Citation Nr: 1434165	
Decision Date: 07/31/14    Archive Date: 08/04/14

DOCKET NO.  10-36 717	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky

THE ISSUES

1.  Entitlement to service connection for congestive heart failure, including due to exposure to contaminated water at Camp Lejeune.  

2.  Entitlement to service connection for lung disease, including due to exposure to contaminated water at Camp Lejeune.  

3.  Entitlement to service connection for infertility, including due to exposure to contaminated water at Camp Lejeune.  

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from March 1977 to June 1978.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In support of his claims, the Veteran testified at a videoconference hearing in February 2014 before the undersigned Veterans Law Judge of the Board.  A transcript of the hearing has been associated with the claims file, so is of record.  During the hearing the Veteran withdrew his claim of entitlement to service connection for gastroesophageal reflux disease (GERD), so that claim is no longer part of this appeal.  38 C.F.R. § 20.204 (2013).

Because this appeal was partly processed electronically using the Virtual VA paperless claims processing system, any future consideration of this case should take into consideration the existence of this electronic record.  

The claims of entitlement to service connection for congestive heart failure and infertility are being REMANDED to the Agency of Original Jurisdiction (AOJ), rather than immediately decided, whereas the Board instead is going ahead and deciding the remaining claim for lung disease.



FINDING OF FACT

The probative, meaning competent and credible, evidence of record indicates the Veteran's lung disease, diagnosed as chronic obstructive pulmonary disease (COPD) and severe bronchospastic obstructive lung disease, is as likely as not related to his military service.


CONCLUSION OF LAW

Especially when resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for lung disease, namely, COPD and severe bronchospastic obstructive lung disease.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

Since the Board is fully granting this claim, there is no need to discuss whether there has been compliance with the duty-to-notify-and-assist provisions of the VCAA.  This is because, even on the chance there has not been, this would be inconsequential and, therefore, ultimately amount to nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).


Analysis

After considering the relevant evidence, and resolving all reasonable doubt in the Veteran's favor, the Board has determined, based upon the most probative evidence of record, that the Veteran has a current diagnosis of COPD and severe bronchospastic obstructive lung disease that is related to his active military service, specifically, to the exposure to contaminated water while stationed at Camp Lejeune, North Carolina.  Therefore, service connection for this claimed disability is warranted.  

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection requires competent and credible evidence showing:  (1) the present existence of the claimed disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).

Throughout the duration of this appeal, the Veteran has maintained that his current lung disorder is due to his exposure to contaminated water at Camp Lejeune during his active service.  The Board finds his assertions are not competent, however, as he does not have the medical expertise needed to relate his lung disorder to his military service and particularly to that contamination.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Therefore, his lay assertions concerning this posited correlation do not ultimately have any probative weight.  See Baldwin v. West, 13 Vet. App. 1 (1999).  Moreover, although he has not provided any statements alleging continuity of symptomatology since his service, to otherwise establish this required linkage, the type of lung disorders he is shown to have are not considered chronic diseases according to 38 C.F.R. § 3.309(a).  See 38 C.F.R. §§ 3.303(b) and Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

His service treatment records (STRs) show he was stationed at U.S. Marine Corps Base Camp Lejeune, North Carolina, during his time in service, and therefore he may have been potentially exposed to contaminants present in the base's water supply prior to 1987.  See VBA Training Letter 11-03, dated April 27, 2011.

The medical evidence of record, including private and VA medical records from November 1997, July 2000 and from August 2004 to March 2012, a December 2010 VA examination, an April 2011 VA medical opinion and VA physician letters from July 2009, April 2010, October 2011 and October 2012, reflect that he has been treated for and diagnosed with pulmonary emphysema, COPD and severe bronchospastic obstructive lung disease.  

The December 2010 VA examination reflects the Veteran was diagnosed with severe COPD, but the examiner indicated he was unable to determine the etiology of the Veteran's disabilities without resorting to mere speculation, due to the fact that the scientific research was inconclusive regarding the effects of his exposure on the onset of his diagnoses.  This VA examiner nonetheless subsequently provided an addendum opinion in April 2011, indicating the Veteran's diagnoses of congestive heart failure, severe COPD, GERD with hiatal hernia and hypogonadism were less likely than not related to a specific cause and effect research findings.  The examiner explained that research could not determine specifically which, if any, of the substances - trichloroethylene (TCE), perchloroethylene (PCE) or solvent mixture - were in the water supply and that the National Research Council had inadequate, insufficient evidence to determine whether there was an association that exist.  He also noted that, of the diagnoses made, none of them are associated with the National Research Council's possible outcomes.  By finding the Veteran's diagnosed conditions were less likely than not related to the research findings the examiner did not specifically opine on whether it nevertheless was as likely as not that any of these diagnosed conditions were related to the Veteran's service.  

In a July 2009 letter, the Veteran's primary care physician at VA, Dr. D.P., M.D., stated that the Veteran reported he had been exposed to water contamination while serving in Camp Lejeune, North Carolina, including industrial solvents TCE and PCE.  He discussed the Veteran's infertility, congestive heart failure, GERD and hiatal hernia and noted that he had reviewed literature on industrial solvent-related medical conditions in which male infertility, cardiovascular and gastrointestinal effects were listed under the heading "inadequate or insufficient evidence to determine whether an association exists."  In an April 2010 letter, Dr. D.P. again reported that, as there was no sufficient evidence to prove or disprove the connection of his patient's health problems with water contamination at Camp Lejeune, he could not rule out the possibility that the Veteran's exposure to the contaminated water was a contributing factor to his progressing medical issues.  

In a September 2010 statement, the Veteran reported that he was assigned to Camp Lejeune, North Carolina, until 1978 during his active service.  He also stated that he had received some research papers on the contaminated water at Camp Lejeune, which he shared with both his VA primary care physician and VA pulmonary physician.  The Veteran reported that both physicians believed that the contaminated water had contributed to his health issues.  The letter was signed by the Veteran and both his VA primary care physician, Dr. D.P., as well as his VA pulmonary physician, Dr. B.W.J., M.D.  

In an October 2011 letter, Dr. D.P. informed VA that the Veteran carried a diagnosis of COPD and, as a result of this terminal condition, his health was getting progressively worse.  

Finally, in an October 2012 letter, the Veteran's pulmonary physician, Dr. B.W.J., indicated the Veteran's pulmonary function test (PFT) findings were considered 
end-stage chronic obstructive lung disease at an early age with a significantly shortened life expectancy.  She also noted that the Veteran had a history of tobacco use, but had stopped smoking in 2009, as well as a history of crack use, which had stopped prior to 2005.  She found that his pulmonary function studies performed in 2000 at the age of 40 showed moderate, severe, obstructive ventilatory defect with some improvement after bronchodilation, which was a significant loss of lung function to see in a person of that young age.  She then noted that he had a very hyper-responsive airway disease more suggestive of asthma rather than pure emphysema due to tobacco use.  

Dr. B.W.J. also noted the Veteran's history of being stationed at Camp Lejeune and his exposure to several chemicals through contaminated water at that time, including TCE, PCE, benzene, toluene and vinyl chloride.  She also noted findings from a report entitled "Contaminated Water Supplies at Camp Lejeune:  Assess the Potential Health Effects (2009) Board on Environmental Studies and Toxicology," noting that trichloroethylene was reported to have produced several forms of immunotoxicity, including exacerbation of a respiratory hypersensitivity (allergic asthma).  Dr. B.W.J. stated that, in her medical opinion, the Veteran had severe bronchospastic obstructive lung disease that developed at a very early age, which was exacerbated by his previous exposure to tobacco, smoke, crack, and by other environmental exposures, specifically trichloroethylene and PCE that were present in the contaminated water he was exposed to while stationed at Camp Lejeune.  She stated that, trichloroethylene and PCE had been reported to exacerbate respiratory hypersensitivity and this also could have contributed to the severe hyper-responsive component of his lung disease that was not typically seen with pure emphysema.  

During his February 2014 videoconference hearing, the Veteran testified that his VA physician, Dr. B.W.J., had been treating him for five years and that, after performing research on the chemicals noted in the contaminated water at Camp Lejeune, she was able to provide an opinion connecting his pulmonary condition to the contaminated water at Camp Lejeune.  He also confirmed this opinion already had been submitted to VA (presumably referring to the one mentioned earlier in this decision).  


The VA medical records, including the report of the Veteran's VA examination and the consequent opinion and letters from his VA physicians, especially the October 2012 letter from Dr. B.W.J., taken together, at the very least place the evidence in a state of relative equipoise, meaning just as supportive of the claim as it is against it.  In this circumstance the Board must resolve this doubt in the Veteran's favor and grant the claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology.).


ORDER

Service connection for lung disease, diagnosed as COPD and severe bronchospastic obstructive lung disease, including especially from exposure to contaminated water at Camp Lejeune, is granted.


REMAND

Although the Veteran was provided a VA examination in December 2012 and a VA addendum opinion was obtained concerning the remaining disabilities, including congestive heart disease and infertility (also diagnosed as hypogonadism), the examiner apparently was unable to, so resultantly did not specify, whether it was as likely as not that the Veteran's conditions were related to his service.  Thus, the examination and addendum were inadequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).


Furthermore, considering his testimony during his February 2014 videoconference hearing that his congestive heart failure and infertility were possibly secondary to his lung disorder, which, as a result of this decision, is now a service-connected disability, medical comment is needed to assist in determining whether his congestive heart failure and infertility were caused by or are related to his service, including the exposure to contaminated water at Camp Lejeune, and whether they were caused or are being aggravated by the now service-connected lung disorder.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439, 448 (1995).  

In addition, as the record reflects the Veteran has received continuing treatment from VA, and that the most recent VA medical records in the file only date up to March 2012, so from more than two years ago, all more recent records also need to be obtained and considered.  38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, these remaining claims are REMANDED for the following additional development and consideration:

1.  Obtain and associate with the claims file all pertinent VA and private medical records adequately identified by the Veteran, including especially all outstanding VA medical records dated since March 2012.

2.  Upon receipt of all additional records, schedule the Veteran for a VA compensation examination.  The claims file, including a complete copy of this remand, are to be made available to and reviewed by the examiner in connection with the examination to determine the nature and etiology of his congestive heart failure and infertility.


In making this necessary determination, the examiner must remain mindful that the Veteran is competent to report certain events having occurred during his service and is competent to report on symptoms experienced and treatment provided since they are based on his firsthand knowledge.  The Board ultimately will also have to assess his credibility, as only then does his lay testimony ultimately have probative value.

In the meantime, the examiner is specifically asked to review the letters and opinions provided by the Veteran and his VA physicians from July 2009, April 2010, September 2010, October 2011 and October 2012.  

The examiner is then asked to answer the following:  

(a).  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's congestive heart failure was incurred during his active military service, within one year of his discharge, or is otherwise related to any disease, event, or injury during his service, especially exposure to contaminated water at Camp Lejeune.  

(b).  Whether it is at least as likely as not (50 percent or greater probability) that his congestive heart failure alternatively was caused OR is being aggravated by his lung disorder, including any treatment rendered for this now service-connected disability.


(c).  If it is determined the Veteran's congestive heart failure is being aggravated by his service-connected lung disorder, to the extent possible the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation.  

(d).  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's infertility was incurred during his active military service or, or is otherwise related to any disease, event, or injury during his service, exposure to contaminated water at Camp Lejeune.  

(e).  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's infertility was is a direct result of his military service, including especially the exposure to contaminated water at Camp Lejeune, or alternatively is secondarily related to the Veteran's service, particularly caused OR being aggravated his now 
service-connected lung disorder, including any treatment rendered for this service-connected disability.  

(f).  If it is determined that the Veteran's infertility was aggravated by his service-connected lung disorder, to the extent possible the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation.  

It is most essential in providing his/her responses that the VA examiner provide explanatory rationale, if necessary citing to specific evidence in the file supporting conclusions.  

3.  Ensure the examiner's opinion is responsive to these determinative issues of causation and aggravation.  If not, return the report for all necessary additional information.  38 C.F.R. § 4.2.

4.  Then readjudicate these remaining claims in light of this and all other additional evidence.  If these claims continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. 

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. 2013).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs