Citation Nr: 1753378 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-26 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for systemic lupus erythematosus (lupus). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 1984. She served honorably in the United States Marine Corps, including at Camp Lejeune, North Carolina. Later, she had honorable service in the Alabama Army National Guard from August 1989 to October 1999 and in the United States Army Reserve from October 1999 to October 2005. The Board thanks the Veteran for her service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2015 the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In November 2015 it was remanded for further development, to include verification of the Veteran's claimed active duty service in 2003 and participation in a September 2002 drill weekend. For the reasons stated below, this appeal is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran contends that her lupus is associated with claimed active duty service in the Army in 2003 or a drill weekend that she participated in as an Army Reservist in September 2002. In addition to the previous search efforts described in the November 2015 remand, subsequent attempts to corroborate the Veteran's 2003 active duty service from the Defense Personnel Records Information System (DPRIS) and the Defense Finance and Accounting Services (DFAS) revealed no remarks pertaining to her allegations. Critically, no Army DD-214 was obtained from DPRIS. VA's cumulative search for the records has been exhaustive. A claim must be based on verifiable service. See Holmes v. Brown, 10 Vet. App. 38, 40 (1997). Regarding the September 2002 drill weekend, a DFAS payment worksheet shows that the Veteran did participate in a drill weekend in September 2002. However, a VA examination and medical opinion dated May 2016 found it was less likely than not incurred in or caused by active duty or inactive duty for training in September 2002 because the Veteran's lupus symptoms predate September 2002. The opinion was based on review of medical reports which reflect that her symptoms began months earlier, in the summer of 2002. In any event, service connection may be granted only for a disability resulting from an injury (not disease) incurred or aggravated while performing inactive duty training, which includes drill weekends. See 38 U.S.C. §§ 101, 106, 1131 (2012). Notwithstanding the above, the Board notes that the Veteran's service record shows a period of active duty service in the Marine Corps at Camp Lejeune between August 1981 and August 1984. Her service at Camp Lejeune is relevant because, recently, in March 2017, regulations governing claims related to exposure to contaminated water at Camp Lejeune between 1953 and 1987 were amended and eight conditions were named as presumptive diseases for veterans exposed to the contaminated water. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f) (2017). Here, although lupus is not one of the named presumptive conditions, the record does not show that a Camp Lejeune-specific claim development letter was provided to the Veteran pursuant to VBA Manual M21-1, IV.ii.1.I.7.j. Further, during the July 2015 videoconference Board hearing, the Veteran testified that her lupus symptoms began in 1984 and have not stopped. Last, neither the Veteran's private physician nor the May 2016 VA examiner offered an opinion about whether her lupus is associated with her service at Camp Lejeune. As the duty to assist includes providing a medical examination when necessary to make a decision on a claim, in this case a second remand is required for further development so that the Veteran is afforded the opportunity to substantiate her claim on the basis of her service at Camp Lejeune. See 38 C.F.R. § 3.159(c)(4) (2017). Accordingly, the case is REMANDED for the following action: 1. Please provide a Camp Lejeune-specific claim development letter to the Veteran. 2. Obtain a statement from the Veteran regarding her exposure to the contaminated water at Camp Lejeune while serving on active duty in the Marine Corps between August 1981 and August 1984, to include how long she was stationed at Camp Lejeune. 3. With regard to lupus, obtain an addendum clinical opinion as to: a. Is the Veteran's lupus at least as likely as not (50 percent or greater) causally related to her service at Camp Lejeune, to include exposure to the contaminated water? If a supplemental clinical opinion cannot be obtained without a physical examination, then schedule the Veteran for a new VA examination. The clinician is invited to consider pertinent evidence including: i.) the Veteran's lay statements; ii.) the contaminants then-present in the water at Camp Lejeune; iii.) the STRs that reflect that she was stationed at Camp Lejeune during much of her period of service from 1981 to 1984; and iv.) the Veteran's private medical records, to the extent they are made available to the examiner such as in VBMS. 4. After completing the above, 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 claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ M. C. GRAHAM 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) (2017).