Citation Nr: 21003925 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 20-16 779 DATE: January 25, 2021 REMANDED Entitlement to an effective date prior to March 14, 2017, for the grant of service connection of Non-Hodgkin's Lymphoma is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1964 to October 1967. This matter comes before the Board from a February 2018 rating decision. 1. Entitlement to an effective date prior to March 14, 2017, for the grant of service connection of Non-Hodgkin's Lymphoma is remanded. In a September 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for non-Hodgkin’s Lymphoma under the regulations providing for presumptive service connection relating to exposure to contaminants at Camp Lejeune. See 38 C.F.R. § 3.309(f). In this rating, the AOJ awarded service connection effective March 14, 2017, which is the effective date of the liberalizing law providing for presumptive service connection for non-Hodgkin’s Lymphoma related to Camp Lejeune contaminant exposure. See 82 FR 4173. The AOJ deferred the issue of entitlement to an effective date prior to March 14, 2017. In a February 2018 rating decision on appeal, the AOJ denied entitlement to an effective date prior to March 14, 2017, for the award of service connection for non-Hodgkin’s Lymphoma. The Veteran has appealed this determination. The Veteran’s argues that an effective date prior to March 14, 2017, is warranted because the claim could also be substantiated on a direct basis. The Veteran also asserts that an effective date of at least January 13, 2017, is warranted on the grounds this date marks when the liberalizing final regulation was published in the Federal Register. However, if the claim is substantiated on a direct basis, an effective date prior to January 14, 2017, could be warranted. The matter must be remanded for further development. In January 2018, VA obtained an opinion to address the issue of direct service connection for non-Hodgkin’s Lymphoma. The examiner offered a negative opinion, stating that “[a] nexus cannot be clearly formed between [the Veteran’s] Camp Lejeune exposure and the development of his lymphoma.” Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). The February 2018 examiner addressed the wrong standard of probability in addressing the claim. The question is not whether there is a “clearly formed” nexus between the Veteran’s non-Hodgkin’s Lymphoma and his presumed exposure to contaminants at Camp Lejeune, but whether it is at least as likely as not that this exposure caused the Veteran’s non-Hodgkin’s Lymphoma. Because the wrong standard was utilized, the examination report is returned. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s non-Hodgkin’s Lymphoma is at least as likely as not (a 50 percent or greater possibility) related to exposure to contaminants at Camp Lejeune. Any opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability. Marissa Caylor Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.