Citation Nr: 21067632 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-27 206 DATE: November 4, 2021 REMANDED Entitlement to service connection for type II diabetes mellitus, due to exposure to contaminated water at Camp Lejeune and due to exposure to herbicides (Agent Orange), is remanded. Entitlement to service connection for kidney disease / renal toxicity, due to exposure to contaminated water at Camp Lejeune, due to exposure to herbicides (Agent Orange), and secondary to type II diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran had active duty service in the U.S. Marine Corps from October 1979 to March 1981. He served at the Camp Lejeune Marine Corps Base in North Carolina for approximately 10 months from June 1980 to March 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2015 and January 2018 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Unfortunately, during the course of the appeal, the Veteran died in November 2019. The appellant is the Veteran's surviving spouse. Within one year of his death, the appellant filed a timely August 2020 Request for Substitution of Claimant upon Death of Claimant (VA Form 21P-0847). See 38 C.F.R. § 3.1010(b), (c)(1). The appellant was able to file her Request for Substitution since the Veteran had an appeal pending before VA when he died. See 38 C.F.R. § 3.1010(g)(1)(ii). In a September 2020 VA decision, the AOJ accepted the appellant as the Veteran's substitute for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. See also 79 Fed. Reg. 52977 52985 (Sept. 5, 2014). Since the appellant has been recognized as a valid substitute, she has the same rights regarding the submission of evidence and hearings as would have applied to the Veteran had he not died. See 38 C.F.R. § 3.1010(f)(3). In July 2021, the appellant and her uncle (R.M.) testified at a Board virtual tele-hearing before the undersigned Veterans Law Judge (VLJ). The transcript of this hearing is associated with the claims file. 1. Service connection for type II diabetes mellitus, due to exposure to contaminated water at Camp Lejeune and due to exposure to herbicides (Agent Orange), is REMANDED. First, the AOJ must obtain a VA medical opinion from an appropriate clinician for the type II diabetes mellitus issue. The VA clinician should opine whether the Veteran's type II diabetes mellitus was causally or etiologically related to his service in the Marine Corps from 1979 to 1981, to include his presumed exposure to contaminants in the water supply at Camp Lejeune. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this regard, the AOJ has not yet afforded the appellant a VA opinion for the type II diabetes mellitus issue on appeal. In this regard, the Veteran's service personnel records (SPRs) confirm that he served at the Camp Lejeune Marine Corps Base from June 1980 to March 1981. This is approximately 10 months at Camp Lejeune during the required time period. Therefore, he is presumed to have been exposed to contaminants in the water supply during his active duty at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). However, the Veteran's type II diabetes mellitus is not on the list of diseases associated with contaminants in the water supply at Camp Lejeune for purposes of awarding presumptive service connection. 38 C.F.R. § 3.309(f). In other words, his type II diabetes mellitus is not one of the presumptive Camp Lejeune disabilities. In addition, the Veteran's type II diabetes mellitus is not on the list of "covered illnesses or conditions" assumed attributable to service at Camp Lejeune for treatment purposes only under 38 C.F.R. § 17.400(b). Regardless, a VA medical opinion is necessary to address whether direct service connection for other non-presumptive conditions is warranted, since his type II diabetes mellitus is not listed as a disease presumptively associated with contaminated water at Camp Lejeune. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). That is, although presumptive service connection for type II diabetes mellitus as a Camp Lejeune disease is not available, the Board must consider service connection on a direct basis for the Veteran's type II diabetes mellitus. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). A VA examiner should not require a consensus in all medical literature regarding whether the Veteran's type II diabetes mellitus was caused by the contaminants at issue; only whether it is "as likely as not" that his type II diabetes mellitus was caused by his exposure to such contaminants at Camp Lejeune. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits"). Therefore, although it will result in additional delay in adjudicating the appeal, a remand is required to obtain a VA medical opinion on the etiology of the type II diabetes mellitus issue. An actual VA medical examination for the type II diabetes mellitus issue cannot be performed as the Veteran is deceased. Second, a remand is required for the AOJ to attempt to secure Federal medical records from the Federal Bureau of Prisons (specific location unknown), where the Veteran reported he was incarcerated from March 2000 to July 2007. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2). The Veteran reported being treated for his type II diabetes mellitus while incarcerated at a Federal facility from March 2000 to July 2007. To that end, the Veteran completed a November 2013 VA medical authorization (VA Form 21-4142) for the AOJ to secure these medical records from the Federal prison facility. However, in an October 2014 deferred rating decision, the AOJ noted that the Veteran failed to submit on his November 2013 VA Form 21-4142 a name or complete address for the Federal Bureau of Prisons facility he was incarcerated at. The AOJ followed up by contacting the Veteran in a November 2014 VCAA notice letter, requesting that he complete a new VA Form 21-4142 for the Federal Bureau of Prisons. However, there is no indication in the claim file that the Veteran completed a new VA medical authorization (VA Form 21-4142) for the AOJ to secure these medical records from the Federal Bureau of Prisons. In this respect, VA regulation indicates that a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal agency or department custodians. If requested by VA, the claimant must provide enough information to identify and locate the existing records, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159(c)(2)(i). Nonetheless, for medical records in the custody of a Federal department or agency, VA efforts must continue until the Federal records are obtained, unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. Id. Thus, if the appellant surviving spouse provides the requested information as to name and location of the Federal correctional facility where the Veteran was incarcerated and treated for his type II diabetes mellitus from 2000 to 2007, another attempt to secure these Federal records from the Federal Bureau of Prisons would be warranted. If these Federal records are not available, or the search for any such Federal records otherwise yields negative results, that fact must clearly be documented in the claims file. The appellant and her representative also should be notified of VA's attempts to secure these Federal records. 38 C.F.R. § 3.159(e)(1). 2. Service connection for kidney disease / renal toxicity, due to exposure to contaminated water at Camp Lejeune, due to exposure to herbicides (Agent Orange), and secondary to type II diabetes mellitus, is REMANDED. First, for the Veteran's kidney disease, the AOJ must obtain a VA addendum opinion from the same VA physician who proffered the earlier December 2017 VA medical opinion from a Camp Lejeune Contaminated Water (CLCW) subject matter expert (SME). Although probative, the December 2017 VA medical opinion was not fully adequate for the kidney disease issue on appeal. On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, in the December 2017 VA medical opinion, the VA physician opined that the Veteran's chronic kidney disease stage IV (end stage on hemodialysis) was "less likely than not" (less than 50 percent probability) incurred in or caused by his presumed exposure to contaminants in the Camp Lejeune water supply between 1953 and 1987. However, the VA examiner focused on the fact that the Veteran's chronic kidney disease was not on the list of presumptive diseases associated with contaminated water at Camp Lejeune. See 38 C.F.R. § 3.309(f). The VA examiner failed to address whether the Veteran's kidney problems represent "renal toxicity," which is in fact listed as one of the "covered illnesses or conditions" assumed attributable to service at Camp Lejeune for treatment purposes only under 38 C.F.R. § 17.400(b) and (c). This finding triggers VA's duty to assist for a VA clinician to provide clarification on the earlier December 2017 VA medical opinion. Therefore, although it will result in additional delay in adjudicating the appeal, a remand is required to obtain a VA addendum opinion on the etiology of the Veteran's kidney disease. If the same December 2017 VA physician is not available, another qualified VA clinician will provide the addendum opinion. An actual VA medical examination for the kidney disease issue cannot be performed as the Veteran is deceased. Second, during his lifetime, the Veteran reported being treated by various private medical providers throughout the 2000s for his type II diabetes mellitus and kidney disease. See e.g., August 2014 VA nephrology physician note; January 2015 VA nephrology note; January 2016 to September 2019 VA treatment records; November 2019 VA addendum note; and April 2017 Report of General Information (VA Form 27-0820). In addition, any private, terminal hospital or hospice records from "Aging Ahead" dated around the time of the Veteran's death in November 2019, if available, may provide more detailed information on his diabetes and kidney problems. However, none of these private treatment records are currently present in the claims file. In this respect, VA is required to make reasonable efforts to obtain all "relevant" records, including private and non-Federal records like these, which the Veteran or, in this instance, his heirs adequately identify and authorizes VA to obtain. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). The Federal Circuit Court has held that the duty to assist for VA to obtain private records applies to relevant or potentially relevant records, such as the private records discussed above. See Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010) (emphasis added). "Reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request, unless it is clear after the first request that a second request would be futile. 38 C.F.R. § 3.159(c)(1). Therefore, the AOJ should contact the appellant and ask her to submit herself the private treatment records and private, terminal hospital or hospice records, if she has them in her personal possession, or to complete and return the necessary authorizations (VA Form 21-4142) and (VA Form 21-4142a) for VA to obtain them for her. It is the appellant's choice whether or not to provide authorization for VA to secure these private treatment records and private, terminal hospital or hospice records, if she believes they would help her establish the Veteran's service connection claims. Therefore, these issues are REMANDED for the following action: 1. Contact the appellant (surviving spouse) and ask her to provide the information as to name and location of the Federal correctional facility where the Veteran was incarcerated and treated for his type II diabetes mellitus from March 2000 to July 2007. If specifically required by the Federal facility, ask the appellant to complete and return the necessary VA authorization forms (VA Form 21-4142) and (VA Form 21-4142a). If she provides the necessary information, contact the Federal Bureau of Prisons, and request all of the Veteran's medical records from this Federal facility dated from March 2000 to July 2007. Then associate these medical records from the Federal facility with the appellant's claims file. A response from the Federal Bureau of Prisons is required here. If any of the requested medical records from the Federal facility are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these medical records from the Federal facility must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. Required notice must be provided to the appellant and her representative. 2. Contact the appellant and ask her to complete and return the necessary authorizations (VA Form 21-4142) and (VA Form 21-4142a) to secure multiple private treatment records and private, terminal hospital or hospice records (listed below). If the appellant provides the required authorization with sufficient information to identify and locate these private records, the AOJ should make two requests for the authorized records from these private facilities, unless it is clear after the first request that a second request would be futile. Finally, the appellant is also asked to provide any of the private treatment records (listed below) herself if she has them in her possession. The missing private records (referenced in an August 2014 VA nephrology physician note; January 2015 VA nephrology note; January 2016 to September 2019 VA treatment records; November 2019 VA addendum note; and April 2017 Report of General Information (VA Form 27-0820)), consist of the following: Private treatment (for the Veteran's type II diabetes mellitus and kidney disease) at Grace Hill Health Center Clinic dated up until October 2013. Private treatment (for the Veteran's kidney disease) with Dr. Danijela Mataic, M.D., (a nephrologist and internal medicine physician) at St. Clare Health Center (SCHC) from 2016 to 2019. Private treatment (for hemodialysis for his kidney disease) at DaVita Dialysis from 2016 to 2019 in St. Louis, Missouri. Private, terminal hospital or hospice records from "Aging Ahead" dated around the time of the Veteran's death in November 2019. 3. After completion of steps 1 and 2, secure a VA medical opinion from an appropriate clinician, pertaining to the issue of service connection for type II diabetes mellitus. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinion. (An actual VA medical examination cannot be performed as the Veteran is deceased). The VA examiner is asked to provide a response to the following: Is it "at least as likely as not" (i.e., an approximate balance) that the Veteran's type II diabetes mellitus was directly related to his presumed exposure to contaminants in the water supply at Camp Lejeune? In answering this particular question, the VA examiner is advised that the mere fact that the Veteran's type II diabetes mellitus is not on the list of diseases associated with contaminants in the water supply at Camp Lejeune for purposes of awarding presumptive service connection is not dispositive of the issue of a nexus to service. A negative opinion cannot be based solely on the fact that his type II diabetes mellitus is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. A clinician cannot conclude that a disability cannot be associated with exposure to contaminated water at Camp Lejeune simply because it is not on the list of presumptive service-connected diseases. Rather, the VA examiner must provide a rationale supported by a discussion of any medical treatise evidence or clinical studies in analyzing whether or not the Veteran's type II diabetes mellitus was the direct result of his confirmed exposure to contaminants in the water supply of Camp Lejeune for an approximate 10-month period from June 1980 to March 1981. In answering this particular question, the VA examiner must also provide a rationale supported by a discussion on whether the Veteran had any other risk factors for developing type II diabetes mellitus, or whether the Veteran's type II diabetes mellitus manifested itself in an unusual way. In this regard, the VA examiner will consider the specific facts and circumstances of this Veteran's case. In answering this particular question, the VA examiner is advised of the lay assertion of the appellant surviving spouse that when the Veteran went to reenlist in 1981 during his Marine Corps service, military physicians did a blood sample on him showing microorganisms in his blood that would not allow him to reenlist. The appellant believes the Veteran's type II diabetes mellitus was directly caused by the microorganisms from contaminated water that were found in his blood upon his discharge from service in the Marine Corps in March 1981. See July 2021 virtual tele-hearing testimony. (The Board notes it was unable to confirm any such blood test readings in the Veteran's service treatment records (STRs)). In answering this particular question, the VA examiner is advised that STRs dated from 1979 to 1981 are negative for any complaints, treatment, or diagnosis of type II diabetes mellitus or elevated blood sugar. Post-service, a January 2014 VA optometry consult when describing the onset of the Veteran's type II diabetes mellitus stated the following: "date: 2000? Exact date is unknown." Other evidence in the record placed the Veteran's first treatment for his type II diabetes mellitus sometime in the early 2000s. The Veteran stated several times that for many years after discharge from service in 1981 he did not seek any medical treatment because Marines are not supposed to acknowledge pain or discomfort or any medical problems. 4. After completion of steps 1 and 2, secure a VA addendum opinion on the kidney disease issue from the VA physician who proffered the earlier December 2017 VA medical opinion (who was a Camp Lejeune Contaminated Water (CLCW) subject matter expert (SME)). If this VA physician is no longer available, another qualified VA clinician must provide the addendum opinion. (An actual VA medical examination cannot be performed as the Veteran is deceased). The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. The VA examiner is asked to provide a response to the following: Is it "at least as likely as not" (i.e., an approximate balance) that the Veteran's kidney disease was directly related to his presumed exposure to contaminants in the water supply at Camp Lejeune? In answering this particular question, the VA examiner must address whether the Veteran's kidney problems represented "renal toxicity," which is in fact listed as one of the "covered illnesses or conditions" assumed attributable to service at Camp Lejeune for treatment purposes only under 38 C.F.R. § 17.400(b), (c). The VA examiner should state whether this changes the previous December 2017 VA medical opinion in any way. In answering this particular question, the VA examiner is advised of the lay assertion of the appellant surviving spouse that when the Veteran went to reenlist in 1981 during his Marine Corps service, military physicians did a blood sample on him showing microorganisms in his blood that would not allow him to reenlist. The appellant believes the Veteran's kidney disease was directly caused by the microorganisms from contaminated water that were found in his blood upon his discharge from service in the Marine Corps in March 1981. See July 2021 virtual tele-hearing testimony. (The Board notes it was unable to confirm any such blood test readings in the Veteran's service treatment records (STRs)). In answering this particular question, the VA examiner is advised that the earlier December 2017 VA medical opinion from a Camp Lejeune Contaminated Water (CLCW) subject matter expert (SME) discussed other significant risk factors the Veteran had for his kidney disease. Medical treatise evidence was cited and discussed. The December 2017 VA examiner surmised that current scientific literature focused on the medical, toxicology and epidemiology of environmental contaminants does not support the claim that potential exposure to Trichloroethylene (TCE), Perchloroethylene (PCE), Benzene, Vinyl Chloride, or other Volatile Organic Compounds (VOCs) is associated with chronic end­stage kidney disease. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.