Citation Nr: 1802814 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-34 144 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for colon cancer, status post right hemicolectomy with ileocolonic anastomosis to include as due to contaminated water exposure at Camp Lejeune. 2. Entitlement to service connection for diabetes mellitus to include as due to contaminated water exposure at Camp Lejeune. 3. Entitlement to service connection for kidney disease to include as due to contaminated water exposure at Camp Lejeune and to include as secondary to diabetes mellitus. 4. Entitlement to service connection for stroke (deep brain stimulator) to include as secondary to diabetes mellitus. 5. Entitlement to service connection for hypertension to include as secondary to diabetes mellitus. 6. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus. 7. Entitlement to special monthly compensation based on loss of use of a creative organ. 8. Entitlement to service connection for peripheral vascular disease of the right lower extremity claimed as poor circulation, to include as secondary to diabetes mellitus. 9. Entitlement to service connection for peripheral vascular disease of the left lower extremity claimed as poor circulation, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to April 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2016, the Veteran testified via video conference from the Indianapolis, Indiana RO. The Indianapolis, Indiana RO certified this case to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for disabilities he asserts are associated with exposure to contaminated water while stationed at Camp Lejeune. He was stationed at Camp Lejeune including from approximately December 1972 to June 1973 and December 1973 to April 1974. The Veteran is presumed to have been exposed to contaminants during his military service at Camp Lejeune. He asserts that his colon cancer, diabetes mellitus, and kidney disease are all due to this presumed exposure. He also maintains that his kidney disease, stroke residuals, hypertension, erectile dysfunction, and peripheral vascular disease, are secondary to his diabetes mellitus. VA medical opinions have been provided, but further clarification is needed. Since the Veteran has made claims involving contamination at Camp Lejeune, his claim was handled by the Louisville, Kentucky RO. A medical opinion was obtained in accordance with directives for processing these cases which included securing an examination and opinion from a Subject Matter Expert (SME). Although the examination did not specifically indicate an SME designation, the Louisville, Kentucky RO indicated that the examination report was an SME evaluation in the July 2013 rating decision on appeal. The November 15, 2012 SME evaluation determined that the Veteran's diabetes mellitus and colon cancer were not related to his service because there was no known association with solvent exposure and these diseases. However, there was no further discussion concerning the Veteran's particular case, including his medical history, to explain why his specific diagnosis of diabetes mellitus and colon cancer was unrelated to exposure to solvents at Camp Lejeune. The Board is aware that there is no presumptive relationship between diabetes mellitus, kidney disease, and colon cancer to exposures to chemicals used at Camp Lejeune; but this does not preclude establishing a direct relationship based on the medical evidence. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Moreover, in an October 2012 letter, a VA nephrologist, Dr. R.B., stated that he had been involved in the Veteran's care since 2009. He said that the Veteran's kidney disease was related to his diabetes mellitus. This same physician, in January 2017, also provided a positive medical nexus opinion. At that time, he noted that the Veteran had end-stage renal disease due to diabetes mellitus. It was noted that there was no family history of diabetes mellitus and the Veteran was not obese, which were two risk factors for diabetes. The VA doctor also cited to a peer review journal on Toxicology and Industrial Health, which noted that benzene was associated with increased incidence of diabetes mellitus and kidney disease. Thus, the VA nephrologist determined that since he now knew that benzene was involved in the contamination, this contamination led to his diabetes mellitus and kidney injury, and then related to the eventual kidney failure. The Board notes that the opinion of the SME is probative on the evaluation of disabilities related to contaminated water at Camp Lejeune; however, as noted, there are deficits in that opinion and, since it was provided five years ago, there appear to have been additional informational development with regard to the contaminants at Camp Lejeune. Moreover, a VA nephrologist has submitted a conflicting opinion. As such, an addendum is needed to clarify this matter. The issue of entitlement to special monthly compensation based on loss of use of a creative organ is deferred pending the resolution of the other issues. 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. This case should be returned to the Louisville, Kentucky RO for development. 2. Obtain a medical addendum from the SME who provided the November 15, 2012 SME evaluation, or if unavailable, from another SME. The SME should review the record and answer the following inquiries: (A) The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's colon cancer, diabetes mellitus, and/or kidney disease was caused by his presumed exposure to contaminants at Camp Lejeune, including benzene. While there is no presumptive connection between these diseases and the exposures at Camp Lejeune, the SME should provide a medical opinion regarding any direct relationship based on the Veteran's specific medical history. The SME should specifically address the January 2017 medical opinion of the Veteran's treating VA nephrologist. (B) The SME should also opine as to whether the Veteran's colon cancer, diabetes mellitus, and/or kidney disease otherwise had their clinical onset during service or are related to any in-service disease, event, or injury. (C) The SME should also opine as to whether the Veteran's stroke, hypertension, erectile dysfunction, and peripheral vascular disease of the lower extremities had their clinical onset during service; if the stroke or hypertension were manifest within one year of service, or if any of these disabilities are otherwise related to any in-service disease, event, or injury. (D) The SME should also opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's stroke, hypertension, erectile dysfunction, and peripheral vascular disease of the lower extremities are proximately due to, or the result of, his diabetes mellitus. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's stroke, hypertension, erectile dysfunction, and peripheral vascular disease of the lower extremities are permanently aggravated by the Veteran's diabetes mellitus. The SME should provide a complete rationale for all opinions expressed and conclusions reached. 3. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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). S. L. Kennedy 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).