Citation Nr: 1801262 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-28 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for colon cancer to include as secondary to exposure to contaminated water at Camp Lejeune. 2. Entitlement to service connection for Barrett's esophagus, to include as secondary to exposure to contaminated water at Camp Lejeune. 3. Entitlement to service connection for osteoporosis to include as secondary to exposure to contaminated water at Camp Lejeune. REPRESENTATION Veteran represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1957 to January 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky that denied service connection for Barrett's esophagus, colon cancer, diverculitis, a stomach ulcer, a skin condition, and for osteoporosis. The Veteran disagreed and perfected an appeal of only the decisions pertaining to Barrett's esophagus, colon cancer, and osteoporosis. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board has conducted a preliminary review of these matters, but has found that further evidentiary development is warranted before final decisions may be reached, for the reasons that follow below. Colon Cancer The VA examination and medical opinion provided to the Veteran in July 2014 is, in part, inadequate. The VA examiner in July 2014 did not completely review the claims file before providing a negative nexus opinion, therefore a new exam is warranted. Specifically, private treatment records from Gastroenterology Consultants were not reviewed. In fact, the examiner commented, "(the Veteran) was diagnosed with benign colon polyps 9/2013 apparently at an outside facility in the past, however these medical records were not supplied and medical records with respect to this condition were not available in VBMS at the time of the request of this evaluation." See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). See 38 C.F.R. §§ 3.159(c)(2), (c)(3) (2017). Barrett's Esophagus and Osteoporosis The Veteran has a present diagnosis of Barrett's esophagus and osteoporosis per private treatment reports of record. He asserts that these disabilities are the result of exposure to contaminated water while being stationed at Camp Lejeune. VA has conceded that the Veteran was stationed at Camp Lejeune and, thus, was exposed to contaminated water during active service. In this regard, the Board notes that VBA has provided that if a Camp Lejeune veteran is determined to have manifestations of any of the diseases listed in 38 C.F.R. § 17.400 , he/she would entitlement to would a VA medical examination and opinion regarding its relationship to Camp Lejeune service. See M21-1 "Live Manual," part IV, subpt. ii, ch. 2, sec.C.5.p. VBA stated specifically, however, that "this is not an exclusive list" and "[m]edical evidence provided by a Veteran indicating that some other disease may be related to the known water contaminants would also be sufficient to initiate a VA examination." VBA Training Letter 11-03. In this matter, the Veteran has not been provided a VA examination to obtain medical opinions as to the etiology of his diagnosed Barrett's esophagus and osteoporosis. He has contended that he has had symptoms related to his Barrett's esophagus and osteoporosis since he drank the contaminated water in service, and has referenced online articles related to the contaminated water at Camp Lejeune. Private treatment records show his reports of contaminated water exposure. VA's duty to assist a claimant includes obtaining a medical opinion whenever such an opinion is necessary to substantiate the claim. 38 U.S.C. § 510A. Thus, VA examinations are warranted to determine the etiology of the Veteran Barrett's esophagus and osteoporosis, inclusive of exposure to contaminated water at Camp Lejeune. Accordingly, the AOJ should obtain a medical opinion to determine whether it is at least as likely as not that the Veteran's Barrett's esophagus and osteoporosis is related to service, to include exposure to water contaminants at Camp Lejeune. 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. Obtain all outstanding private and VA treatment records related to the Veteran's claimed colon cancer, Barrett's esophagus, and osteoporosis. 2. Forward the Veteran's claims file to an appropriate examiner for a supplemental opinion as to the etiology of the Veteran's colon cancer-to include consideration as to whether his colon cancer is the result of his service at Camp Lejeune. It is left to the examiner's discretion whether to reexamine the Veteran. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. b. The examiner must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to private treatment records Gastroenterology Consultants who noted a history of colon cancer in 2001. c. All indicated tests and studies must be performed. d. The examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e. The examiner must provide an opinion as to whether the Veteran's colon cancer is related to his active duty service. f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. Stated alternatively, if the examiner is unable to express an opinion about the source of the Veteran's colon cancer without speculation, he or she must state detailed reasons for this inability. The law mandates that VA may only use competent medical evidence in these determinations, and not its own non-medically trained experience. 2. Forward the Veteran's claims file to an appropriate examiner for a supplemental opinion as to the etiology of the Veteran's Barrett's esophagus-to include consideration as to whether his Barrett's esophagus is the result of his service at Camp Lejeune. It is left to the examiner's discretion whether to reexamine the Veteran. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. b. The examiner must review all medical evidence associated with the claims file. c. All indicated tests and studies must be performed. d. The examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e. The examiner must provide an opinion as to whether the Veteran's Barrett's esophagus is related to his active duty service. f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. Stated alternatively, if the examiner is unable to express an opinion about the source of the Veteran's Barrett's esophagus without speculation, he or she must state detailed reasons for this inability. The law mandates that VA may only use competent medical evidence in these determinations, and not its own non-medically trained experience. 3. Forward the Veteran's claims file to an appropriate examiner for a supplemental opinion as to the etiology of the Veteran's osteoporosis-to include consideration as to whether his osteoporosis is the result of his service at Camp Lejeune. It is left to the examiner's discretion whether to reexamine the Veteran. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. b. The examiner must review all medical evidence associated with the claims file. c. All indicated tests and studies must be performed. d. The examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e. The examiner must provide an opinion as to whether the Veteran's osteoporosis is related to his active duty service. f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. Stated alternatively, if the examiner is unable to express an opinion about the source of the Veteran's osteoporosis without speculation, he or she must state detailed reasons for this inability. The law mandates that VA may only use competent medical evidence in these determinations, and not its own non-medically trained experience. 4. After completing the above actions and any other development as may be indicated, readjudicate the Veteran's claims on appeal in light of all the evidence of record. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the appellant and her representative. After the appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).