Citation Nr: 1829062 Decision Date: 05/22/18 Archive Date: 06/05/18 DOCKET NO. 15-12 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to service connection for hypertension, to include as due to herbicide exposure and/or exposure to contaminated water at Camp Lejeune. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania (Agency of Original Jurisdiction (AOJ)). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Following the most recent adjudication of the issues on appeal, additional medical records, including treatment records and VA examination reports, were added to the Veteran's claims file. At the October 2017 hearing, the Veteran indicated his preference to not waive consideration of this new evidence by the RO. After review of the evidence, the Board finds that the additional records provide new evidence that is pertinent to the Veteran's appeal. As the new evidence has not been previously considered by the RO, a remand to have the RO consider this evidence in the first instance is necessary. 38 C.F.R. § 20.1304 (2017). With respect to the service connection claim for hypertension, at the October 2017 hearing, the Veteran raised possible service connection theories that the Veteran's Vietnam service may have exposed him to herbicides and/or that his duty station at Camp Lejeune may have exposed him to contaminated water. The Veteran is presumed to have been exposed to herbicides in service as his service records reflect that he served in the Republic of Vietnam during the Vietnam War Era. Current VA regulations do not provide hypertension as a presumptive disability associated with herbicide exposure. However, the National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). A more recent study, on a study cohort of Army Chemical Corp Veterans who likely had above average exposure, found an association between hypertension and herbicide exposure. See http://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. The Board observes that VA has developed special adjudicatory procedures for Veterans stationed at Camp Lejeune. See M21-1. III.iii.2.E.7.a; M21-1 Part IV.ii.1.I. Notably, VA recently amended its adjudication regulations regarding presumptive service connection, adding certain diseases associated with contaminants present in the base water supply at Camp Lejeune from August 1, 1953, to December 31, 1987. These diseases included adult leukemia; aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, Non-Hodgkin's lymphoma, and Parkinson's disease. These presumptions, however, do not preclude establishing service connection for any other disease/disorder based upon direct service connection principles. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As there is evidence indicating that there may be an association between hypertension and herbicide exposure, a VA opinion must be obtained on this matter. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate all pertinent VA medical records not yet associated with the Veteran's claims file. 2. Schedule the Veteran for a VA examination to determine if he has hypertension that is related to service or herbicide exposure in service. Access to the electronic claims files must be made available to the examiner for review. After examination and review of the record, the examiner must provide an opinion on the following: (a) Whether it is at least as likely as not that hypertension had its onset in service or was caused by service, to include as due to herbicide exposure while serving in Vietnam and to include as due to contaminated water at Camp Lejeune. (b) Whether it is at least as likely as not that hypertension was caused or aggravated beyond the normal progress of the disorder by any service-connected disability, to include diabetes mellitus, type II. A complete, well-reasoned rationale must be provided for all opinions offered. The examiner must reconcile any opinion with the lay statements and testimony of the Veteran. 3. After completing all indicated development, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. 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. _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).