Citation Nr: 1326716 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-38 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1970. He died in October 2008. The Appellant is his widow. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The case was then transferred to the RO in Louisville, Kentucky. The Board Remanded the appeal in April 2012. The appeal is REMANDED to the Louisville, Kentucky, RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The appellant contends that esophageal cancer and lung cancer caused the Veteran's death. She contends that the Veteran's cancer was due to the Veteran's exposure to contaminants in the drinking water at Camp Lejeune during his active service. Prior to service in Vietnam, the Veteran was stationed at Camp Lejeune, North Carolina, from January 1967 to September 1967. The Veteran's location in October 1967 is not clear. In November 1967, the Veteran deployed to Vietnam. In August 1969, the Veteran apparently returned to Camp Lejeune briefly, then was granted two weeks of leave. The Veteran returned to Camp Lejeune for a brief period in late August 1969 through September 1969. The Veteran was transferred to another station for sea service in October 1969. He remained at sea until early in April 1970. The Veteran returned to Camp Lejeune in early April 1970, and was released from active duty at that location at the end of April 1970. After his service discharge, the worked for Ford Motor Company, apparently as a hydraulic repairmen, for many years. The Veteran sustained injury to his chest in an October 2007 fall, the Veteran sought evaluation for chest discomfort. In early January 2008, a radiologic examination of the upper gastrointestinal tract disclosed a mass at the esophagogastric junction with narrowing of the esophagus. Computerized tomography (CT) examination of the abdomen showed a distal esophageal lesion, and hepatic and splenic lesions consistent with metastasis. Pathologic examination disclosed signet ring adenocarcinoma of the distal esophagus and extension into the gastric cardia. The Veteran developed pleural effusion. In September 2008, pathology examination of fluid removed from the left pleural effusion disclosed changes diagnostic of adenocarcinoma with signet ring features. The Veteran died in October 2008. The Veteran's death certificate states that esophageal cancer with liver metastasis caused his death. In December 2010, VA obtained a medical opinion as to the likelihood that water contamination at Camp Lejeune caused or contributed to the Veteran's death due to esophageal cancer. The reviewer noted that the Veteran's lung cancer was shown on pathology to be a metastatic adenocarcinoma, with signet ring features. The reviewer noted that signet ring features are indicative of cells which arise in the GI tract, and reiterated that the tumor on the Veteran's left lung as a metastatic tumor was not a primary tumor. The reviewer concluded that there was no medical literature which supported a finding that the contamination of the drinking water at Camp Lejeune could have caused esophageal cancer. In October 2011, an updated opinion was obtained. The reviewer who conducted the October 2011 review correctly noted that the Veteran was stationed at Camp Lejeune from January 1967 to September 1967. The reviewer who conducted the October 2011 review noted that the Veteran would have used cleaning solvents in his employment. The reviewer also noted that no information was available as to whether the Veteran was stationed on the base or off base. The reviewer concluded that there was no medical literature which supported a finding that the contamination of the drinking water at Camp Lejeune could have caused esophageal cancer. Unfortunately, the reviewer did not discuss the April 2011 Training Letter addressing the most recent summary of the medical literature. After the RO obtained the April 2011 and October 2011 VA opinions in this case, VA issued Training Letter 11-03 (Revised) in November 2011. The November 2011 revisions reflect that studies have concluded that there are 14 disease conditions for which there is limited/suggestive evidence of an association with the types of contaminants found in the Camp Lejeune drinking water. Esophageal cancer and lung cancer are two of these 14 diseases. Therefore, the reviewers' statements that there is no medical literature or evidence that the claimed cancers may be associated with the contaminants in the Camp Lejeune water are not accurate. An updated opinion must be obtained. Training Letter (TL) 11-03 stipulates that appeals involving claims for service connection for specific disabilities asserted to be secondary to water contaminants at Camp Lejeune are to be remanded to the Louisville, Kentucky RO. TL 11-03 specifies that an examiner who provides an opinion under TL 11-03 must be provided with a copy of TL 11-03. Thus, the Board remands the current appeal to the Louisville, RO for further development, and notes that a copy of TL 11-03, referenced in this Remand, must be provided to the reviewer. The outcome of the Appellant's claim for burial benefits depends on the outcome of the claim for service connection for the cause of the Veteran's death. Therefore, adjudication of that issue should be deferred until the claim for service connection for the cause of the Veteran's death has been developed and adjudicated. Accordingly, the case is REMANDED for the following action: 1. In accordance with Training Letter 11-03 (Revised), November 2011, and any subsequent directives, including August 2012 legislation regarding health benefits for individuals exposed to contaminated drinking water at Camp Lejeune, the Veteran's appeal must be remanded to the Louisville, Kentucky RO for further development. 2. The appellant should be afforded an opportunity to provide any available information about the dates the Veteran was stationed at Camp Lejeune, any available information about whether he lived on base, or other information which would reflect his exposure to contaminated drinking water. The appellant should also be afforded an opportunity to submit any additional clinical or non-clinical information she believes would assist her to substantiate her claim. 3. Thereafter, the appropriate facts sheets from Training Letter 11-03 (November 29, 2011) or any subsequent updated directive in effect during this remand should be provided to the reviewer who is requested to provide an opinion with regard to appeal based on allegations of exposure to contaminated drinking water at Camp Lejeune. TL 11-03 and Appendices A through D referenced in this Remand must be provided to the reviewer, together with any subsequent directives containing relevant updated information. The reviewer should note that the references to the known dates of contamination in the Camp Lejeune water referenced in TL 11-03 have not been updated since the additional information about contamination beginning in August 1953 was issued. After reviewing the evidence of record, including that obtained on Remand, and reviewing TL 11-03 and any necessary subsequent directives, the reviewer should address the following: a. What primary cancer(s) did the Veteran have? Did the Veteran have a primary cancer of the respiratory tract? Did the Veteran have metastasis of a primary carcinoma from another site into the respiratory tract? If so, identify the primary cancer site. b. Identify the principal cause of the Veteran's death and the contributory cause(s) of the Veteran's death. c. Then, address this question: Is it at least as likely as not (a 50 percent, or greater, likelihood), less than 50 percent likely, or unlikely, that the Veteran's esophageal cancer diagnosed in January 2008, or any other cancer identified after that date, was incurred in or as a result of the Veteran's service, to include his exposure to contaminated drinking water at Camp Lejeune in 1967, 1969, and April 1970? The discussion of the basis for the opinion must include discussion of the studies and medical knowledge reflected TL 11-03, Appendix B, Diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1957 and 1987. The reviewer should provide the rationale for each opinion expressed. If the reviewer is unable to present any opinion(s) without resorting to speculation, it must be so noted and the reviewer should explain why speculation is required. 4. Thereafter, the appeals should be readjudicated, to include the claim for burial benefits. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, if the benefits sought are not granted, the appeal should be returned to the Board, when in order. 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. 2012). _________________________________________________ F. JUDGE FLOWERS 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).