Citation Nr: 21009525 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-04 184 DATE: February 22, 2021 REMANDED Entitlement to service connection for a coronary artery disease, to include as due to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for a stroke as secondary to coronary artery disease is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to a stroke is remanded. Entitlement to service connection for neurobehavioral effects, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to coronary artery disease and/or a stroke is remanded. Entitlement to service connection for left lower extremity neuropathy, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to coronary artery disease and/or a stroke is remanded. Entitlement to service connection for right lower extremity neuropathy, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to coronary artery disease and/or a stroke is remanded. Entitlement to service connection for left hand neuropathy, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to coronary artery disease and/or a stroke is remanded. Entitlement to service connection for right hand neuropathy, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to coronary artery disease and/or a stroke is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to coronary artery disease and/or a stroke is remanded. Entitlement to service connection for a prostate disability, to include as secondary to coronary artery disease and/or a stroke is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1970 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Notably, a VA Form 20-0996 Request for Higher-Level Review was received on June 11, 2019, in which the Veteran elected Higher-Level Review by the Agency of Original Jurisdiction (AOJ) under the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2 (d)). Appeals of initial decisions the AOJ issued on or after February 19, 2019 are considered under the AMA system. Appeal of a legacy decision where the AOJ issued an SOC (statement of the case) or SSOC (supplemental SOC) on or after February 19, 2019 and the appellant responded by electing the AMA system within the time allowed for filing a substantive appeal will also be considered under the AMA system. Unfortunately, a review of the record reveals that initial AOJ decision and subsequent the statement of the case (SOC) for the above-listed issues were issued prior to February 19, 2019, which is the implementation date for the AMA. As such, these issues cannot be processed under the AMA framework. Rather, as the appeal has been properly perfected and certified to the Board, it will be addressed under the legacy appeals system. In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board has recharacterized and broadened his psychiatric claim as reflected on the title page to include consideration of all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Preliminary Matters At the outset the Board notes that a September 2014 rating decision denied, in relevant part, service connection for neurobehavioral effects and bilateral lower extremity neuropathy. The RO concluded that there was no current diagnosis of neurobehavioral effects and no evidence linking the Veteran’s active service, to include service at Camp Lejeune, to the neurobehavioral effects or bilateral lower extremity neuropathy, although the RO conceded exposure to contaminated water at Camp Lejeune. The Veteran did not appeal that decision. New and material evidence is generally required to reopen a previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Here, however, there is a liberalizing law creating a new evidentiary standard for which a claim of entitlement to service connection for Veterans, former reservists and former National Guard members who served at Camp Lejeune for no less than 30 days for certain diseases. Specifically, VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (last updated January 28, 2013). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride (VC), and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011) (citing the National Academy of Sciences’ (NAS)’s National Research Council (NRC)’s report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.”) Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Id., at p. 6. Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These fourteen diseases are: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. VA subsequently added non-Hodgkin’s lymphoma to the list of diseases associated with exposure to contaminated water at Camp Lejeune. Further, effective March 14, 2017, presumption of service connection is warranted for eight diseases associated with exposure to contaminated water at Camp Lejeune: adult leukemia, aplastic anemia/myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease. Since an amendment to the law was implemented after the September 2014 final decision, new and material evidence is not necessary to reach the merits of the claim. See Pelegrini v. Nicholson, 18 Vet. App. 112, 125 (2004); Spencer v. Brown, 4 Vet. App. 283, 230 (1993)(“When a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant’s claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation.” Spencer v. Brown, 4 Vet. App. 283, 288 (1993) aff’d, 17 F.3d 368 (Fed. Cir. 1994; see also Akins v. Derwinski, 1 Vet. App. 228, 230 (1991) (holding that a presumption created by statute was itself new and material evidence). Merits The Veteran asserts that his coronary artery disease, acquired psychiatric disorder, neurobehavioral effects, bilateral lower extremity neuropathy, and bilateral hand neuropathy, are due to conceded exposure to contaminated water in Camp Lejeune, North Carolina. Additionally, he asserts that his stroke is due to his coronary artery disease. Alternatively, he maintains that his acquired psychiatric disorder, neurobehavioral effects, bilateral lower extremity neuropathy, bilateral hand neuropathy, erectile dysfunction, and prostate disability are due to his coronary artery disease and/or stroke. See July 2015, May 2016, March 2017, and May 2017 VA Forms 21-4138 and November 2020 Board Hearing Transcript. July 2018 VA treatment records note diagnoses of adjustment disorder, mood disorder, sensory neuropathy, and a stroke. A December 2020 private treatment record diagnoses neurobehavioral effects, GI bleed, and chronic renal failure. Given the current diagnoses of record, his conceded exposure to contaminated water at Camp Lejeune, and the Veteran’s statements, there is an indication that his above-listed conditions may be related to active service. Thus, the Board finds that VA examinations and medical nexus opinions are necessary on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, the Board notes the December 2020 private opinion that positively related neurobehavioral effects to service; however, the opinion was conclusory in nature and provide no rationale, thus it is inadequate for rating purposes. Lastly, as the Veteran’s stroke, erectile dysfunction, and prostate claims are secondary to other issues on appeal, these claims are deferred pending the above development. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his coronary artery disease, acquired psychiatric disorder, neurobehavioral effects, bilateral lower extremity neuropathy, bilateral hand neuropathy, stroke, erectile dysfunction, and prostate disabilities. The examiner must address each of the following: (a) Diagnose any (i) heart (ii) psychiatric (iii) neurobehavioral (iv) bilateral lower extremity (v) bilateral hand neuropathy (vi) erectile dysfunction and (vii) prostate disabilities present since August 2013, to include adjustment disorder, mood disorder, sensory neuropathy, stroke, and neurobehavioral effects (see July 2018 VA treatment records and December 2020 private treatment record). If diagnoses of any of the above-mentioned disorders are not warranted, please reconcile your findings with diagnoses of the same in the Veteran’s VA and private treatment records. (b) For each (i) heart (ii) psychiatric (iii) neurobehavioral (iv) bilateral lower extremity and (v) bilateral hand neuropathy disorder diagnosed in part (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in service or is otherwise related to service, to include as a result of conceded exposure to contaminated water in Camp Lejeune. In addressing exposure to contaminated water in Camp Lejeune, the examiner is advised that the fact that a given disability is not one that VA has conceded is presumptively related to such exposure cannot be used as the sole basis for a negative opinion; instead, please provide a discussion of whether such a relationship is “medically plausible.” Otherwise, the opinion will be rendered inadequate. (c) If and only if coronary artery disease is service-connected in part (b), then please also opine as to whether it is at least as likely as not (50 percent or greater probability) that stroke is (i) proximately due to or (ii) has been aggravated (worsened) by coronary artery disease. (d) If and only if coronary artery disease and/or stroke is service-connected in part (b) or (c), then please also opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed (i) acquired psychiatric disorder (ii) neurobehavioral effects (iii) bilateral lower extremity neuropathy (iv) bilateral hand (v) erectile dysfunction and (vi) prostate disability is (i) proximately due to or (ii) has been aggravated (worsened) by coronary artery disease and/or stroke disabilities. A separation opinion for each diagnosed secondary disorder noted above and a comprehensive rationale must be furnished for all opinions expressed. Two opinions: one for proximate cause and one for aggravation are required for each secondary disability. The examiner should note that the primary disability, coronary artery disease or stroke, need not be service-connected, or even diagnosed, at the time the resultant disability was incurred and reliance on this fact will render the opinion inadequate. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.