Citation Nr: 20028023 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 19-04 364 DATE: April 21, 2020 REMANDED Entitlement to service connection for a lung disability, to include as due to in-service exposure to contaminated water while stationed at Camp Lejeune and/or an herbicide agent, is remanded. Entitlement to service connection for a heart disability, to include as due to in-service exposure to contaminated water while stationed at Camp Lejeune and/or an herbicide agent, is remanded. Entitlement to service connection for a disability of the throat, to include the esophagus and thyroid gland, (claimed as an esophageal disability), to include as due to in-service exposure to contaminated water while stationed at Camp Lejeune and/or an herbicide agent, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to in-service exposure to contaminated water while stationed at Camp Lejeune and/or an herbicide agent, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1973 to November 1981; however, he received an “other than honorable” discharge for the period of service from August 1979 to November 1981, and in an undated administrative decision, the Agency of Original Jurisdiction (AOJ) determined that such was deemed to be a “dishonorable” discharge. As such, the Veteran’s character of discharge for the period of service from August 1979 to November 1981 is a bar to benefits from the Department of Veteran’s Affairs (VA), other than for health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. Nonetheless, the Veteran may receive VA benefits based on disabilities incurred during the balance of his active duty. This matter comes to the Board of Veterans’ Appeals (Board) from a January 2017 rating decision by a VA Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the AOJ. The Veteran expressed timely disagreement with this determination, and the present appeal ensued. Characterization of an issue on appeal The Veteran’s initial claim seeking to establish service connection for “an esophagus condition.” In light of the evidence of record showing several disabilities affecting the various structures in anatomical proximity to the esophagus, to include the thyroid gland, the Board has expanded and recharacterized the appealed issue as stated on the title page to more accurately frame the symptoms and underlying disability/disabilities being pursued by the Veteran. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a lung disability, to include as due to in-service exposure to contaminated water while stationed at Camp Lejeune and/or an herbicide agent. 2. Entitlement to service connection for a heart disability, to include as due to in-service exposure to contaminated water while stationed at Camp Lejeune and/or an herbicide agent. 3. Entitlement to service connection for a disability of the throat (claimed as an esophageal or thyroid disability), to include as due to in-service exposure to contaminated water while stationed at Camp Lejeune and/or an herbicide agent. 4. Entitlement to service connection for diabetes mellitus, type II, to include as due to in-service exposure to contaminated water while stationed at Camp Lejeune and/or an herbicide agent. As background, the Veteran contends that his claimed disabilities are due to either in-service exposure to (1) contaminated drinking water while stationed at Camp Lejeune, or (2) an herbicide agent at the Aberdeen Proving Grounds while cleaning military tanks that had returned from the Republic of Vietnam. Regarding the Veteran’s first theory, the Board observes that the Veteran’s personnel records reflect that he was stationed at Camp Lejeune for nearly two years in the 1970’s, and thus, the Veteran is due the presumptions afforded for such exposure provided by 38 C.F.R. §§ 3.307 and 3.309. Accordingly, the Board will consider additional development based on this theory of entitlement. Concerning the Veteran’s second theory, in June 2015, VA has expanded the presumption of in-service exposure to an herbicide agent to members of the Air Force and Air Force Reserves who repaired, maintained, and/or operated, C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam Era. While the Veteran does not contend that this liberalized regulation applies to his case, he argues that underlying facts and reasoning are akin to such. While acknowledging that these situations are congruent, the Board is without the authority to expand or contract the controlling laws based on similarity of circumstances. As the Veteran does not contend in-service exposure to an herbicide agent by any other means, the Board’s directed development will not consider this theory of entitlement. In June 2016, the AOJ contacted the Social Security Administration (SSA) and requested copies of any decision for disability benefits from that Federal Agency, to include the records upon which was based. At the December 2016 VA heart examination, the Veteran confirmed his receipt of disability benefits from the SSA since 2014. The SSA never responded to the AOJ’s June 2016 request, and the AOJ made no further efforts to obtain this evidence prior to certifying the Veteran’s appeal to the Board. On remand, the favorable SSA decision and the evidence upon which it was based must be obtained and associated with the Veteran’s VA file. Further, it appears that the record for review by the Board is incomplete, and proper steps to correct such have not been undertaken. Specifically, aside from the Veteran’s July 1973 entrance examination report, the file only includes service treatment records for his period of active duty from August 1979 to November 1981; however, as discussed above, he cannot receive VA benefits based on this period of active duty. The AOJ notified the Veteran of this in a November 2016 letter; however, the record is devoid of a Formal Finding of Unavailability of the remainder of the Veteran’s service treatment records or further actions to seek and/or obtain such. Accordingly, a remand is necessary to ensure that the proper actions under the law are taken in obtaining these records. Downstream from the above deficiency, the Board notes that, in providing medical opinions unfavorable to the Veteran’s appeal, the December 2016 VA examiner cited to a lack of evidence in the Veteran’s service treatment records confirming an in-service and/or pre-existing heart disability, to include symptoms of such. Under the controlling laws, this opinion should not have been requested or rendered until the Veteran’s service treatment records were obtained or found to be unavailable for review. Further, the VA examiner did not address whether the Veteran’s heart disabilities were at least as likely as not the result of his presumed exposure to contaminated water while stationed at Camp Lejeune. As such, the December 2016 VA heart examination and the offered nexus opinions are inadequate for the purpose of readjudicating the Veteran’s appeal. On remand, additional opinions must be requested. Also, the record before the Board is replete with diagnoses of diabetes mellitus, type II, and disabilities of the lungs and throat, to include the esophagus and thyroid gland. In light of the Veteran’s contention that these disabilities were caused by his presumed in-service exposure to contaminated drinking water while stationed at Camp Lejeune, the Board concludes that the low threshold for obtaining medical opinions concerning the nature and etiology of these disabilities has been met. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lastly, so that the examiner(s) is/are fully informed of the Veteran’s complete disability picture, updated VA and private treatment records must be sought, obtained, and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. The AOJ must contact the Veteran and request that he complete a release for any post-service treatment records that are outstanding and pertinent to the issues remanded by the Board that are not already part of the record. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran’s file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must contact the Records Management Center (RMC), National Personnel Records Center (NPRC), the Department of the Navy, and any other appropriate repository, to request a complete copy of the Veteran’s service treatment records for the period from August 1973 to August 1979. All efforts in obtaining these records must be memorialized in the file, to include any replies (negative or otherwise) received. If these records are found to have been lost or otherwise unavailable for review, the AOJ must follow the proper procedures under the controlling laws concerning lost and/or destroyed records, to include issuing a formal finding of unavailability of such. 4. The AOJ must obtain and associate with the claims file any decision concerning disability benefits from the Social Security Administration (SSA), to include the treatment records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 5. Thereafter, the AOJ must transfer the Veteran’s complete electronic file to an appropriate VA clinician to determine the nature and etiology of the Veteran’s claimed disabilities. After a review of the complete record, the examiner is requested to address the following: a. Identify or rule out a diagnosis of diabetes mellitus, type II, during the appeal period (since September 2014). b. Identify all disabilities during the appeal period (since September 2014) relating to the Veteran’s: i. Lungs; ii. Heart; iii. Throat (including the esophagus and thyroid glands). c. For each disability identified in parts (a) and (b), provide an opinion concerning whether such is at least as likely as not proximately due to or the result of his active duty from August 1973 to August 1979, to include his presumed in-service exposure to contaminated drinking water while stationed at Camp Lejeune. *In addressing the above, the examiner is on notice that any disability’s exclusion from the list of diseases presumed by VA to be associated with in-service exposure to contaminated drinking water while stationed at Camp Lejeune will NOT suffice this opinion request. As such, the examiner is asked to discuss the IOM’s findings and provide an opinion concerning whether the Veteran’s identified disabilities are 50 percent or more likely related to his in-service exposure based on known medical principles. (Continued on the next page)   The examiner should provide a complete rationale for all opinions rendered. The examiner should specifically discuss the pertinent evidence of record, to include the Veteran’s assertions described in this remand. If the examiner finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. *If the examiner determines that testing and/or examination of the Veteran is necessary to address the above remand directives, such should be scheduled, and the Veteran must be provided notice of the time and place to report. K. SOSNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.