Citation Nr: 21076484 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 19-29 848 DATE: December 23, 2021 REMANDED Entitlement to service connection for kidney disease is remanded. Entitlement to service connection for a heart condition, including coronary artery disease and prior heart attacks, is remanded. Entitlement to service connection for a stroke is remanded. Entitlement to service connection for loss of vision in the right eye as secondary to a stroke is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the U.S. Marine Corps from July 1974 to July 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2021. At the hearing, the undersigned Veterans Law Judge granted the Veteran's motion to keep the record open for a period of 60 days. The evidence submitted by the Veteran subsequent to the January 2021 hearing will be considered by the Board in the adjudication of this appeal. 1. Entitlement to service connection for kidney disease is remanded. 2. Entitlement to service connection for a heart condition, including coronary artery disease and prior heart attacks, is remanded. 3. Entitlement to service connection for a stroke is remanded. 4. Entitlement to service connection for loss of vision in the right eye as secondary to a stroke is remanded. The Veteran asserts service connection for kidney disease, a heart condition, and a stroke as due to exposure to contaminants at Camp Lejeune and Marine Corps Air Station (MCAS) El Toro, and as due to exposure to an herbicide agent such as Agent Orange. See January 2021 Hearing Transcript; February 2018 VA Form 21-526EZ. He contends service connection for loss of vision of the right eye as secondary to his stroke. The Board finds that these matters require further development, as discussed below. Preliminarily, with regard to whether the Veteran had in-service herbicide exposure, there is a presumption of herbicide exposure for veterans who served in the Republic of Vietnam (Vietnam) from January 9, 1962 through May 7, 1975. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). He does not state, and the record does not show, that he was stationed in Vietnam. Rather, he states that during the period he served at MCAS Futenma, in Okinawa, Japan, he was a crewmember on flights to Vietnam as a Loadmaster and Radio Operator helping to bring back equipment and withdraw troops. See January 2021 Hearing Transcript. However, his service personnel records show he served at MCAS Futenma from December 1976 to November 1977, more than a year after the Vietnam era, and long after the last American troops had left. He did not have foreign service prior to that period. VA regulation also provides that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served aboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v). The Veteran was a Loadmaster and Radio Operator on C-130 aircraft, not C-123, and did not serve in the Air Force or Air Force Reserve. Thus, this presumption also does not apply. As these matters are being remanded for further development, the Veteran may take that opportunity to submit further evidence regarding potential exposure to an herbicide agent, if he wishes. Regarding contaminant exposure at Camp Lejeune, VA regulation provides, in pertinent part, that a veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at U.S. Marine Corps Base Camp Lejeune, North Carolina during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply. 38 C.F.R. § 3.307(a)(7). "Contaminants in the water supply" means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. Id. The agency of original jurisdiction (AOJ) has "conceded exposure to contaminated water at Camp Lejeune." See August 2018 Rating Decision. The Board will not disturb that finding. Because the Veteran has been found to have had contaminant exposure at Camp Lejeune, VA medical opinions are warranted to assess the likelihood that his kidney disease, heart condition, and/or stroke may be linked to that exposure. See 38 C.F.R. § 3.159(c). A VA medical opinion addressing the Veteran's kidney disease was provided in July 2018. However, that opinion is inadequate, as it is premised on the incorrect assumption that he does not have kidney disease, stating that there is no documentation of that condition in the records. In fact, the VA and private treatment records show diagnoses of polycystic kidney disease. Therefore, a new medical opinion must be obtained. In addition, with respect to the claim for a heart condition, a VA examination and medical opinion are warranted to determine whether any of the Veteran's current heart conditions may be linked to an in-service heart murmur. In this regard, a January 1976 service examination report reflects that his heart was evaluated as abnormal, as he had a systolic heart murmur. A February 2013 private treatment record reflects that he had been hospitalized for a racing heart. Records from UH St. John Medical Center dated in April 2020 reflect findings of palpitations and a paroxysmal atrial fibrillation with rapid ventricular response. A June 2017 private treatment record notes a finding of tachycardia, with symptoms including a rapid heartbeat. As there is at least an indication that he may have a current heart condition related to the in-service finding, VA has a duty to obtain a VA examination and medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c). The Board notes that the Veteran has submitted a March 2021 private medical opinion authored by F. Graff, M.D., P.C. The Board finds that the rationale provided is not sufficient to make an informed decision, as it does not explain why the Veteran's presumed contaminant exposure at Camp Lejeune would be linked to his specific disabilities, other than noting that it has been linked to other health outcomes, including certain cancers and Parkinson's disease. See 38 C.F.R. § 3.3.30(e). The opinion further states that noise exposure "increases the incidence of hypertension, cardiovascular disease and diminished cognitive functions," but does not explain why that supports the conclusion that the Veteran's heart conditions are therefore at least as likely as not related to his in-service noise exposure. Finally, the opinion is also based on the assumption that he had exposure to dioxin (i.e., an herbicide agent), which has not been established. Further efforts must also be made to obtain the private treatment records identified by the Veteran. In this regard, he submitted authorized release forms (VA Form 21-4142) identifying records at the office of T. Wagner, M.D., from 2000 to 2018, and University Hospitals (UH) St. John Medical Center from 1995 to 2020. However, the records from Dr. Wagner's office that have been received only date back to 2013, and St. John Medical Center only submitted records dated in April 2020. These records clearly must go back earlier. Dr. Wagner wrote in a May 2018 letter that the Veteran had been his patient for approximately ten years. His records also reference the Veteran's hospital treatment at St. John Medical Center in 2013. The Veteran stated at the January 2021 hearing that most of his private treatment records have not been obtained. Additional appropriate efforts must therefore be made to obtain any records from UH St. John Medical Center dating from 1995 to 2020, and from Dr. Wagner's office from at least 2008 to 2013. As to the Veteran's potential contaminant exposure at MCAS El Toro, it is a matter of public record that the U.S. Environmental Protection Agency (EPA) has declared that location a Superfund site. See https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0902770. EPA's website states that a total of 25 potentially contaminated areas were identified here, including four landfills suspected of containing both hazardous and solid waste, and other areas where polychlorinated biphenyls (PCB's), battery acids, leaded fuels, and other hazardous substances were suspected of being dumped or spilled. Id. That in itself does not show that he had actual contaminant exposure at MCAS El Toro. As of this date, VA has not established a presumption or issued any law or regulation regarding claims based on contaminant exposure at El Toro. On remand, he may submit evidence on that issue, if he wishes. The claim for right eye vision loss is inextricably intertwined with the claim for a stroke. Accordingly, the Board will not address the claim for vision loss at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Invite the Veteran to submit evidence regarding his claimed contaminant exposure at MCAS El Toro. 2. Make appropriate efforts to obtain any records from the following: UH St. John Medical Center from 1995 to 2020; Dr. T. Wagner (UH Westshore Primary Care) from at least 2008 to 2013. If the records are not obtained, the Veteran and his representative must be notified of that fact. 3. Obtain a VA medical opinion as to whether it is at least as likely as not that the Veteran's (1) kidney disease; (2) heart condition; and/or (3) stroke are related to his presumed contaminant exposure at Camp Lejeune. Each condition must be addressed separately. The examiner must acknowledge and discuss the Veteran's contention regarding the etiological significance of his in-service exposure to environmental toxins. In responding to this question, the examiner must acknowledge and discuss that VA has determined that, for treatment purposes, "renal toxicity is a covered disease under 38 C.F.R. § 17.400. 4. Obtain a VA medical opinion as to whether it is at least as likely as not that the Veteran has a current heart condition related to the murmur found in the January 1976 service examination. 5. If service connection for a heart condition is established, obtain a VA medical opinion as to whether it is at least as likely as not that the Veteran's stroke was caused or aggravated by his heart condition (unless his stroke can be directly linked to his Camp Lejeune contaminant exposure). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.