Citation Nr: 21064507 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 19-36 906 DATE: October 20, 2021 REMANDED Entitlement to service connection for systemic lupus erythematosus, to include as due to herbicide agent exposure and/or exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for rheumatoid arthritis, to include as due to herbicide agent exposure and/or exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for a bilateral leg disorder, to include as due to herbicide agent exposure and/or exposure to contaminated water at Camp Lejeune, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1965 to December 1967, to include verified service both within the Republic of Vietnam and at Camp Lejeune. The claims come before the Board of Veterans' Appeals (Board) on appeal of an April 29, 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes in passing that this rating decision issued an initial noncompensable rating for hearing loss effective September 23, 2013. The Veteran initially noted disagreement with this determination. See Notice of Disagreement (NOD) (rec'd Apr. 23, 2015). The Veteran was issued a Statement of the Case (SOC) in October 2019, and the Veteran's appeals of the issues on the title page were perfected upon receipt of his returned VA Form 9. See VA Form 9 (rec'd Nov. 27, 2019). Notably, the Veteran specifically stated on the Form 9 that he is only appealing the specifically listed issues, and this list excludes entitlement to an increased, i.e.: compensable, rating for hearing loss. See id. at Question No. 8 et seq. Therefore, the Board does not have jurisdiction for that claim. This appeal is advanced on the docket on account of the Veteran's advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board notes that the agency of original jurisdiction (AOJ) attempted to schedule an examination in this case in October 2015. A notation in the claims file indicates that the Veteran declined an examination with the contractor. Further details were not provided. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record. 38 C.F.R. § 3.655(a). The Board notes that a claimant has some responsibility to cooperate in the development of all facts pertinent to his claim and that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is advised that an examination is necessary in this case and that any failure to report for any scheduled examination without good cause may result in an adverse determination. 1. Entitlement to service connection for systemic lupus erythematosus is remanded. The Veteran has asserted entitlement to service connection for systemic lupus erythematosus as a result of exposure to contaminated water during his service at Camp Lejeune or else due to herbicide agent exposure during service in the Republic of Vietnam. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The Board notes that the Veteran's military personnel records and DD Form 214 confirm that the Veteran was awarded the Vietnam Service Medal with two stars, the Republic of Vietnam Campaign Medal, and was stationed throughout the Republic of Vietnam from June 1966 through July 1967. See, e.g.: DD Form 214 (rec'd Nov. 15, 2013); Military Personnel Record (rec'd Jan. 25, 2018 ). The Board concludes that the Veteran has qualifying service within the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(i) and (iii). In addition, service personnel records confirm that the Veteran was stationed at Camp Lejeune from approximately February 1966 to March 1966. The Veteran's post-service treatment records confirm his diagnosis of systemic lupus erythematosus. See, e.g.: Veteran Provided Disability Benefits Questionnaire (rec'd Oct. 24, 2013 ) (indicating diagnosis of lupus in March 2003); VA Medical Records ( May 3, 2003 ; Oct. 21, 2013; Sept. 13, 2017; Sept. 13, 2019). To date, the Veteran has not been afforded a VA examination to determine the etiology of his diagnosed systemic lupus erythematosus despite his confirmed service in both the Republic of Vietnam and at Camp Lejeune. In light of the foregoing, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed systemic lupus erythematosus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for rheumatoid arthritis is remanded. 3. Entitlement to service connection for a bilateral leg disorder is remanded. For the bilateral leg disorder, the Veteran stated in his Notice of Disagreement that "I feel you never even considered the conditions of my legs. I have not been able to work with this condition." See Notice of Disagreement (rec'd Apr. 23, 2015), at Question No. 11A. The Veteran's service treatment records include at least two notations of pilonidal dimples, see Service Treatment Records (Nov. 3, 1965; Mar. 13, 1967), while a January 2018 VA appears to note recurrent veinous thrombosis in the right leg as possibly attributable to systemic lupus erythematosus, see VA Examination (rec'd Jan. 25, 2018), at Question No. 5K. The Veteran also indicated that his disorders on appeal should be considered attributable to either herbicide agent exposure in the Republic of Vietnam or the contaminated water supply at Camp LeJeune. There is no etiological opinion as to whether this theory is at least 50 percent likely applicable to the Veteran's remaining claims. To date, the Veteran has not been afforded a VA examination to determine the etiology of his claimed rheumatoid arthritis and bilateral leg disorder despite his confirmed service in both the Republic of Vietnam and at Camp Lejeune. In light of the foregoing, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed rheumatoid arthritis and bilateral leg disorder. See McLendon v. Nicholson, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed systemic lupus erythematosus. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's systemic lupus erythematosus had its onset during any period of service or is etiologically related to service, include exposure to herbicide agents in Vietnam and/or contaminated water at Camp Lejeune? A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed rheumatoid arthritis and bilateral lower extremity disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's rheumatoid arthritis had its onset during any period of service or is etiologically related to service, include exposure to herbicide agents in Vietnam and/or contaminated water at Camp Lejeune? (B) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity disorder(s) had its onset during any period of service or is etiologically related to service, include exposure to herbicide agents in Vietnam and/or contaminated water at Camp Lejeune? A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) 4. A copy of the notification letter to schedule the ordered examinations must be included in the claims file and must reflect that it was sent to the Veteran's last known address of record. The notice must state that it is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for an examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate 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.