Citation Nr: 21064849 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-03 386A DATE: October 21, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for diabetes mellitus, type II, is granted. New and material evidence having been received, the application to reopen the claim for service connection for systemic lupus erythematosus (SLE) is granted. New and material evidence having been received, the application to reopen the claim for service connection for Barrett's disease is granted. Service connection for SLE is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for Barrett's disease, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. In a final decision issued in September 2014, the Agency of Original Jurisdiction (AOJ) denied service connection for diabetes mellitus, type II, SLE, and Barrett's disease. 2. Evidence associated with the record since the final September 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes, SLE, and Barrett's disease. 3. The Veteran's currently diagnosed SLE is related to his acknowledged in-service exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The September 2014 rating decision that denied service connection for diabetes mellitus, type II, SLE, and Barrett's disease is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for SLE. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has been received to reopen a claim of entitlement to service connection for Barrett's disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for SLE have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived AOJ consideration of the evidence associated with the record since the issuance of the December 2018 statement of the case. 38 C.F.R. § 20.1305(c). The undersigned also held the record open for 60 days for the submission of additional evidence, which was received in November 2020 and December 2020. 38 U.S.C. § 7105(e)(1). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for diabetes mellitus, type II. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for SLE. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for Barrett's disease. By way of background, VA received the Veteran's original claim for service connection for diabetes mellitus, type II, SLE, and Barrett's disease in July 2013. In a September 2014 rating decision, the AOJ considered his service treatment records (STRs), service personnel records (SPRs), and post-service private treatment records, and found that his STRs were negative for any complaints, treatment, or diagnosis of such disorders, and there was no link between his claimed disorders and his military service, to include exposure to contaminated water at Camp Lejeune. The AOJ further determined that the evidence failed to show a diagnosis of SLE with the presumptive period. Thus, service connection for diabetes mellitus, type II, SLE, and Barrett's disease was denied. In September 2014, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the September 2014 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In September 2017, the Veteran filed an application to reopen his claims of entitlement to service connection for diabetes mellitus, type II, SLE, and Barrett's disease. Evidence received since the issuance of the September 2014 rating decision includes additional post-service treatment records, opinions addressing the etiology of the Veteran's claimed disorders, and his lay statements, to include his testimony at the September 2020 Board hearing. In this regard, the Veteran reported that he experienced symptoms in service that he believed were indicative of the presence of SLE, to include rashes, painful urination, mononucleosis, fevers, and sensitivity to light, and stated that he experienced severe heartburn while stationed in Quantico, which he alleged progressed into his currently diagnosed Barrett's disease. Additionally, the Veteran submitted private medial opinions by Dr. J.S-M. and Dr. S.B., which reflect that his SLE, diabetes, and Barrett's disease are related to his exposure to contaminated water at Camp Lejeune. Consequently, as the September 2014 rating decision denied service connection for diabetes, SLE, and Barrett's disease on the basis that the evidence failed to demonstrate that such disorders were related to his military service, to include exposure to contaminated water at Camp Lejeune, and the newly received evidence, which is presumed credible for reopening his claims, relates such disorders to such in-service exposure, the Board finds that the evidence associated with the record since the final September 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating such claims. Thus, as new and material has been received, the Veteran's claims for service connection for diabetes, SLE, and Barrett's disease are reopened. 4. Entitlement to service connection for SLE, to include as due to exposure to contaminated water at Camp Lejeune. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include SLE, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, VA acknowledges that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1, 1953, through December 31, 1987, were exposed contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307(a)(7). In this regard, VA regulations provide that contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride. Further, VA has established a presumption of service connection for certain diseases for veterans, former reservists, and former National Guard members who were exposed to contaminants in the water supply while serving at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Specifically, there is a presumption of service connection for kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer, which have become manifest to a degree of 10 percent or more at any time after service if the veteran was stationed at Camp Lejeune during the designated period. 38 C.F.R. § 3.309(f). Notably, SLE is not a disease for which presumptive service connection is provided; nevertheless, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, as noted previously, the Veteran contends that his SLE had its onset in service as he experienced symptoms therein that he believed were indicative of the presence of such disease, to include rashes, painful urination, mononucleosis, fevers, and sensitivity to light, or is related to exposure to contaminated water at Camp Lejeune. While the Veteran's STRs reflect that he was seen in November 1980 for a rash on his face, at which time he reported that he would have rashes after being exposed to the sun, mononucleosis in June 1982, and painful urination in September 1982, such are negative for a diagnosis of SLE. Furthermore, he was not diagnosed with such disease until January 2004, many years after his separation from service. Nonetheless, the Veteran's SPRs confirm that he was stationed at Camp Lejeune from April 25, 1980, to July 2, 1980, a period of more than 30 days, and, thus, is presumed to have been exposed to contaminated water coincident with such service. Furthermore, in November 2020, Dr. J.S-M., a rheumatologist, opined that it was at least as likely as not that the Veteran's lupus was caused by his in-service exposure to TCE-contaminated water at Camp Lejeune. In support thereof, she noted that SLE is an autoimmune disease that can persist through the entire life of the patient, exhibiting possible frequent relapses. Numerous research studies have addressed the etiology of the disease and, although the pathogenesis of the condition is not fully understood, it is known to be caused by both genetic and environmental interactions. Environmental risk factors are important because they are modifiable. Various environmental exposures have been hypothesized to contribute to the risk of SLE, and such can work together to cause epigenetic changes, resulting in immune dysregulation, loss of tolerance, and autoimmunity, leading to onset or recurrence of SLE. TCE, one of the water contaminants present at Camp Lejeune, has been linked with impaired immune system function and is a widely used organic solvent that has been implicated in the development of multiple autoimmune diseases, to include SLE. In this regard, Dr. J.S-M. referenced multiple studies which indicate that TCE exposure elicits an autoimmune response, leading to SLE-like disease. In regard to the Veteran's specific case, Dr. J.S-M. noted that his medical history clearly parallels symptomatology noted in the literature. SLE is a chronic autoimmune inflammatory disease that can present with different combinations of symptoms and also tend to mimic other medical conditions, thus making it difficult to diagnose without delay in most cases. The classic initial triad of fever, rash, and joint pain does not always occur in the initial presentation, which may further delay the diagnosis. In the instant case, Dr. J.S-M. Veteran was seen with a 1-year history of a rash on his forehead in January 2004, and his condition progressed with intermittent joint pain, fever, and fatigue, ultimately resulting in a diagnosis of SLE in May 2014. Without any known family history for SLE or other environmental risk factors for the disease, his in-service exposure to TCE was a substantial causal factor in the development of the disease. As previously noted, TCE exposure can lead to reactive oxygen and nitrogen species-medicated structural modifications on endogenous proteins, that can lead to generation of neoantigens. After antigen processing, these neoantigen can elicit an autoimmune response that can mimic SLE. These findings have been supported by an additional study, which found an increased prevalence of SLE in a population exposed to TCE-contaminated water in Woburn, Massachusetts, a scenario similar to the Camp Lejeune water contamination that took place between 1953 to 1987. Consequently, based on the medical facts and research presented, Dr. J.S-M. concluded that it is at least as likely as not that the Veteran's lupus was caused by his in-service exposure to TCE at Camp Lejeune. The Board notes that, in December 2020, Dr. S.B., an internal medicine physician, also opined that the Veteran's SLE is related to his in-service exposure to the contaminants of benzene/dioxin in the water supply at Camp Lejeune; however, as noted previously, dioxin, which is an herbicide agent, has not been included in the acknowledged volatile organic compounds found to be present at Camp Lejeune. Nonetheless, as Dr. J.S-M. is a medical professional with the appropriate expertise to address the etiology of the Veteran's SLE, considered all relevant facts in her opinion, and offered a thorough rationale for her conclusion, the Board affords her opinion great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, there is no medical opinion to the contrary. Therefore, the Board finds that the Veteran's currently diagnosed SLE is related to his acknowledged in-service exposure to contaminated water at Camp Lejeune. Consequently, service connection for such disorder is warranted. REASONS FOR REMAND 5. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to contaminated water at Camp Lejeune. 6. Entitlement to service connection for Barrett's disease, to include as due to exposure to contaminated water at Camp Lejeune. As noted previously, the Veteran contends that his Barrett's disease had its onset in service as he experienced severe heartburn while stationed in Quantico, which he alleged progressed into such currently diagnosed disorder, or such, as well as his diabetes, is related to exposure to contaminated water at Camp Lejeune. In this regard, the Veteran's STRs are negative for any complaints, treatment, or diagnoses referable to diabetes or Barrett's disease, to include heartburn, and such disorders were not diagnosed until 2013 and 2006, respectively. Nonetheless, as noted previously, his SPRs confirm that he was stationed at Camp Lejeune from April 25, 1980, to July 2, 1980, a period of more than 30 days, and, thus, is presumed to have been exposed to contaminated water coincident with such service. Furthermore, in December 2020, Dr. S.B., an internal medicine physician, also opined that the Veteran's diabetes and Barrett's disease is related to his in-service exposure to the contaminants of benzene/dioxin in the water supply at Camp Lejeune; however, as noted previously, dioxin, which is an herbicide agent, has not been included in the acknowledged volatile organic compounds found to be present at Camp Lejeune. Nonetheless, as benzene is included such contaminants and Dr. S.B.'s opinion suggests that the Veteran's diabetes and Barrett's disease may indeed be related to his acknowledged in-service exposure to contaminated water at Camp Lejeune, the Board finds that a remand is necessary in order to obtain an opinion addressing such matter. The matters are REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate VA clinician for an opinion addressing the etiology of the Veteran's diabetes and Barrett's disease. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current diagnosed diabetes mellitus, type II, and/or Barrett's disease are related to his acknowledged in-service exposure to contaminated water at Camp Lejeune. In offering such opinion, the examiner should consider the fact that VA has acknowledged the Veteran's in-service exposure to contaminated water while he was stationed at Camp Lejeune from April 25, 1980, to July 2, 1980; such contaminated water is acknowledged to contain the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride (but not dioxin); and Dr. Dr. S.B.'s December 2020 opinion that the Veteran's diabetes and Barrett's disease is related to his in-service exposure to the contaminants of benzene/dioxin in the water supply at Camp Lejeune. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.