Citation Nr: 21075145 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-35 644 DATE: December 17, 2021 REMANDED Entitlement to service connection for neurobehavioral disorder, to include facial numbness, incoordination, balance issues, speech issues, and headaches; and as due to exposure to contaminated water at Camp Lejeune, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1976 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The Veteran was afforded the opportunity to submit supporting evidence within a 90 day window subsequent to the hearing, but no such evidence has been received. Notably, the Veteran was not represented by an accredited and reasonably available representative at the July 2021 hearing. The Veteran was afforded the opportunity to file a timely motion for a new hearing. See July 2021 Hearing Transcript. Neither the Veteran nor his representative have filed a motion for a new hearing. The Veteran contends his neurobehavioral disorder, to include facial numbness, incoordination, balance issues, speech issues, and headaches, is due to his service in Camp Lejeune. See March 2014 Statement in Support of Claim; February 2015 Notice of Disagreement; June 2018 VA Form 9. Military personnel records confirm the Veteran was in Camp Lejeune for periods from 1976 to 1980. Further, the March 2014 rating decision conceded presumed exposure to contaminated water at Camp Lejeune. Notably, December 2013 VA treatment records indicate the Veteran has "a severe mixture of neurological and neurobehavioral issues that will be impossible to be separated out since the head and neck surgery has caused damage and psychological stress." The VA physician opined that it is as likely as not that the toxic exposure from Camp Lejeune has contributed to his constellation of symptoms from the nerve damage and neurobehavioral changes. The Board finds that this opinion, while favorable to the Veteran, it not enough to grant service connection. There is no supporting rationale as required by VA law. See Jones v. Shinseki, 23 Vet. App. 382, 387 (2010) (holding that there must be a medical opinion that provides some non-speculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus). Rather, the physician provided a conclusory statement that toxic exposure during the Veteran's service has contributed to his neurobehavioral symptoms. Although this bare statement is not enough for the Board to effectuate a grant of entitlement to service connection, it does indicate his disability or symptoms of a disability may be associated with the Veteran's service. The National Academy of Sciences' National Research Council (NRC) and the Department of Health and Human Services' Agency for Toxic Substances and Disease Registry (ATSDR) have undertaken studies to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. Based on analyses of scientific studies involving the relevant chemicals, the NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. The NRC analysis has found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited or suggestive evidence of an association. These fourteen diseases included neurobehavioral effects. See 38 U.S.C. § 1710(e)(1)(F)(xiv); see also 38 C.F.R. § 17.400. However, neurobehavioral effects is not a condition entitled to presumptive service connection based upon the Veteran's in-service exposure to contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309(f). Nevertheless, even if a claimant is not entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. The Veteran has not been afforded a VA examination in relation to his claim for service connection, despite the indication in the December 2013 VA statement that his disability could be related to his service. The threshold for finding that symptoms of a disability may be associated with service is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Therefore, in light of the above, the RO should arrange to provide the Veteran with a VA examination addressing whether the Veteran has a neurobehavioral disorder and, if so, determine the etiology of any neurobehavioral disorder, based on review of the entire record-from a qualified VA physician. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79. As the matter is being remanded, updated VA treatment records should also be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The appeal is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Afford the Veteran an opportunity to attend VA examination with an appropriate examiner for the purpose of determining the nature and etiology of the Veteran's claimed neurobehavioral disorder, manifested by facial numbness, incoordination, balance issues, speech issues, and headaches; and to include as due to exposure to contaminated water at Camp Lejeune. The examiner should review the Veteran's claims folder as well as any information provided by the RO relating to exposure to contaminated water at Camp Lejeune; and elicit from the Veteran any information not available through a review of the claims folder that may be relevant to rendering the requested nexus opinion. The examiner shall provide an opinion as to whether it is at least as likely as not that any diagnosed neurobehavioral disorder or symptoms such facial numbness, incoordination, balance issues, speech issues, and headaches is/are active duty service, to include exposure to contaminated drinking water at Camp Lejeune. In offering the opinion, the examiner shall specifically address the December 2013 VA treating physician's opinion stating that "toxic exposure from Camp Lejeune has contributed to his constellation of symptoms from the nerve damage and neurobehavioral changes." The examiner shall also consider the NRC's findings of neurobehavioral effects in the category of limited or suggestive evidence of an association with toxic exposure at Camp Lejeune. A complete rationale for the opinion must be provided. 3. After completing the above and any other development deemed necessary, readjudicate the claim. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.