Citation Nr: 1335165 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-21 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for Hodgkin's lymphoma, to include as a result of exposure to chemical substances in the water at Camp Lejeune. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Larry D. Schuh, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. He also had unverified periods of service with the Pennsylvania Army National Guard, reportedly between May 1989 and May 1992 and May 2001 and May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The claim was remanded by the Board in July 2010 in order for the Veteran to be afforded a Board hearing, which was held in April 2011 before the undersigned Veterans Law Judge. A transcript of this proceeding is of record. In a December 2011 decision, the Board denied service connection for Hodgkin's Lymphoma and remanded the issue of whether new and material evidence has been submitted to reopen the claim of service connection for hearing loss. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand of the BVA Decision on Appeal (Joint Motion) in March 2013. By order dated in March 2013, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. Among other things, the Joint Motion characterized the claim on appeal as entitlement to service connection for Hodgkin's lymphoma, to include as a result of exposure to chemical substances in the water at Camp Lejeune. Accordingly, the Board has characterized the issue as listed on the title page of this remand. 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 The Joint Motion noted that the Board's December 2011 decision failed to consider and address any evidence of current residuals of the Veteran's Hodgkin's lymphoma. The Joint Motion also noted that the Veteran served at Camp Lejeune, North Carolina, and that the United States Marine Corps and the Centers for Disease Control (CDC) have indicted that trichloroethylene (TCE) and tetrachloroethylene (PCE) were among the many toxic substances identified in the well and water distributions systems at Camp Lejeune. Evidence from the CDC showed that both substances have been associated with the development of Hodgkin's disease in some people, depending on how they were exposed and for how long, contrary to an August 2009 VA medical opinion of record. In light of the foregoing, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion. 38 C.F.R. § 3.159(c)(4) (2013). In addition, the law requires that VA assist a claimant by 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 and Supp. 2009); 38 C.F.R. § 3.159. In remanding this claim for a VA examination, the Board observes that it has been established that veterans who served at U.S. Marine Corps Base Camp Lejeune were potentially exposed to contaminants present in the base water supply prior to 1987. See VBA Training Letter 10-03. The chemical compounds involved have been associated by various scientific organizations with the possible development of certain chronic diseases. However, many unanswered questions remain regarding the extent of base water contamination, the type and duration of exposure experienced by base personnel, and the likelihood that contaminant levels in the water supply were high enough to result in a particular disease. While these issues are being studied, VA has determined that disability claims from Veterans who served at Camp Lejeune during this period deserve special handling to ensure fairness and consistency in claims processing. As a result, adjudication of these claims has been centralized at the Louisville, Kentucky, RO with tracking measures initiated. When examinations are requested, it should be kept in mind that these claims represent a unique situation for VA medical examiners. They must determine, on a case-by-case basis, whether a particular claimed condition is linked to contaminated water exposure. In order to assist them with their assessment and determination, the RO must provide them with the Appendices to VBA Training Letter 11-03. This information replaces the Camp Lejeune "Fact Sheet" intended for VA examiners found in Training Letter 10-03. This information is intended to provide the VA examiners with an adequate basis for providing a reasoned opinion. This opinion is a critical element for evaluating the claim. Therefore, if the examiner fails to provide a reasoned opinion and resorts to a statement such as "an opinion cannot be made without resort to mere speculation," the examination should be returned as inadequate. The December 2011 Board decision included a remand of the issue of whether new and material evidence had been received to reopen a claim for service connection for bilateral hearing loss. As the case was subsequently appealed to the Court, it does not appear that the development directed by that remand was accomplished. The Board will remand the claim again. On remand, the RO/AMC was to verify the dates and types of the Veteran's service in the Pennsylvania Army National Guard from the appropriate source(s), and obtain complete copies of the Veteran's service treatment records, to include any clinical records, and service personnel records for any National Guard service. The RO/AMC was also to obtain the Veteran's complete treatment records from the VA Medical Center (VAMC) in Lebanon, Pennsylvania. Any records obtained pursuant to those instructions are potentially relevant to the current claim for service connection for Hodgkin's lymphoma, to include as a result of exposure to chemical substances in the water at Camp Lejeune. Accordingly, the case is REMANDED for the following action: 1. Provide appropriate notice to the Veteran regarding what evidence is needed to reopen a claim of service connection for bilateral hearing loss, to include the basis for the previous denial in the August 2004 decision, as required by Kent v. Nicholson, 20 Vet. App. 1 (2006), 2. Verify the dates and types of the Veteran's service in the Pennsylvania Army National Guard. See May 2005 letter from the Pennsylvania Army National Guard. Complete copies of any service treatment records, to include clinical records, and personnel records, should also be obtained. 3. Obtain complete VA treatment records. 4. Obtain information from the Veteran about his time spent at Camp Lejeune, including his housing location, how much time he spent on and off base, and his work duty location(s). 5. Determine how long the Veteran served at Camp Lejeune and whether he lived on or off base. 6. After completion of the above, schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any current Hodgkin's lymphoma, or residuals of Hodgkin's lymphoma, that may be present. The claims file must be made available to the examiner. Importantly, the examiner must be provided with the claims file, a copy of this remand, information about the circumstances of the Veteran's time at Camp Lejeune and a copy of VBA Fast Letter/Training Letter 11-03 with the 4 appendices, for review in conjunction with the examination. The examiner should be notified of the following: The water supply at Camp Lejeune, North Carolina, was contaminated between 1957 and 1987 with a number of chemical compounds that have been associated by scientific organizations with the potential for developing certain diseases. These include trichloroethylene (TCE), tetrachloroethylene, also known as perchloroethylene (PCE), benzene, and vinyl chloride. The Veteran you are examining has verified service at Camp Lejeune during that period and is claiming service connection for Hodgkin's lymphoma. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), VBA Fast Letter/Training Letter 11-03 with appendices, and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine: (a) whether it is at least as likely as not (50 percent or more likelihood) that the Veteran has Hodgkin's lymphoma or any residuals of Hodgkin's lymphoma; and (b) whether it is at least as likely as not (50 percent or more likelihood) that any current Hodgkin's Lymphoma and/or residuals is related to the Veteran's exposure to contaminated water while serving at Camp Lejeune. The examiner must consider information on how long the Veteran served at Camp Lejeune, and whether the Veteran lived on or off base. The examiner must include a complete rationale for all opinions provided in the report. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 7. Then, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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) (2013).