Citation Nr: 21004444 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-31 830A DATE: January 27, 2021 REMANDED Service connection for pancreatic cancer, to include as due to contaminated water exposure at Camp Lejeune, is remanded. Service connection for diabetes mellitus, type II (DM II), to include as due to contaminated water exposure at Camp, is remanded. Service connection for hypertension, to include as due to contaminated water exposure at Camp Lejeune, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Marine Corps from July 1974 to July 1977 and the United States Army from January 2003 to June 2003, with additional reserves service. The Veteran passed away in March 2016. The appellant, who is the Veteran’s widow, was granted substitution as the claimant in January 2020. These matters come to the Board of Veterans’ Appeals (Board) on appeal from August 2011 and March 2014 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices. In December 2020, the appellant and her son, testified at a video-hearing before the undersigned. A transcript is of record. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant’s claim and to afford her every possible consideration. 1. Service connection for pancreatic cancer, to include as due to contaminated water exposure at Camp Lejeune, is remanded. The record confirms, prior to the Veteran’s death, his diagnosis of pancreatic cancer, as well as his service at Camp Lejeune during a period of conceded exposure to contaminated drinking water. Although the Veteran’s medical condition is not entitled to presumptive service connection based on exposure to contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309, the appellant may be able to establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds that a new opinion is warranted for the appellant’s claim because the obtained March 2014 opinion did not consider service connection on a direct basis. Id. Rather, the examiner merely concluded that it was “less likely as not (less than 50/50 probability) caused by or a result of the Veteran’s exposure to” contaminated water. In fact, during the December 2020 hearing, the appellant testified that the Veteran first started experiencing symptoms of his pancreatic cancer in “early 2003.” This could be during a period of his Reserves training, although it is unclear as the Veteran’s complete personnel records are not in the claims file. Thus, a remand is also warranted to obtain and associate any records pertaining to the Veteran’s reserves service. The Board notes that the VA medical opinion obtained must address the circumstances of the Veteran’s case and not rely merely on the fact that presumptive service connection has not been established for pancreatic cancer. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (“To permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection.”). Additionally, the new VA opinion should also consider the appellant’s lay statements regarding when the Veteran’s symptoms started, and any other particulars of the Veteran’s medical and military history deemed relevant. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Lastly, the Veteran’s private treatment records reflect that he had received additional treatment from Dr. Christein, Dr. Voyles, and Dr. Gray. See March 2014 Private Treatment Records. Those records, if any, have not been associated with the Veteran’s file. Because the clinical records of the treatment, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c). See also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). 2. Service connection for DM II, to include as due to contaminated water exposure at Camp Lejeune, is remanded. 3. Service connection for hypertension, to include as due to contaminated water exposure at Camp Lejeune, is remanded Similar to the other issue on appeal, the claims file does confirm diagnoses for diabetes mellitus, type II, and hypertension prior to the Veteran’s death, but neither of these conditions are presumptively related to his conceded exposure to contaminated drinking water during his service at Camp Lejeune. Even so, the law still requires consideration of direct service connection where presumptive service connection is in applicable. Combee, 34 F.3d 1039. The Board notes that no medical opinion has ever been obtained with respect to the pending claims for DM II and hypertension. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In light of the Veteran’s diagnoses and circumstances of service prior to his death, the Board finds a remand is warranted to obtain VA medical opinions pertaining to these issues on appeal. McLendon, 20 Vet. App. at 83-86. The matters are REMANDED for the following action: 1. Ask the appellant to provide a release for relevant records of treatment from any private practitioners or, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. Specifically, records from Dr. Christein, Dr. Voyles, and Dr. Gray should be sought. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant should be notified. 2. Compile a complete list of all periods of service with ACDUTRA and INACDUTRA separately listed. Associate all documents obtained with the file. All efforts to obtain these records, and the responses received, must be documented in the file, and must continue until it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. All medical records from the Veteran’s reserves service should be associated with the Veteran’s claims file. If such records are unavailable, the Veteran’s file must be clearly documented to that effect and the appellant notified in accordance with 38 C.F.R. § 3.159(e). 3. After completing the foregoing, obtain medical opinions, from appropriate medical examiners, to determine the nature and etiology of the Veteran’s (1) pancreatic cancer, (2) diabetes mellitus, type II, and (3) hypertension. The claims file should be made available to each examiner for review in connection with the examinations. Based on review of the record, each examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran’s pancreatic cancer, diabetes mellitus, type II, and/or hypertension had its onset in or is otherwise causally related to service, to include his presumed exposure to contaminated water at Camp Lejeune? (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) In so doing, the examiners must discuss the appellant’s lay statements, including that the Veteran first started experiencing symptoms of his hypertension in 2002 or 2003, and first started experiencing symptoms of pancreatic cancer in “early 2003.” See December 2020 Hearing Transcript. The examiners are advised that the mere fact that a presumption for service connection purposes has not been established for the particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the contaminated water exposure under the particular circumstances of the Veteran’s case, to include his specific risk factors, his medical history, and any other information deemed relevant to his illness. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.