Citation Nr: A21019792 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 190819-21611 DATE: December 13, 2021 REMANDED Entitlement to service connection for neurobehavioral effects is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to September 1969. The rating decision on appeal was issued in June 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In June 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the June 2019 decision. In July 2019, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior June 2019 decision. In the August 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2019 AOJ decision on appeal. 38 C.F.R. § 20.301. A June 2021 Court Order granted a Joint Motion for Remand (JMR) to vacate the Board of Veterans' Appeals May 2020 decision. The Court found that the Board erred when it failed to provide an adequate statement of reasons or bases. Regrettably, in this case, remand is required to correct a pre-decisional duty to assist error. Entitlement to service connection for neurobehavioral effects is remanded. The Veteran contends that he developed neurobehavioral effects due to his exposure to contaminated water while serving at Camp Lejeune. A favorable finding identified by the AOJ includes the finding that VA treatment records document various neurobehavioral effects, including carpal tunnel syndrome, headaches, dizziness, vertigo, autonomic neuropathy, anxiety disorder and major depressive disorder. See June and July 2019 rating decisions. Thus, the record includes competent evidence of a current disability and/or persistent or recurrent symptoms of a disability. Another favorable finding identified by the AOJ includes that the Veteran was exposed to chemicals in the water supply at Camp Lejeune based on his service at Camp Lejeune from approximately April 3, 1969 to September 23, 1969. See July 2019 RD. This favorable finding establishes an in-service event. Finally, the record indicates that the Veteran's currently diagnosed neurobehavioral effects may be associated with his military service, to include his exposure to contaminated water at Camp Lejeune. Specifically, a 2009 National Research Council (NRC) report on contaminated water at Camp Lejeune found that there was limited/suggestive evidence of an association between exposure to mixed solvents and "neurobehavioral effects," to include symptoms of fatigue, lack of coordination, sensory disturbances, confusion, depression, tension, trouble concentrating, and headache; alterations in neurobehavioral tests that indicate deficits in attention, reaction time, visuomotor coordination, motor function, digit symbol, and contrast sensitivity; and certain neuropsychological disorders such as learning or behavioral disorders. Based on the above, the Board finds that the standard set forth in McLendon v. Nicholson, 20 Vet. App.79, 84 (2006) regarding when VA is required to afford the Veteran a VA examination/or medical opinion has been met. Here, there is evidence of a current disability, an in-service event, and an indication that the Veteran's current disabilityneurobehavioral effects, may be associated with his active duty service, specifically, contaminants in the water supply at Camp Lejeune. The Board cannot resolve the question of whether service connection for neurobehavioral effects is warranted without a medical opinion; accordingly, a remand is warranted to obtain one. See McLendon, 20 Vet. App. 79 at 84. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any disability manifested by neurobehavioral effects. The examiner must review the claims file and respond to the following questions: A. Does the Veteran have a diagnosed disability manifested by neurobehavioral effects? The examiner should clearly identify and describe each disability manifested by neurobehavioral effects. He must discuss any neurobehavioral symptoms and/or disorders reported in VA treatment records, to include carpal tunnel syndrome, headaches, dizziness, vertigo, autonomic neuropathy, generalized anxiety disorder and major depressive disorder. See May 2019 VA treatment records, problems list. B. As to each diagnosed disability manifested by neurobehavioral effects, the examiner must opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's disability manifested by neurobehavioral effects was incurred in, or otherwise related to the Veteran's active service, to include exposure to contaminated water at Camp Lejeune. The examiner is advised that a negative opinion cannot be based solely on the fact that neurobehavioral effects are not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.