated that the hearing was cancelled by the Veteran; however, such written cancellation is not located in the claims folder. As such, while on remand the Board seeks clarification as to whether the Veteran continues to desire a Travel Board hearing, and if so, the Veteran should be scheduled for one. Accordingly, the case is REMANDED for the following action: 1. In accordance with VBA Fast Letter No. 11-03, dated January 11, 2011, the appeal must be remanded to the Louisville, Kentucky RO for further development. 2. Schedule the Veteran for an examination to ascertain the current nature of his complaints of pain and weakness in the lower extremities. The entire claims file, to include a complete copy of this REMAND, and copy of the FACT SHEET pertaining to Camp Lejeune, from VBA Training Letter should be provided to the VA clinician. Any details including, the date, location, and length of time on Camp Lejeune, medical, occupational and environmental exposure history, and any other pertinent facts, should be made available. The examination report should also include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies-to specifically include a complete neurological examination of the lower extremities should be accomplished and all clinical findings should be reported in detail. The examiner should specifically indicate whether a diagnosis of peripheral neuropathy of the lower extremities or any other diagnosis is appropriate. Then, with respect to each diagnosed disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset in or is otherwise etiologically related to service, including the 1976 swine flu vaccination, exposure to cleaning chemicals, and contaminated water at Camp Lejeune, or as to whether an alternative etiology is more likely. In providing the requested opinion, the examiner is asked to consider and address the pertinent post-service findings of lower extremity pain and weakness shortly after discharge, as well as the Veteran's statements regarding the onset of pain and weakness in the lower extremities in service and chronic lower extremity symptoms since service. A complete rationale should be provided for any opinions expressed. If an opinion cannot be provided without resort to speculation, it must be noted in the report, and a rationale provided for that conclusion. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. Then, clarify whether the Veteran desires a Travel Board hearing. If so, schedule the Veteran for a Travel Board hearing at the appropriate RO. The Veteran should be notified of the date, time and place of such a hearing by letter mailed to his current address of record. The Veteran 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. 2012). _________________________________________________ K. MILLIKAN Acting 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) (2012).