Citation Nr: 1820294 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-22 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for neurobehavioral disorders, to include migraines, to include as due to exposure to contaminated water at Camp Lejeune. 2. Entitlement to service connection for an esophageal disorder to include as due to exposure to contaminated water at Camp Lejeune and as due to the Veteran's service-connected right knee disorder. 3. Entitlement to service connection for a stroke disorder or residuals thereof, to include as due to exposure to contaminated water at Camp Lejeune. 4. Entitlement to an evaluation in excess of 20 percent for a right knee disorder. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to December 1989. He had additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Under Rice v. Shinseki the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). This issue has been separately characterized in the issues above in accordance with that decision. The Veteran testified before the Board at a September 2016 hearing at the RO in Louisville, Kentucky. 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 A review of the record has revealed that a substantial number of the Veteran's service treatment records are illegible. These records do not contain a "Best Copy" stamp indicating that the original paper records were also illegible. On remand, the RO must assist in having the illegible service treatment records rescanned to allow for consideration by the Board. If legible copies cannot be obtained, the AOJ should request that the Veteran submit any copies he has in his possession. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs), which chemicals were primarily "perchloroethylene [(PCE)], trichloroethylene [(TCE)], benzene, and vinyl chloride." 78 Fed. Reg. 55,671, 55, 672 (Sept. 11, 2013). 78 Fed. Reg. 55,671 , 55, 672 (Sept. 11, 2013); see Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011); VBA Training Letter 11-03 (Revised) (November 29, 2011) (rescinded due to its incorporation into the M21-1 as part of the "Live Manual" project). Presently, the claims file does not include a VA examination which addresses whether the Veteran's potential exposure to contaminated drinking water resulted in the development of his claimed disorders. Further, the Veteran's service treatment records include symptoms of dizziness and stomach aches. Thus, direct service connection may be indicated. The Veteran should be afforded VA examinations to determine the etiology of his claimed neurobehavioral, esophageal, and stroke disorders. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, in an April 2008 statement, the Veteran indicated that his use of pain pills for his right knee disorder aggravated an esophageal condition. As such, the examiner is asked to address this issue, and the Veteran should be provided VCAA notice as to secondary service connection. 38 C.F.R. § § 3.159. Further, regarding the Veteran's claim for an increased rating for his service-connected knee disorder, the Board finds that a remand is necessary to provide additional examinations in light of the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that 38 C.F.R. § 4.59 requires VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if appropriate, with range of motion measurements of an opposite undamaged joint. Unfortunately, the examination report does not meet the specifications of Correia. Therefore, an additional examination is necessary under 38 C.F.R. § 3.159 (c)(4) to ensure compliance with the decision in Correia and VA's duty to assist. Further, the remanded claim for the Veteran's right knee disorder is inextricably intertwined with, the issue of entitlement to service connection for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Thus the issue of entitlement to a TDIU must also be remanded in lieu of the requested development. Finally, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice for the claim for service connection for an esophageal disorder on a secondary service connection basis. Provide the Veteran the opportunity to identify any pertinent outstanding treatment records, both VA and private, for his neurobehavioral, esophageal, stroke and right knee disorders. The AOJ should secure any necessary authorizations. The Veteran shall be informed of his right to request a hearing in order to identify what evidence is necessary to substantiate his claim. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Take appropriate steps to locate the Veteran's original service treatment records and properly scan them into the electronic claims file. It should be noted whether these are the best possible copies. 3. After associating all newly acquired records with the claims file, schedule the Veteran for the appropriate VA examinations to determine: a.) Whether it is at least as likely as not (50 percent or greater) that any neurobehavioral disorder found is related to, or aggravated by his active military service; b.) Whether it is at least as likely as not (50 percent or greater) that the Veteran's any neurobehavioral disorder found is related to exposure to contaminated water at Camp Lejeune. c) Whether it is at least as likely as not (50 percent or greater) that any esophageal disorder found is related to, or aggravated by his active military service; d.) Whether it is at least as likely as not (50 percent or greater) that the Veteran's any esophageal disorder found is related to exposure to contaminated water at Camp Lejeune. e.) Whether it is at least as likely as not (50 percent or greater that the Veteran's esophageal disorder found is it is at least as likely as not (a 50 percent probability or greater) proximately caused or aggravated by his right knee disorder treatment. f.) Whether it is at least as likely as not (50 percent or greater) that any stroke disorder found is related to, or aggravated by his active military service; g.) Whether it is at least as likely as not (50 percent or greater) that the Veteran's any stroke disorder found is related to exposure to contaminated water at Camp Lejeune. The examiner(s) is requested to provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be mad 4. Schedule the Veteran for a new VA examination to determine the current nature and severity of his right knee disorder. The right knee joint must be tested for pain on both active and passive range of motion with weight bearing and nonweight bearing, and the right knee should be compared with the non-service connected left knee, if possible. See Correia v. McDonald, 28 Vet. App. 158 (2016). 5. Upon completion of the foregoing, readjudicate the Veteran's claims, to include the TDIU claim based on a review of the entire evidentiary record. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ M.H. HAWLEY 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).