Citation Nr: 1543504 Decision Date: 10/09/15 Archive Date: 10/13/15 DOCKET NO. 13-34 148A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from June 1960 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran served on active duty in the U.S. Marine Corps from June 1960 to June 1964. He claims that he has diabetes mellitus as a result of exposure to contaminated water during his service at Camp Lejeune. As explained in detail below, the evidence of record also raises an alternate theory of entitlement based on herbicide exposure. With regard to claims alleging exposure to contaminated water at Camp Lejeune, the M21-1, IV.ii.2.C.5.j., provides as follows: Prior to 1987, persons residing or working at the U.S. Marine Corps Base at Camp Lejeune, North Carolina, were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). Contaminants included trichloroethylene (TCE), perchloroethylene (PCE), benzene, vinyl chloride, and VOCs. Service connection for any disease alleged to have been caused by contaminated water at Camp Lejeune requires evidence of a current disease, evidence of service at Camp Lejeune during the period of contamination, and a medical nexus between the two, justified with a rational scientific explanation. The Board adds that diabetes mellitus is not among the "non-exclusive" list of diseases provided in the M21-1, IV.ii.2.C.5.p., as "potentially associated" with exposure to contaminants in the Camp Lejeune water supply between 1953 and 1987. Also, as noted in the M21-1, "there are currently no presumptive diseases attributed to service at Camp Lejeune by statute, regulation, or VA policy." The Board notes that new M21-1, M21-1, IV.ii.2.C.5, is effective August 7, 2015, and replaces prior M21-1MR, IV.ii.2.C.12. The RO obtained a March 2013 VA medical opinion. The examiner noted that the Veteran had diagnosed diabetes mellitus, but the examiner opined that it is less likely than not related to the Veteran's service, including exposure to contaminated water at Camp Lejeune, reasoning in short that his service treatment records were unremarkable, he was not diagnosed until 1990, and there is no known association of diabetes and solvent exposure; rather, the examiner opined the Veteran's diabetes was probably due to his risk factors of high cholesterol, and hypertension combined with a history of heavy alcohol use (noted as "heavy chronic alcoholism that started after release from active duty (1964) and lasting until 1999. . . quantified as a 12-pack every morning and heavy drinking throughout the rest of the day"). The Board acknowledges that the March 2013 VA medical opinion was provided by a "designated subject matter expert" on the Camp Lejeune Contaminated Water Project at the Atlanta VA medical center, and that the examiner cited the 2009 National Research Council (NRC) report, Contaminated Water Supplies at Camp Lejeune: Assessing Potential Health Effects. However, Training Letter 10-03 provides that when requesting a VA examination or medical opinion involving exposure to contaminated water at Camp Lejeune, the request should include the fact sheet attached to the Training Letter relating to contaminated water exposure at Camp Lejeune. See also M21-1. IV.ii.1.l.6.f (Attach the documents titled Internet websites related to the issue of contaminated water at Camp Lejeune, Diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1953 and 1987, Internet websites describing potential health effects of exposure to chemical contaminants present in the water supply of Camp Lejeune between 1953 and 1987, and Notice to Examiners Evaluating Claims Based on Service at Camp Lejeune provided in Exhibits 6 through 9). There is no indication that this fact sheet or the other aforementioned materials were provided to the VA examiner by the RO. Therefore, this matter should be remanded so that the March 2013 VA examiner may be provided with a copy of the Training Letter 10-03 fact sheet relating to Camp Lejeune contaminated water exposure, and so that the examiner may note whether there is any change in his medical opinion based on a review of that fact sheet. In addition, regarding whether the Veteran was exposed to herbicides during his active service, the Board acknowledges that generally, under 38 C.F.R. § 3.307(a)(6)(iii), veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to herbicides, and diabetes mellitus is one of the diseases listed in 38 C.F.R. § 3.309(e) for which presumptive service connection may be awarded based on herbicide exposure. See also 38 U.S.C.A. § 1116(f) (West 2014). "'Service in the Republic of Vietnam' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii) (emphasis added). It is also generally considered as including service in the inland waterways or "brown waters" of Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008); Training Letter 10-06; Notice, Department of Veterans Affairs, Presumption of Exposure to Herbicides for Blue Water Navy Vietnam Veterans Not Supported, 77 Fed. Reg. 76170 (Dec. 19, 2012). The Board adds that it is cognizant of the recent case of Gray v. McDonald, 27 Vet. App. 313 (2015), involving a claim by a Navy veteran for service connection for diabetes based on herbicide exposure, in which the Court held that VA's definition of inland waterways as excluding Da Nang Harbor is not entitled to deference, and vacated the Board decision and remanded the matter for "VA to reevaluate" whether Da Nang constitutes an inland waterway for purposes of the presumption of herbicide exposure. The Veteran's personnel records include an embarkation record that shows that he served aboard the USS Princeton (LPH-5) from March 1963 to May 1963. Although the USS Princeton is among the C&P list of ships with service in Vietnam and exposure to herbicide agents, the list only includes the USS Princeton for dates the Veteran was not on board. Specifically, for April 1962, when the Veteran's service records reflect he was at Camp Lejeune, in April 1966 and from October 1964 to December 1968, which dates are after he separated from service. The Board further notes that there is otherwise no evidence of record indicating that the USS Princeton ever served on inland waterways or "brown waters." However, the Board acknowledges that the embarkation record notes that the USS Princeton arrived in Saigon on April 17, 1963, and then sailed from Saigon that same day. The record does not indicate whether the ship ever docked to shore or a pier, or whether the Veteran set foot on land in Vietnam. The Board is cognizant that the focus of the Veteran's statements in this case has been his contaminated water exposure in Camp Lejeune, rather than addressing whether he set foot in Vietnam in April 1963 (or any other time during his service). Based on the Veteran's embarkation record indicating a possibility that the USS Princeton may have docked to shore or a pier in Vietnam, the Board finds that on remand, the RO should ask the Veteran whether he ever set foot on land in Vietnam, particularly on April 17, 1963 when his embarkation record reflects his ship arrived in Saigon and then sailed from Saigon that same day. If so, then the RO should perform additional development to verify whether the ship docked to shore or a pier in Vietnam between March 1963 and May 1963, particularly around Saigon around April 17, 1963. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran whether he ever set foot in Vietnam, including on April 17, 1963 when his embarkation record reflects his ship arrived in Saigon and later sailed from Saigon that same day. 2. If so, perform additional development to verify whether the USS Princeton ever docked to shore or a pier in Vietnam at any time between March 28, 1963 to May 5, 1963 - particularly on or around April 17, 1963, when the Veteran's embarkation record reflects the ship arrived in Saigon and later sailed from Saigon that same day. 3. As the record shows the Veteran was in receipt of Social Security Administration (SSA) disability benefits, request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed pursuant to 38 C.F.R. § 3.159(e). 4. After the above development has been completed, provide the March 2013 VA examiner with a copy of the Fact Sheet attached to Training Letter 10-03 regarding contaminated water exposure at Camp Lejeune (as directed by Training Letter 10-03 and Fast Letter 11-03 which were in effect during the pendency of this claim), and the documents titled Internet websites related to the issue of contaminated water at Camp Lejeune, Diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1953 and 1987, Internet websites describing potential health effects of exposure to chemical contaminants present in the water supply of Camp Lejeune between 1953 and 1987, and Notice to Examiners Evaluating Claims Based on Service at Camp Lejeune provided in Exhibits 6 through 9. M21-1. IV.ii.1.l.6.f . Ask the examiner to review the aforementioned documents and explain whether it is at least as likely as not (probability of 50 percent or greater) that diabetes mellitus is related to contaminated water exposure while serving at Camp Lejeune. A rationale should be provided for the opinion. If the same VA examiner is not available, obtain a new VA medical opinion from an equally qualified clinician. 5. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the appeal should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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. S. TOTH 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) (2015).