Citation Nr: 1600207 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 14-21 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes, to include as secondary to exposure to contaminated water at Camp Lejeune, North Carolina. 2. Entitlement to service connection for loss of the sense of smell, to include as secondary to exposure to contaminated water at Camp Lejeune, North Carolina. 3. Entitlement to service connection for vasodepressor syncope (syncope) (claimed as blackouts), to include as secondary to exposure to contaminated water at Camp Lejeune, North Carolina. 4. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to exposure to contaminated water at Camp Lejeune, North Carolina. ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. Any further development or adjudication of these matters should take into account both the paper and electronic files. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is warranted for the Veteran's claims. The Veteran's service treatment records (STRs) indicate that he experienced fainting spells in December 1965, July 1966, and August 1966. The Board notes that the Veteran's STRs also indicate that he served at Camp Lejeune. On remand the AOJ should obtain the Veteran's service personnel record in order to determine the exact dates in which the Veteran served at Camp Lejeune, as this is relevant toward determining the extent to which the Veteran may have been exposed to contaminated water. Available treatment records note that the Veteran has been diagnosed with diabetes and ED during the course of the claim. Records from 2001 and 2003 note syncope, although the VA examiner found no current disability. In June 2011 the Veteran was afforded a VA examination in conjunction with his claims for service connection. Unfortunately, the examiner provided inconsistent statements regarding whether the Veteran has actually lost his sense of smell, initially stating that there was "no objective evidence of pathology to explain the claim..." then stating, that the Veteran's sense of smell was partially lost. The examiner also failed to provide any opinion as to a possible relationship between the Veteran's loss of smell and his service, to include exposure to contaminated water at Camp Lejeune. Regarding the Veteran's claim for service connection for diabetes, the June 2011 examiner opined that the Veteran's diabetes was less likely than not related to his exposure to contaminated water in service. In support thereof, the examiner noted that available medical literature did not establish a cause effect relationship between diabetes and exposure to contaminated water at Camp Lejeune. The examiner failed to explain why the Veteran's diabetes was not related to exposure to contaminated water, as opposed to why diabetes generally is not related to exposure to contaminated water. While the Veteran was not afforded an examination or opinion regarding any possible relationship between the Veteran's ED and his service, the Board notes that in a September 2011 treatment record from the Veteran's diabetes physician, Dr. Magee, mild ED was noted. Given the foregoing, the Board finds that remand is necessary for procurement of new VA examinations and opinions prior to adjudication of the Veteran's diabetes and ED claims. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014). In providing the requested opinions, the examiner(s) should note that the mere fact that a condition is not noted by VA to be related to service at Camp Lejeune under 38 C.F.R. §17.400 (2015), is not, in and of itself, a sufficient basis to deny service connection for that condition. See generally Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that it is inappropriate to "permit the denial of direct service connection simply because there is no presumptive service connection."). Rather, if the condition is linked to service or to exposure to contaminated water by probative medical opinion, service connection can be granted. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide completed release forms with the names and addresses of medical care providers who have recently treated him for his diabetes, loss of smell, syncope, and ED. After securing the necessary release, the AOJ should request any relevant records identified that are not already of record. If any requested records are not available, the Veteran should be notified of such. 2. Request the Veteran's service personnel record and associate such documents with the claims file. If the records are not available, a memorandum of unavailability should be prepared and the Veteran notified of such. 3. Schedule the Veteran for a diabetes examination to obtain an opinion. The claims file must be reviewed by the examiner in conjunction with the examination. After review of the claims file and examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diabetes arose in or is etiologically related to his military service, to include his exposure to contaminated drinking water at Camp Lejeune. The examiner should also opine whether the Veteran's ED is at least as likely as not related to his military service, to include his exposure to contaminated drinking water at Camp Lejeune. The examiner should explain the reasoning for the opinions provided. 4. Schedule the Veteran for a sense of smell examination to obtain an opinion. The claims file must be reviewed by the examiner in conjunction with the examination. After review of the claims file and examining the Veteran, the examiner should indicate whether the Veteran has lost or partially lost his sense of smell. If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's loss of the sense of smell arose in or is etiologically related to his military service, to include his exposure to contaminated drinking water at Camp Lejeune. The examiner should explain the reasoning for the opinions provided. 5. After the development requested above has been completed to the extent possible, the AOJ should again review the record. If the benefits sought on appeal remain denied, the appellant should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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 2014). _________________________________________________ K. A. BANFIELD 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).