Citation Nr: 21000094 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-18 675A DATE: January 4, 2021 REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a liver disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to August 1983.These matters originate from an appeal of an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board of Veterans’ Appeals (Board) in February 2018, at which time the Veteran’s claims of service connection for a heart disability and a liver disability were denied. In a March 2020 memorandum decision, the United States Court of Appeals for Veterans Claims (CAVC) vacated the Board’s February 2018 decision and remanded the Veteran’s claims back to the Board. The Veteran contends that he suffers from heart and liver disabilities resulting from his exposure to contaminated drinking water at Camp Lejeune. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 U.S.C. § 1110; See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Board finds that the Veteran has current diagnoses of a heart disability and a liver disability. A May 2010 private treatment note reflects diagnoses of cardiomyopathy and recurrent ventricular arrythmias. May 2009 and November 2009 private treatment notes reflect a diagnosis of left hepatic hemangioma with three small cysts. The Board concludes that the “current disability” criterion for entitlement to service connection is satisfied with respect to both the Veteran’s heart and liver disability claims. The Board finds that the Veteran experienced an in service “injury” for the purposes of 38 U.S.C. § 1110 and 38 C.F.R. § 3.303, in the form of exposure to contaminated drinking water while stationed at Camp Lejeune for a period of greater than 30 days between August 1, 1953 and December 31, 1987. A Veteran who had no less than 30 days of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987, is presumed to have been exposed during such service to the following contaminants in the water supply at Camp Lejeune: trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride. 38 C.F.R. § 3.307 At his August 2017 Board hearing the Veteran testified that he was stationed at Camp Lejeune from 1979 to 1983. In its March 2020 decision, CAVC found that the Veteran was stationed at Camp Lejeune from 1973 to 1983. The Board now notes that the Veteran’s service treatment records (STRs) and his military personnel records reflect that he was stationed at Camp Lejeune from at least March 1982 to February 1983. Thus, the Board concludes that the provisions of 38 C.F.R. § 3.307 are satisfied and the Veteran is presumed to have been exposed to contaminants in the water at Camp Lejeune during his active service, satisfying the in-service injury criterion for entitlement to service connection with respect to both his heart and liver disability claims. The Board also notes the Veteran’s contention, reflected in an April 2012 statement in support of claim, that he was exposed to additional hazardous chemicals as part of the working conditions associated with his military occupational specialty (MOS): 3521 (organizational automotive mechanic). As discussed further below, the Board concludes that additional development is necessary to verify the Veteran’s claimed exposure to hazardous chemicals other than those in the contaminated drinking water at Camp Lejeune. Also at issue is the third criterion for entitlement to service connection: whether there is medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.309(f) provides that the following disabilities shall be presumed to be service connected in the context of Veterans exposed to contaminated water at Camp Lejeune: kidney cancer; liver cancer; non-hodgkin’s lymphoma; adult leukemia; multiple myeloma; Parkinson’s disease; aplastic anemia and other myelodysplastic syndromes; bladder cancer. The Veteran has not been diagnosed with any of the disabilities identified in 38 C.F.R. § 3.309(f), and so no presumption may substitute for the “nexus” criterion. However, the Veteran may still establish service connection by demonstrating direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120(2007). As discussed further below, the Board finds that remand is required to obtain VA medical opinions as to the etiology of the Veteran’s heart and liver disabilities. Further, the Board finds that additional development is required with respect to the Veteran’s claims of exposure to hazardous chemicals in the course of his duties as an automotive mechanic. The RO should attempt to verify the Veteran’s claims of exposure to hazardous material as an automotive mechanic, and obtain medical opinions as to any causal relationship between such chemicals and his heart and liver disabilities. 1. Entitlement to service connection for a heart disability is remanded. The Veteran has submitted a May 2010 letter from a private treating provider, Dr. B., as to the origin of his heart disability. Dr. B.’s full opinion reads as follows: “I am a board certified cardiologist. [The Veteran] is under my care. He states that from 1979 through 1983 he was stationed at Camp Lejeune, North Carolina and was exposed to toxins in the water. He has a known cardiomyopathy and has recurrent ventricular arrythmia’s [and] and AICD device is in place. It is possible and likely that the current cardiac problems are related to his toxin exposure. I am writing this letter at his request. Records are available upon request.” The Board finds that Dr. B.’s May 2010 opinion is insufficient on its own to support the contention that the Veteran’s heart disability is the result of his exposure to contaminated water at Camp Lejeune. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (U.S. 2007). It is unclear from Dr. B.’s May 2010 opinion whether he actually knows the specific toxins the Veteran is claiming exposure to, or whether he is simply repeating a statement by the Veteran that he was exposed to toxins, generally, at Camp Lejeune. Thus, the factual basis underlying Dr. B.’s opinion is unclear. Further, Dr. B. offers no supporting rationale, only a conclusory statement. A VA examination was obtained in January 2013. The VA examiner stated that it was more likely than not that the Veteran’s heart disability is the result of a history of alcohol abuse. The Board finds that this opinion, too, is inadequate. The evidentiary basis for concluding that the Veteran has a history of alcohol abuse is unclear. The January 2013 VA examiner referenced a documentation of such history by the Veteran’s treating providers. However, the Board now finds that such documentation is inconsistent and ambiguous. The Veteran has submitted medical records from various private treating providers. Together, these records reflect that the Veteran was admitted to the Lawrence General Hospital (LGH) emergency department on December 24, 2008, following a syncopal episode; records from the emergency department visit itself are not currently associated with the claims file. Following this emergency department admission, the Veteran was referred to Dr. B. for cardiac follow up and care. In a December 2008 examination note, Dr. B. stated that the Veteran “has a history of excessive alcohol use.” The source, and exact meaning, of this information is unclear. No qualification or quantification of how long a history, or what constitutes “excessive” alcohol use is documented. In February 2009 Dr. B. wrote that the Veteran “has had several drinks in the evening and presented to LGH on 12/24/08 after a true syncopal event.” This note is ambiguous as to whether Dr. B. is referring to a single incident of having several drinks in December 2008, or something else. In the same note, Dr. B. wrote that the Veteran had “markedly reduced his . . . alcohol intake and feels subjectively better.” Dr. B. assessed the Veteran as having “cardiomyopathy question of secondary to alcohol abuse subjectively improved.” In a subsequent February 2009 note Dr. B. again writes “[h]istory of several alcoholic drinks per evening and had a true syncopal event on 12/24/2008” and “has a hx of alcohol use. He drinks several drinks per evening.” It is thus unclear whether Dr. B. is reproducing previous notes as to alcohol intake, or whether “several drinks per evening” reflects a “markedly reduced” level of alcohol consumption. In April 2009, another consulting cardiology provider wrote, to Dr. B., that the Veteran had: a “history of excessive alcohol use who was brought by ambulance to [LGH] on Christmas Eve after a syncopal episode . . .[h]e had 2-3 alcoholic beverages . . .” The April 2009 consulting provider’s note that the Veteran has a “history of excessive alcohol use” appears to mirror the language used by Dr. B., whose notes and records appear to have informed the April 2009 consultation. The only specific quantification of the Veteran’s alcohol consumption is the April 2009 report that the Veteran had 2 – 3 alcoholic beverages on the night of his emergency December 2008 emergency department admission. Dr. B.’s assessment of the relationship between the Veteran’s alcohol use and his cardiomyopathy was that it was a “question,” which is not sufficiently conclusive to permit VA to determine that the Veteran’s heart disability is “at least as likely as not” attributable to alcohol use. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). Further, the probative value of Dr. B.’s initial assessment of the Veteran’s cardiomyopathy as alcohol related is undermined by his later assessment of the disability being “possibly and likely” attributable to toxin exposure. Thus, to the extent that the January 2013 VA examiner relied on the documentation by treating providers of a purported history of alcohol abuse and/or treating providers’ opinion that the Veteran’s heart disability is the result of alcohol abuse, the opinion is not based on factually accurate, fully articulated, sound reasoning. On remand, a VA medical opinion that adequately addresses the etiology of the Veteran’s heart disability should be obtained. 2. Entitlement to service connection for a liver disability is remanded. In a June 2010 consultation note, Dr. K., a private treating provider, stated as follows: “I do not see any hematologic issues or anything suspicious of cancer. Conceivable that exposure to unknown toxins may have affected liver function studies in past and perhaps contributed to cardiomyopathy, but impossible to tell with any degree of certainty not knowing the nature of the chemical.” As noted above, the only liver disability for which a nexus with contaminated water at Camp Lejeune may be presumed is liver cancer. 38 C.F.R. § 3.309(f). The Board concludes that the June 2010 consultation note concerning the relationship between toxin exposure and the Veteran’s current liver disability is not sufficiently conclusive to permit VA to determine that the Veteran’s liver disability is “at least as likely as not” attributable to exposure to toxic materials. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). Moreover, Dr. K. notes that their opinion is not informed by any actual knowledge of the nature of the toxic chemicals to which the Veteran was claiming exposure. The Veteran was afforded a VA examination in January 2013 to address the relationship between his exposure to contaminated water at Camp Lejeune and his liver disability. The January 2013 VA examiner’s full opinion consists of the following statement: “[The Veteran’s] liver findings are not listed as one of the expected outcomes after solvent exposure and therefore, it is less likely than not that the Veteran’s current diagnosis of hemangioma including cysts is related to the exposure to contaminated water while stationed at Camp Lejeune.” The above opinion is inadequate for adjudicative purposes. The January 2013 VA examiner’s opinion consists only of comparing the Veteran’s diagnosis to the list of presumptive conditions outlined in 38 C.F.R. § 3.309(f). The Veteran is entitled to prove entitlement to service connection on a theory of direct causation, as well as presumptive entitlement. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120(2007). VA has a duty to assist the Veteran, and where a VA examination is obtained, it must be an adequate one. 38 U.S.C. § 5103A; See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Ask the Veteran to execute a VA form 21-4142 for all providers he has seen for his heart and liver disabilities. Obtain medical records from all providers identified by the Veteran in his executed VA Form 21-4142 and obtain all available VA treatment records since October 2017. Ensure that all records obtained pursuant to this remand are associated with the claims file. 2. The RO should attempt to verify the Veteran’s alleged exposure to hazardous chemicals in the course of his duties as an automotive mechanic. Such attempts should include, but are not limited to: submitting requests to the Modern Military Branch National Archives Administration and Joint Service Records Research Center, and/or any other appropriate repository, to obtain relevant records related to exposure to hazardous chemicals in the course of duty as an automotive mechanic 3. Following the completion of remand directives above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his heart and liver disabilities, to include cardiomyopathy and recurrent ventricular arrythmias and hemangioma with cysts. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. For each diagnosed heart and/or liver disability, please respond to the following: (Continued on the next page)   (a.) Whether any identified heart and/or liver disabilities, to include cardiomyopathy and recurrent ventricular arrythmias and hemangioma with cysts, are at least as likely as not related to an in-service injury, event, or disease, to include exposure to contaminated drinking water at Camp Lejeune and/or any hazardous chemicals encountered during his duties as an automotive mechanic, or whether it first had its onset during a period of active service. (b.) Whether the Veteran’s heart and/or liver disabilities, to include cardiomyopathy and recurrent ventricular arrythmias and hemangioma with cysts, are at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond their natural progression by service-connected disability. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.