Citation Nr: 1807856 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-19 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to May 1980. These matters come before the Board of Veterans' Appeals (Board) from a July 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO denied service connection for an acquired psychiatric disability, characterized as bipolar disorder and depression. In October 2017 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that an acquired psychiatric disability began or worsened during service. He also contends that exposure during service to contaminated drinking water at the U. S. Marine Corps Base at Camp Lejeune, North Carolina, may have caused or contributed to causing acquired psychiatric disability. His service personnel records confirm that he was stationed at Camp Lejeune in 1977 to 1980. The Veteran did not have mental health treatment during service. He has had mental health treatment from at least as early as the mid-1990s. In October 1995, the Veteran's then-wife wrote that from the time she started dating the Veteran, when he was 19 years old (a time when he was in service) he had a nervous condition. In the October 2017 Board hearing, the Veteran reported that while he was in service he began to experience signs of mental illness, such as decreased energy, and feelings of craziness. VA has acknowledged that persons residing or working at Camp Lejeune from August 1953 to December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (Revised) (January 28, 2013) (rescinded due to its incorporation into the M21-1); VBA Manual M21-1, IV.ii.2.C.5.o. In this regard, in the early 1980s, it was discovered that two on-base water-supply systems at Camp Lejeune were contaminated with the volatile organic compounds (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. These water systems served housing, administrative, and recreational facilities, as well as the base hospital. See VBA Training Letter 11-03 (Revised) (November 29, 2011); M21-1, IV.ii.2.C.5.o. The National Academy of Sciences' National Research Council (NRC) published its Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009. This report included a review of studies addressing exposure to TCE and PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. The NRC analysis found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited/suggestive evidence of an association, including 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. During the pendency of this appeal, effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases associated with contaminants present in the water supply at Camp Lejeune from August 1, 1953, to December 31, 1987. See 82 Federal Register 4173 (January 13, 2017). This final rule establishes presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. Specifically, the rulemaking amends 38 C.F.R. §§ 3.307 and 3.309. Id. Psychiatric disorders, however, are not among the listed disorders for which service connection may be presumed based on service at Camp Lejeune. In July 2015, VA psychiatrist W. G. R., M.D., wrote that he treats the Veteran. Dr. R. expressed the opinion that it is possible that some of the Veteran's mental illness and resulting disability could have been caused by his exposure to contaminated drinking water at Camp Lejeune. In October 2017, the Veteran submitted an abstract of a Oregon Institute of Occupational Health Sciences study that found an association correlation between exposure to TCE in the water supply and test scores higher for confusion, depression, and tension. The Veteran's mental illness is not subject to a presumption of service connection based on Camp Lejeune service. Dr. R.'s opinion nonetheless has significance, but his finding that a connection is "possible" is less than VA's approximate balance of positive and negative evidence standard, under 38 U.S.C. § 5107, for giving the benefit of the doubt to the claimant. Therefore the Board is remanding the case to the AOJ to obtain a VA examination with file review and opinion as to the relative likelihood of a connection between his exposure to contaminated water and his current psychiatric disability. As there is lay evidence of mental illness symptoms during service, the examiner should also provide an opinion as to the likelihood of onset of mental illness in service. Accordingly, the case is REMANDED for the following action: (CONTINUED ON NEXT PAGE) 1. Schedule the Veteran for a VA mental disorders examination to address the likely etiology of current psychiatric disability. Provide the Veteran's claims file to the examiner. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner to express, regarding the Veteran's current psychiatric disability, opinion as to whether it is at least as likely as not (a 50 percent or greater likelihood) that the current disability is related to: (a) mental disorder symptoms during service, as recalled by the Veteran and his wife after his service; or (b) exposure to contaminated water during service at Camp Lejeune from 1977 to 1980. Ask the examiner to clearly explain the reasons and bases for each opinion. Then review the expanded record and review the case. If the remanded matters remains denied, provide the Veteran and his representative a supplemental statement of the case, and afford them an opportunity to respond, before returning the file to the Board for further appellate consideration. The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. 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). _________________________________________________ K. PARAKKAL 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).