Citation Nr: 1625471 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 14-36 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for lung cancer, claimed as due to exposure to contaminated drinking water at Camp Lejeune. 2. Entitlement to service connection for renal disease, status post kidney transplant, claimed as due to exposure to contaminated drinking water at Camp Lejeune. REPRESENTATION Veteran represented by: Robert W. Gillikin, II, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The case was subsequently transferred to the Louisville, Kentucky RO, which maintains primary jurisdiction of claims involving exposure to contaminated drinking water at Camp Lejeune. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran maintains that his lung cancer, status post right upper lobe lobectomy, and his end-stage renal disease, status post kidney transplant, were caused by exposure to contaminated drinking water while stationed at Camp Lejeune, and on this basis he claims that service connection is warranted for the disabilities. Service personnel records show that he served on active duty from February 1972 to May 1974, and that he spent most if not all his period of service at Camp Lejeune. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See M21-1 Adjudication Procedures Manual, Part IV, Subpart ii, Chapter 1, Section I, paragraph 17. In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See M21-1, Part IV, Subpart ii, Chapter 1, Section I, paragraph 15 (citing the National Academy of Sciences' National Research Council's (NRC) report, "Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.") Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. M21-1, Part III, Subpart iii, Chapter 2, Section E, paragraph 7 (last updated May 25, 2016). Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These fourteen diseases are: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. M21-1, Part IV, Subpart ii, Chapter 1, Section I, paragraph 15. Thus, the Veteran's exposure to contaminated water at Camp Lejeune is conceded. Moreover, private and VA medical evidence confirms his current disability status regarding lung cancer and kidney disease. Thus, the final element to substantiate his claim of service connection is a nexus between the present disabilities and injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (In order to prevail on the issue of service connection, there must be evidence of: a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the disease or injury in service and the present disability.) The Veteran underwent a VA examination in May 2011 in order to determine whether his disabilities were at least as likely as not the result of the contaminated water exposure. The examiner's opinions were unfavorable to the claims. She found that the Veteran's small cell lung cancer was most likely due to his history of smoking and not caused by or a result of his exposures at Camp Lejeune. She also found that his end-stage renal disease was due to hypertension and not caused by or a result of his exposures at Camp Lejeune. The Board finds the May 2011 opinion is inadequate because the rationale is deficient. For example, the examiner did not discuss why she felt smoking and hypertension were the more probable causes for the Veteran's disabilities than his conceded exposures to the contaminated water. She did not cite to or reference any studies in her conclusion. Also, she indicated in her report that the Veteran had "medical conditions that contributed to" his present disabilities, namely, his tobacco use disorder (listed on the Veteran's VA problem list) and hypertension, which suggests that there may be other contributing factors (which is an argument noted by the Veteran's representative). Thus, an opinion should reflect whether or not exposures to contaminated water at Camp Lejeune contributed, at least in part, to the development of the lung and kidney disabilities. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation explaining the conclusion being reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, this case is returned to the RO so that it may arrange for the Veteran to undergo another examination that will be sufficient to decide his claims. In that regard, the RO should adhere to the guidance provided in M21-1, Part III, Subpart iii, Chapter 2, Section E, paragraph 7, including obtaining details about the Veteran's service at Camp Lejeune such as the length of time he worked there, his duties/locations while there, and whether he resided on base or off base. Such information will assist the VA examiner in determining the likelihood of a relationship between the Veteran's exposure to contaminated water at the base and the development of his lung and kidney diseases. (Such information does not appear to have been made available to the VA examiner in May 2011.) Moreover, the RO should also adhere to the procedures outlined in M21-1, Part IV, Subpart ii, Chapter 1, Section I, paragraph 6, subparagraph f, including furnishing the VA examiner all appendices shown in M21-1, Part IV, Subpart ii, Chapter 1, Section I, paragraphs 14-17. (This was not accomplished for the May 2011 VA examination, when the RO was abiding by VBA Training Letter 11-03, which was then in effect and which has subsequently been rescinded and incorporated into M21-1.) Additionally, it does not appear that the RO obtained the private records from the University of Pittsburgh, for which the Veteran had submitted three different medical releases. The RO requested these records in July 2013, and in a response dated in August 2013, the University of Pittsburgh indicated that it was releasing 69 pages of records (at no cost) to VA. Those records are not contained in the claims file and the RO did not refer to them in its statement of the case in July 2014. Thus, the RO should make another effort to obtain them. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should secure for association with the claims file the records of the Veteran's treatment for lung cancer and renal disease from the University of Pittsburgh, as indicated in medical releases he previously submitted. In that regard, it is noted that the RO sought such records in July 2013, and the University of Pittsburgh appeared to have responded with records in August 2013, but there is no evidence that the records associated with the file. If the Veteran needs to submit updated medical releases, then the AOJ should request them from him. All efforts to obtain the records should be documented in the file. 2. Thereafter, the AOJ should obtain information concerning the Veteran's service at Camp Lejeune, namely, the length of time he worked there, his duties and the locations where he worked on base, and whether he resided on base or off base (in accordance with the guidance in M21-1, Part III, Subpart iii, Chapter 2, Section E, paragraph 7, subparagraph b). The AOJ should request such information from the Veteran, if necessary. This information should be made available to the VA examiner in #3. 3. Thereafter, the AOJ should arrange to have the Veteran undergo a VA examination to determine the nature and cause of his lung and kidney diseases. The claims file should be made available to the examiner in conjunction with the examination. The examiner is asked to opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed lung cancer, status post right upper lobe lobectomy, and end-stage renal disease, status post kidney transplant, arose during (were first manifested in) or were otherwise causally related, at least in part, to his active duty service from February 1972 to May 1975, to include his conceded exposure to contaminated drinking water at Camp Lejeune therein. If it is determined that the lung cancer and/or renal disease was unrelated to the Veteran's service, the examiner should identify the causal factor(s) considered more likely and explain the reasons for this conclusion. To assist the examiner in furnishing an opinion, the AOJ should provide the examiner with the assembled information about the Veteran's service at Camp Lejeune, as referenced in #2 concerning the length of time he worked there, his duties and the locations where he worked on base, and whether he resided on base or off base; and ensure that the examiner is furnished all appendices shown in M21-1, Part IV, Subpart ii, Chapter 1, Section I, paragraphs 14-17. The examiner must provide an explanation of rationale for all opinions, expressing agreement or disagreement with the May 2011 VA opinion and considering the findings of the NRC's 2009 report ("Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects") and any related studies and medical literature on the subject. If the requested opinion cannot be provided without resort to speculation, the examiner should so state AND explain why an opinion cannot be provided without resort to speculation, to include whether an opinion is beyond what may reasonably be found (based on the evidence of record and current medical knowledge). 4. After the foregoing is completed, the AOJ should adjudicate the Veteran's claims seeking service connection for lung cancer and renal disease, status post kidney transplant. If the benefits sought remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2015).