Citation Nr: 1632940 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 12-27 024A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, including anxiety and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bladder cancer, including as related to herbicide exposure and exposure to contaminated water at Camp Lejeune. REPRESENTATION Appellant represented by: Shea A. Fugate, Attorney WITNESSES AT HEARING ON APPEAL The Veteran & his spouse ATTORNEY FOR THE BOARD T. Theophilus Griffin, Counsel INTRODUCTION The Veteran had active service from September 1966 to April 1970, including service in the Republic of Vietnam and at Camp Lejeune. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the St. Petersburg, Florida, Regional Office. Based on review of the evidence of record and the benefits sought by the Veteran, the Board has recharacterized the service connection claim for PTSD, as reflected on the title page. See DiLisio v. Shinseki, 25 Vet. App. 45, 53-56 (2011); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In May 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. The issue of entitlement to service connection for prostate cancer has been raised by the Veteran's statements at his May 2016 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The respective August 2009 and April 2012 VA examination opinions provided in connection with the Veteran's service connection claim for an acquired psychiatric disorder are inadequate. The reasoning supplied to support the respective opinions relies largely, if not entirely, on a single service November 1968 medical board examination and do not address the April 1967 and February 1969 statements from the Veteran's mother contained in his service treatment records. Additionally, the Veteran provides a competent account of in-service blast exposure, and this is particularly relevant given his complete service treatment records are not available and his receipt of the Combat Action Ribbon. As the conclusions of the respective August 2009 and April 2012 VA examinations do not adequately consider and address these competent and relevant pieces of evidence, on remand a sufficient medical examination and opinion must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The medical evidence of record confirms the Veteran's diagnosis of, and treated for, bladder cancer. The Veteran also has documented service at U.S. Marine Corps Base Camp Lejeune, North Carolina, from at least December 1966 to October 1968 and VA has acknowledged that Veterans serving at this location were potentially exposed to contaminants present in the base water supply prior to 1987. See VA Training Letter 11-03 (Revised), Nov. 29, 2011. Significantly, bladder cancer is one of the fourteen disease conditions that has been identified by VA and the National Academy of Sciences' National Research Council as having demonstrated "limited/suggestive" evidence of being associated with exposure to contaminated water. There is no presumption of service connection for bladder cancer related to potential exposure to contaminated water at U.S. Marine Corps Base Camp Lejeune. Accordingly, on remand VA is required obtain a medical examination and opinion addressing the specific facts of this case. Id.; see also 38 C.F.R. § 3.159(c)(4) (2015). While the Veteran indicated at his May 2016 hearing that he did not receive regular treatment for his claimed psychiatric disability, he did indicate that he received regular treatment related to the claimed bladder cancer disability, both private and VA. However, the record does not reflect sufficient efforts to obtain these reasonably identified relevant post-service private treatment records nor VA treatment records dated prior to November 2008 and since March 2009. On remand, attempts to obtain these records must be undertaken. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request he indicate the dates and location(s) of any private bladder cancer and psychiatric treatment, hospitalization, or examination, since separation from service, including the private physician referenced at his May 2016 Board hearing. Then undertake appropriate efforts to obtain any identified records and associate all development efforts with the claims folder. 2. Contact the Veteran and request he identify the dates and locations of any VA bladder cancer and psychiatric treatment, hospitalization, or examination, prior to November 2008 and since March 2009. Attempt to obtain any identified VA treatment records and any negative response(s) should be in writing and associated with the claims folder. 3. Upon completion of the aforementioned development efforts and after any obtained records, and/or negative response(s), are associated with the claims folder, schedule the Veteran for additional VA examination for further medical comment concerning the current nature, onset and etiology of any bladder cancer disability or residuals, consistent with Fast Letter 11-03, Consolidation and Processing of Disability Claims Based on Exposure to Contaminated Drinking Water at Camp Lejeune, North Carolina. The claims folder must be made available to and reviewed by the examiner, with such review noted in the provided report. The examiner should record the full history of the disorder, including the Veteran's account of symptomatology, and all necessary tests should be performed. The examiner must diagnose all bladder cancer pathology found to be present, if any, specifically identifying any relevant residuals that may be present. As to each diagnosed disability, the examiner must provide an opinion, consistent with VA Fast Letter 11-03, Consolidation and Processing of Disability Claims Based on Exposure to Contaminated Drinking Water at Camp Lejeune, North Carolina. The examiner should diagnose all bladder cancer condition(s) currently present or since the filing of the claim. And for each diagnosis the examiner must state whether it is at least as likely as not the condition: (a) is related to or the result of the Veteran's active military service, herbicide exposure and possible exposure to contaminated water at Camp Lejeune, North Carolina; and (b) had its onset in-service or within one year of separation Note: In providing the requested opinions, the examiner is to presume the Veteran was exposed to herbicides. Additionally, the examiner is to presume the Veteran was exposed to Trichloroethylene (TCE), Tetrachloroethylene (PCE), or a mixture of the two, while stationed at Camp Lejeune from at least December 1966 to October 1968. The provided examination opinion(s) is to specifically reflect concession of the aforementioned facts. The provided examination report must reflect consideration of both the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions. All tests deemed necessary by the examiner must be performed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 4. Upon completion of the aforementioned development efforts and after any obtained records, and/or negative response(s), are associated with the claims folder, schedule the Veteran for additional VA examination for further medical comment concerning the current nature, onset and etiology of any acquired psychiatric disorder. The claims folder must be made available to and reviewed by the examiner, with such review noted in the provided report. The examiner should record the full history of the disorder, including the Veteran's account of symptomatology, and all necessary tests should be performed. (A) The examiner is to diagnose all psychiatric pathology, if any is present, specifically ruling out or diagnosing anxiety and PTSD. (B) If a diagnosis of PTSD is warranted the examiner is to provide an opinion as to whether it is as likely as not that the disability is related to service, specifically considering the Veteran's receipt of the Combat Action Ribbon which is indicative of participation in combat operations with the enemy. (C) As to all diagnosed psychiatric disorders other than PTSD, the examiner is to opine whether it is at least as likely as not that the condition (i) had its onset in service or within one year of separation; and (ii) is related to the Veteran's period of military service. The provided examination report must reflect consideration of the medical and lay evidence of record, and specifically address the statements from the Veteran's mother associated with his service treatment records, and his competent account of involved in a land mine while serving in the Republic of Vietnam. Also, the examiner must address the aspect of the November 1968 medical board examination report, noting the Veteran's presentation with a flattened affect. All tests deemed necessary by the examiner must be performed and the examiner is to set forth a complete rationale for all findings and conclusions. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 5. After completing the above, ensuring compliance with VA Fast Letter 11-03, Consolidation and Processing of Disability Claims Based on Exposure to Contaminated Drinking Water at Camp Lejeune, North Carolina has been accomplished, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicate based on the entirety of the evidence of record. If the any claim remains denied, the Veteran and his attorney should be issued a Supplemental Statement of the Case, and the appeal returned for appellate review. An appropriate period of time should be allowed for response. 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). _________________________________________________ MILO H. HAWLEY 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).