Citation Nr: 21013901 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-04 334 DATE: March 10, 2021 ORDER Entitlement to service connection for non-Hodgkin lymphoma due to Camp Lejeune Contaminated Water (CLCW) is granted. REMANDED Entitlement to service connection for post phlebitis syndrome, claimed as bilateral leg edema and ulcers, is remanded. FINDING OF FACT 1. The Veteran has a current diagnosis of non-Hodgkin lymphoma, which has been active during the pendency of the claim. 2. The Veteran was stationed at Camp Lejeune, North Carolina for at least 30 days during his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for non-Hodgkin lymphoma due to CLCW have been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to January 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and May 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for non-Hodgkin lymphoma is granted. The Veteran seeks service connection for non-Hodgkin lymphoma, which he contends is due to exposure to contaminated water at Camp Lejeune (CLCW). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. During the pendency of the appeal, the regulations regarding presumptive service connection at 38 C.F.R. §§ 3.307, 3.309 were amended to include a presumption of service connection for certain diseases for veterans, former reservists, and former National Guard members who were exposed to contaminants in the water supply while serving at U.S. Marine Corps Base Camp Lejeune, North Carolina, for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987. Specifically, following the Agency for Toxic Substances and Disease Registry’s (ATSDR) January 2017 publication of “Assessment of Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases,” 38 C.F.R. § 3.309 (f) was amended, effective March 14, 2017, to provide a presumption of service connection for kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer, which have become manifest to a degree of 10 percent or more at any time after service if the Veteran was stationed at Camp Lejeune between August 1, 1953 and December 31, 1987. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina during the requisite period. The regulation applies to all claims pending before VA on and after March 14, 2017. The Board finds presumptive service connection for non-Hodgkin lymphoma based on exposure to CWCL is warranted. The Veteran’s service records show that he was stationed at Camp Lejeune during the applicable time period for more than 30 days. His February 2014 VA examination indicates he was stationed there for 140 days. Further, medical evidence of record demonstrates a diagnosis of non-Hodgkin lymphoma and treatment for the condition such that it manifested to a degree of 10 percent since the Veteran’s separation from service. Private medical records from 2008 note a diagnosis of lymphoma with history of recurrence. Additional records from 2010 show the Veteran underwent chemotherapy to treat the condition. Private medical records from November 2013 note an active/chronic malignant lymphoma condition. The Veteran’s February 2014 VA examination confirms a diagnosis of chronic lymphocytic leukemia, a subtype of non-Hodgkin lymphoma. 38 C.F.R. § 3.307(a)(7)(ii). As the Veteran was stationed at Camp Lejeune during the requisite time period, had presumed exposure to contaminants in the water supply, and has a current diagnosis of non-Hodgkin lymphoma that has manifested to a compensable degree, presumptive service connection for non-Hodgkin lymphoma is warranted. 38 C.F.R. § 3.309(f). REASONS FOR REMAND 1. Entitlement to service connection for post phlebitis syndrome, claimed as bilateral leg edema and ulcers, is remanded. The Board finds another VA examination is warranted before adjudicating this claim. The Veteran’s service treatment records reflect treatment for skin problems affecting his legs. Various diagnoses were given including dermatitis, contact dermatitis, and eczema; however, no chronic skin disorder was noted during the physical examination at discharge. Post-service private treatment records from November 2013 indicate treatment for various conditions affecting the Veteran’s legs, including post-phlebitis syndrome, deep vein thrombosis, and varicose veins with ulcer. The question is thus whether the Veteran’s current bilateral leg skin condition is related to his military service. The Veteran was provided a VA examination on the etiology of his claimed bilateral leg skin condition in May 2014, to answer this question. The examiner diagnosed the Veteran with leg ulcers by history. The Veteran reported swelling, pain, and ulcers off and on in both legs and the use of stockings for the past 20 years. The examiner concluded the Veteran’s bilateral leg skin condition to be less likely than not related to his military service. The opinion reads: “[September 7, 1975]: Sores on legs since child hood. STRs silent for aggravation. RAD (separation) exam: silent for any skin or knee/legs condition.” The Board finds this opinion inadequate for three reasons. First, it appears the examiner concluded that the Veteran’s skin condition pre-existed service without making the prerequisite finding for such a conclusion. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 C.F.R. § 3.304 (b); see 38 U.S.C. §§ 1111, 1132. Only such conditions as are recorded in examination reports are to be considered as noted. Id. Here, the Veteran’s November 1974 enlistment examination does not note the presence of scars or skin conditions. Thus, the Veteran must be considered sound upon entrance and without such conditions prior to service. For the examiner to have relied on the conclusion that the Veteran’s skin condition has existed since childhood, the examiner would have had to make the formal and supported finding that the Veteran’s skin condition clearly and unmistakably (undebatable) pre-existed service. Second, the examiner’s opinion is based on inaccurate facts. Contrary to the examiner’s record review, the Veteran’s October 1976 separation examination revealed the presence of marks and scars. Third, the examiner’s opinion as to aggravation is not an opinion, but an unsupported conclusion. Moreover, it does not address the repeated treatment the Veteran received for his skin during service. Adequate medical opinions require not only conclusions and supporting data, but a reasoned medical explanation connecting the two. Thus, the Veteran’s May 2014 examination is inadequate, and he must be provided another VA examination on the etiology of his bilateral leg skin condition. The matter is REMANDED for the following actions: Obtain a medical nexus opinion regarding the nature and etiology of the claimed bilateral leg skin condition from an appropriate clinician. The claims file and a complete copy of this remand must be made available to the examiner. If feasible, and deemed necessary by the examiner, schedule the Veteran for a VA examination. The examiner must elicit a full history from the Veteran regarding the onset of his skin disability. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology. After review of the file and examination on the Veteran: (a) The examiner should identify any and all chronic skin conditions present in the medical records since the service connection claim was filed in December 2013 and at the current physical examination. (b) The examiner should offer an opinion as to whether any current skin condition (including, but not limited to: post-phlebitis syndrome, deep vein thrombosis, and varicose veins with ulcer) clearly and unmistakably (undebatable) pre-existed service. The examiner is advised that the Veteran’s November 1974 enlistment examination report shows a skin condition was not noted upon entrance to service. Thus, if a current skin condition is found to have preexisted service, the examiner should explain the basis for such finding. (c) If the examiner determines that the Veteran’s skin condition pre-existed military service, determine whether it is a congenital defect or disease. For purposes of answering this question, the examiner advised that a congenital defect is static in nature, such that it is incapable of improvement or deterioration; and a congenital disease is progressive in nature, such that it can worsen over time. (d) If it is a defect, is it at least as likely as not that there is any superimposed disease or injury in connection with the congenital defect, and if so, whether it is at least as likely as not that any identified superimposed disease or injury is related to active service that resulted in an additional skin condition? (e) If it is a disease, is it at least as likely as not that the condition was aggravated (increased in severity) during his active service? (Aggravation is defined as a worsening of the underlying condition as compared to an increase in symptoms. Intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition must have worsened.) If so, is there clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability? (f) If there is no clear and unmistakable evidence that the Veteran’s skin condition(s) pre-existed service, is at least as likely as not that the Veteran’s skin condition(s) had clinical onset during service or is otherwise etiologically related to service? The examiner is advised that the evidentiary standard of “clear and unmistakable” requires that the evidence be “undebatable.” A complete rationale must be provided for any opinion expressed. A complete rationale is one with clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante, 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.