Citation Nr: 21009195 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-18 819 DATE: February 19, 2021 REMANDED Entitlement to service connection for diabetes, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a kidney disability, to include as due to exposure to contaminated water and as secondary to diabetes, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 and February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In June 2020, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for diabetes, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. In February 2020, the Veteran submitted a medical opinion from his primary physician. Citing several studies, the Veteran’s doctor opined that while the medical research was “not conclusive” his diabetes was due “at least in part” to his contaminated water exposure at Camp Lejeune. Finding the opinion too speculative, the Board remanded the claim to obtain a more definitive medical opinion and directed the examiner to address the supporting studies the Veteran’s doctor relied on. In August 2020, the examiner rendered a negative nexus opinion, but absent from the opinion is a discussion of the studies. They are not mentioned in the rationale. Nor are they listed in the evidence or literature review. In fairness to the examiner, the directive does not appear to have been included in the post-remand AOJ request for an exam. Because the Board’s remand directives were not substantially complied with, remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a kidney disability, to include as due to exposure to contaminated water and as secondary to diabetes, is remanded. In July 2015, the examiner opined that the Veteran’s diabetes is “by far” the most likely reason for his kidney disability. The Veteran’s primary physician concurred. As a result, the Board finds that the record reasonably raises the issue of secondary service connection for a kidney disability secondary to diabetes. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Because a decision on the Veteran’s diabetes claim could significantly impact his kidney claim, the issues are inextricably intertwined, and remand of both is required. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Remand is further warranted to consider new medical evidence associated with the claims file. In response to the September 2020 Supplemental Statement of the Case (SSOC), the Veteran submitted a chapter on renal toxicity from the National Academy of Sciences’ Review of VA Clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation. The Veteran’s representative relied on the NAS report in the December 2020 Informal Hearing Presentation (IHP) supporting his claim and cited a morbidity study by the Agency for Toxic Substances and Disease Registry (ATSDR). VA received this new evidence after the examiner submitted her opinion, meaning that she could not have considered it. As such, remand is warranted to obtain an addendum medical opinion that considers the relevant and potentially favorable medical evidence of record. Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Arrange for an appropriate healthcare provider to review the Veteran’s claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes is related to contaminated water exposure during service. The examiner must address the studies cited by the Veteran’s primary physician in his medical opinion received by VA in February 2020. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. If the examiner finds the Veteran’s diabetes related to his contaminated water exposure, the examiner should provide an opinion whether it is at least as likely as not (50 percent probability or greater) that his kidney disease was (A) caused or (B) aggravated beyond its normal progression by his diabetes. Aggravation means an increase in disability—any additional impairment of earning capacity—of the Veteran’s kidney disease. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability before aggravation by the Veteran’s diabetes. 4. Arrange for an appropriate healthcare provider to review the Veteran’s claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s kidney disease is related to contaminated water exposure during service. The examiner must address the NAS report submitted by the Veteran in November 2020 and the ATSDR study cited by his representative in the December 2020 IHP. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.