Citation Nr: 1329119 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 07-27 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for periampullary adenocarcinoma, to include as due to exposure to herbicides or as secondary to a service-connected gunshot wound to the abdomen or contaminated water at Camp Lejeune. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied a petition to reopen a claim of entitlement to service connection for periampullary adenocarcinoma. The Veteran and his wife testified during a March 2010 Travel Board hearing before the undersigned acting Veterans Law Judge, a transcript of which is on file. The Board issued a September 2010 decision reopening, but denying this claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Through a May 2011 Court order, the Joint Motion for Remand filed by the Veteran's attorney and VA's Office of General Counsel (parties) was implemented, vacating the September 2010 decision insofar as it denied the claim on the merits, and remanding the case to the Board. In a decision dated April 13, 2012, the Board denied entitlement to service connection for periampullary adenocarcinoma, to include as due to exposure to herbicides or as secondary to a service-connected gunshot wound to the abdomen. The appellant's attorney filed a motion to vacate that Board decision in July 2012. In February 2013, the Board issued an order vacating the April 2012 decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Additional action is warranted prior to Board review in order to fulfill VA's duty to assist set forth at 38 C.F.R. § 3.159 (2012). In written argument submitted to the Board in June 2013, appellant, through counsel, argues that his current periampullary adenocarcinoma is related to exposure to contaminated drinking water at Camp Lejeune. The Veteran urges that there is sufficient evidence to warrant obtaining a VA medical opinion on this subject. He argues that the evidence he submitted links pancreatic cancer to the contaminates found in Camp Lejeune drinking water to which he was exposed during active duty training. He has submitted medical research in support of his claim as well as government publications, including VA's Camp Lejeune Water Contamination (Historical), published March 2013 and a relevant fact sheet from the Agency for Toxic Substances & Disease Registry (ATSDR). The ATSDR report indicates that occupational exposure to one of the chemicals found in the contaminated water at Camp Lejeune, PCE, has been linked to pancreatic cancer. The Veteran's service treatment records establish that he was at Camp Lejeune during August 1967. He was diagnosed with periampullary adenocarcinoma of the pancreas in 2002 and underwent Whipple procedure, radiation therapy and chemotherapy. In recent years, the United States Navy and VA have acknowledged that persons residing or working at the Camp Lejeune from 1957 to 1987 were potentially exposed to contaminants present in the base water supply. The contaminants were the solvents perchloroethylene, tetrachloroethylene, and trichloroethylene, and are believed to have entered the base water supply after emerging from an off-base dry cleaning firm and leaking underground storage tanks. The United States Environmental Protection Agency has characterized trichloroethylene as carcinogenic to humans. VA Health Care Fact Sheet 16-9, published in November 2008, indicated that it was not clear that persons at the base were exposed to the chemicals at levels that would cause health problems. In a January 2012 Fact Sheet, it was noted that there are many unanswered questions as to the extent of the contamination of the water, the level of exposure of persons on the base, and the likelihood that exposure was great enough to result in particular diseases. VA has encouraged Veterans to file claims for any VA disability compensation for any injury or illness the Veteran believes is related to their service, including service at Camp Lejeune. VA is handling disability claims based on exposure to contaminated water at Camp Lejeune on a case-by-case basis. In December 2011, the Board obtained a an expert VA medical opinion on the etiology of the Veteran's periampullary adenocarcinoma and specifically whether it is related to a gunshot wound to the abdomen or herbicide exposure in service. To date the Veteran has not been afforded a VA medical examination in regard to the theory that his cancer is due to exposure to contaminated water at Camp Lejeune. The December 2011 opinion did not have the benefit of considering and addressing the argument with regard to contaminated drinking water at Camp Lejeune. In view of the new evidence, the Board finds it necessary to afford the Veteran a VA medical examination regarding the nature, extent, and etiology of the periampullary adenocarcinoma inasmuch as it is alleged to be related to contaminated drinking water at Camp Lejeune. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Board notes that VA Fast Letter 11-03, revised January 28, 2013, sets forth guidance for a VA agency of original jurisdiction as to the processing of claim in which it is alleged that disability is due to contaminated drinking water at Camp Lejeune. Accordingly, the case is REMANDED for the following action: 1. The RO should follow all current development procedures for the development of the claim in light of the contention that the Veteran's periampullary adenocarcinoma is due to contaminated drinking water at Camp Lejeune, to include but not limited to VA Fast Letter 11-03, revised January 28, 2013. 2. The RO should then schedule the Veteran for an appropriate VA examination by a VA physician. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) and the report prepared in item 1, must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to accomplish all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that periampullary adenocarcinoma is a result of exposure to contaminated drinking water and/or chemicals at Camp Lejeune. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any of the benefits remain denied issue a supplemental statement of the case and provide the Veteran and his attorney-representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate 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. 2012). _________________________________________________ J. K. BARONE 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).