Citation Nr: 1502515 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 09-09 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lung disease, to include miliary tuberculosis, asthma, and emphysema. 2. Entitlement to service connection for a kidney disability, to include renal tuberculosis, residuals of kidney removal, and residuals of ureter removal (claimed as urethra removal). 3. Entitlement to service connection for tuberculous meningitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to August 1968, which includes service in the Republic of Vietnam. These matters initially came before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The RO in Winston-Salem, North Carolina currently has jurisdiction over the Veteran's claims. In November 2012, the Board denied the Veteran's petition to reopen the claim of service connection for renal tuberculosis, miliary tuberculosis, and tuberculous meningitis. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In July 2013, the Court set aside the Board's November 2012 decision and remanded the case for readjudication in compliance with directives specified in a July 2013 Joint Motion filed by counsel for the Veteran and VA. In March 2014, the Board bifurcated the claim into three issues, reopened the claim for service connection for renal tuberculosis, miliary tuberculosis, and tuberculous meningitis, and remanded that issue and the issues of entitlement to service connection for lung disease and a kidney disability for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he began to experience symptoms associated with tuberculosis while serving in Vietnam (including profuse sweating, high fever, nausea, headaches, and a rash) and that he has continued to experience such symptoms in the years since service. In the alternative, his representative has contended that the Veteran's claimed disabilities are the result of his exposure to contaminated water at Camp Lejeune. A VA examination was conducted in May 2014 and it was explained that the Veteran had inactive pulmonary and renal tuberculosis, but that he had current emphysema as a residual of the pulmonary tuberculosis and current urinary symptoms and scarring as residuals of the renal tuberculosis. The physician assistant who conducted the examination opined that "the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." She reasoned that the Veteran's cough, which was documented a couple of times in his service treatment records, was diagnosed as a cold or virus. His subsequent tuberculosis tines and PPD testing continued to be negative after the documented medical visits for a cough. The Veteran reported side pains while in service, but the chest and side pain documented during service had specific etiologies (a motor vehicle accident and lifting a mail bag) which caused the diagnosed muscle injury (after the mail bag lift) and chest contusion (after the motor vehicle accident). There was no documentation that the Veteran continued to have an unresolved cough or chest/side pain while on active duty. Overall, the Veteran had not shown that the tuberculosis diagnosed in 1977 (9 years after leaving active duty) was related to any illness which occurred while on active duty. The examiner who conducted the May 2014 VA examination re-reviewed the Veteran's claims file in November 2014 and again opined that "the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." She explained that the Veteran had a negative tuberculosis tine test in May 1966 long after the report of headache and cough in September 1964. Thus, it was likely that the headache and cough in September 1964 was a self-limited viral infection and did not represent a tuberculosis infection. The Veteran was diagnosed with a cold (virus) in February 1967 and the subsequent tuberculosis tine test performed in March 1967 was read as 5 millimeters and was considered a negative test. He had a normal physical examination in August 1968 (1.5 years after the February 1967 visit for cold symptoms) in which there were no pulmonary abnormalities recorded during the examination or in the documentation. Therefore, it was not likely ("less likely than not") that the two episodes of upper respiratory symptoms recorded in the service treatment records were related to a tuberculosis infection. Also, there was no documentation within the 3 years after service of a positive tuberculosis test or of the Veteran having continuing symptoms suggesting tuberculosis. The May and November 2014 opinions are insufficient because it is apparent from the accompanying rationales that they essentially pertain to the etiology of the Veteran's previously diagnosed (but currently inactive) tuberculosis, but do not pertain to any current lung disease, kidney disability, or meningitis. Also, these opinions do not reflect consideration of the Veteran's reports of a continuity of symptomatology (e.g., night sweats and headaches) in the years since service. In this regard, a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In addition, opinions are now necessary as to whether any of the Veteran's claimed disabilities are related to his exposure to contaminated water at Camp Lejeune, as service personnel records confirm that he was stationed at that location from November 1964 to March 1966 and from April 1967 to August 1968. Finally, the November 2014 VA examination report identifies relevant private treatment records that are not currently included among the Veteran's paperless records, namely a March 2011 consultation referencing lung and kidney problems, the results of a May 2011 chest X-ray, and the results of a November 2011 pulmonary function test. The identified records also include a March 2011 discharge summary from New Hanover Regional Medical Center (New Hanover) which references a "nephrectomy during the Vietnam War due to shrapnel injury." Although the AOJ previously contacted New Hanover and requested all relevant treatment records, that facility responded that no records were available at that time. Hence, a remand is also necessary to attempt to obtain additional relevant private treatment records. Moreover, the Veteran's representative contended in a December 2014 statement that the Veteran's service treatment records are incomplete because they do not include records pertaining to his service in the Marine Corps Reserve and Army National Guard. Thus, any such records should be obtained upon remand. Accordingly, the case is REMANDED for the following action: 1. Request all available service treatment records pertaining to any Marine Corps Reserve and Army National Guard service by the Veteran. 2. After securing any necessary releases from the Veteran, obtain all records of his treatment for tuberculosis, a lung disease, a kidney disability, and meningitis from: (a) a March 2011 consultation referencing lung and kidney problems (see page 9 of the November 2014 VA examination report); (b) a May 2011 chest X-ray (see page 9 of the November 2014 VA examination report); (c) a November 2011 pulmonary function test (see page 9 of the November 2014 VA examination report); and (d) New Hanover Regional Medical Center records dated in March 2011 (see the March 2011 discharge summary referenced on page 9 November 2014 VA examination report). 3. Then schedule the Veteran for a VA examination to assess the nature and etiology of any current lung disease. All indicated tests and studies shall be conducted. With respect to each current lung disease identified (i.e., any lung disease diagnosed since August 2007 including, but not limited to, asthma and emphysema), the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current lung disease had its clinical onset in service, is related to any of the Veteran's documented or reported symptoms in service, is related to his exposure to contaminated water at Camp Lejeune, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on all lung diseases diagnosed since August 2007 (including, but not limited to, asthma and emphysema), any instances of treatment for potential lung or tuberculosis-related symptoms in the Veteran's service treatment records, the results of the March 1967 PPD test conducted in service (included on the immunization records in the Veteran's service treatment records), the Veteran's presumed exposure to contaminated water at Camp Lejeune, and his reports of night sweats and headaches in service and of a continuity of symptomatology in the years since service. A complete rationale should be given for all opinions and conclusions expressed. 4. Schedule the Veteran for a VA examination to assess the nature and etiology of any current kidney disability. All indicated tests and studies shall be conducted. With respect to each current kidney disability identified (i.e., any kidney disability diagnosed since August 2007), the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current kidney disability had its clinical onset in service, had its onset in the year immediately following service (in the case of any currently diagnosed nephritis), is related to any of the Veteran's documented or reported symptoms in service, is related to his exposure to contaminated water at Camp Lejeune, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on all kidney disabilities diagnosed since August 2007, any instances of treatment for potential kidney or tuberculosis-related symptoms in the Veteran's service treatment records, the results of the March 1967 PPD test conducted in service (included on the immunization records in the Veteran's service treatment records), the Veteran's presumed exposure to contaminated water at Camp Lejeune, and his reports of night sweats and headaches in service and of a continuity of symptomatology in the years since service. A complete rationale should be given for all opinions and conclusions expressed. 5. Schedule the Veteran for a VA examination to assess the nature and etiology of any current meningitis. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. With respect to any meningitis diagnosed since August 2007, the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current meningitis had its clinical onset in service, had its onset in the year immediately following service (in the case of any current organic disease of the nervous system), is related to any of the Veteran's documented or reported symptoms in service, is related to his exposure to contaminated water at Camp Lejeune, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on any meningitis diagnosed since August 2007, any instances of treatment for potential meningitis or tuberculosis-related symptoms in the Veteran's service treatment records, the results of the March 1967 PPD test conducted in service (included on the immunization records in the Veteran's service treatment records), the Veteran's presumed exposure to contaminated water at Camp Lejeune, and his reports of night sweats and headaches in service and of a continuity of symptomatology in the years since service. A complete rationale should be given for all opinions and conclusions expressed. 6. If a benefit sought on appeal remains denied, issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran 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 2014). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).