Citation Nr: 20005328 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 16-27 466A DATE: January 22, 2020 REMANDED Entitlement to service connection for a cerebrovascular accident (claimed as stroke and paralyzed left side) is remanded. Entitlement to service connection for seizures is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S Navy from July 1984 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a cerebrovascular accident (claimed as stroke and paralyzed left side) is remanded. 2. Entitlement to service connection for seizures is remanded. Remand is required for a medical examination. The Veteran has diagnoses of, at least, a seizure disorder and a cerebrovascular accident with residual left side hemiplegia. See, e.g., VA treatment records (6/1/2010, 6/17/2010, 3/5/2018). He contends his disabilities are related to exposure to contaminants in the water at Camp Lejeune, North Carolina. Review of his military personnel records shows that he had multiple periods of service in excess of 30 days at Camp Lejeune during the relevant presumptive period. See 38 C.F.R. § 3.307(a)(7). In the absence of any affirmative evidence to the contrary, the Board finds that the Veteran was exposed to contaminants in the water at Camp Lejeune during his active service. “[C]ontaminants in the was supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride.” Id. at § 3.307(a)(7)(i). In June 2016, the Veteran submitted a website printout from https://www.VA.gov which discussed Camp Lejeune water contamination and benefits. The printout highlighted that eligibility for VA health care is available for veterans with such exposure and who are diagnosed with certain enumerated qualifying health conditions. Those conditions included “neurobehavioral effects,” which the Veteran contends describes his disabilities. The Veteran’s June 2016 submission also included a printout of Review of VA Clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation; Committee on the Review of Clinical Guidance for the Care of Health Conditions Identified by the Camp Lejeune Legislation; Board on the Health of Select Populations; Institute of Medicine. Washington (DC): National Academies Press (US); 2015 Mar 26 (available at https://www.ncbi.nlm.nih.gov/books/NBK284982/). This printout highlighted medical studies on contaminated drinking water at Camp Lejeune that found there was limited/suggestive evidence of an association between exposure to mixed solvents and neurobehavioral effects. The Board notes that 38 U.S.C. § 1710(e)(1)(F) provides that “a veteran who served on active duty in the Armed Forces at Camp Lejeune, North Carolina, for not fewer than 30 days during the period beginning on August 1, 1953, and ending on December 31, 1987, is eligible for hospital care and medical services under subsection (a)(2)(F) for any of the following illnesses or conditions.,” which includes neurobehavioral effects. The statute, however, includes a qualifying statement indicating that eligibility for hospital care and medical services is available “notwithstanding that there is insufficient medical evidence to conclude that such illnesses or conditions are attributable to such service.” Id. There is some tension with this eligibility for VA health benefits because 38 C.F.R. § 3.309(f) provides for presumptive service connection for certain enumerated diseases associated with exposure to water contaminants at Camp Lejeune and neurobehavioral effects are not included in that list. In sum, for the same exposure, a statute provides for VA health benefits for a condition but VA regulations do not provide presumptive service connection for the same condition. Nonetheless, the Board finds that the Veteran’s submission and the inclusion of neurobehavioral effects in section 1710(e)(1)(F) provides an indication that there may be a nexus between the Veteran’s current diagnoses and his active service, to include the presumed exposure to water contaminants at Camp Lejeune. While presumptive service connection under 38 C.F.R. § 3.309(f) is not warranted, a nexus to service may still be established on a direct basis. Remand is required for a medical examination and opinion. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his seizures and residuals of a cerebrovascular accident. If possible, the examination should be conducted by a neurologist. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with conducting the examination. The examiner is asked to provide responses to the following: A) Identify the Veteran’s current related diagnoses. If any condition is ruled out, it should be explained why that is so. B) For each diagnosed disability, is it at least as likely as not (a 50 percent or greater probability) the condition was incurred in, or is otherwise related to, the Veteran’s active service? For the purposes of this opinion, the examiner should presume the Veteran was exposed to water contaminants during his period of service at Camp Lejeune, North Carolina. VA health benefits are available in certain instances for Camp Lejeune veterans who have “neurobehavioral effects.” That same condition is not, however, listed under 38 C.F.R. § 3.309(f) as eligible for presumptive service connection due to the same exposure. A negative opinion cannot be predicated on the exclusion of “neurobehavioral effects” from § 3.309(f). The examiner must consider and discuss the Veteran’s June 2016 submission of a printout from the VA.gov website and from Review of VA Clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation; Committee on the Review of Clinical Guidance for the Care of Health Conditions Identified by the Camp Lejeune Legislation; Board on the Health of Select Populations; Institute of Medicine. Washington (DC): National Academies Press (US); 2015 Mar 26 (available at https://www.ncbi.nlm.nih.gov/books/NBK284982/). The examiner is advised that the latter source includes discussion of medical studies on contaminated drinking water at Camp Lejeune that found there was limited/suggestive evidence of an association between exposure to mixed solvents and neurobehavioral effects. A complete rationale must be provided for all opinions expressed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mike A. Sobiecki, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.