Citation Nr: 21024791 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-30 998A DATE: April 26, 2021 ORDER The Board, having determined that pertinent service department records were received after a prior denial of service connection for the Veteran’s carcinoma of the appendix, finds that reconsideration of the prior denial is granted. REMANDED The claim of entitlement to service connection for carcinoma of the appendix is remanded. The claim of entitlement to service connection for a low back disorder is remanded. The claim of entitlement to service connection for a kidney disorder is remanded. FINDING OF FACT Since the April 1985 and December 1996 rating decisions, the Agency of Original Jurisdiction (AOJ) has obtained relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim of entitlement to service connection for carcinoma of the appendix. CONCLUSION OF LAW The criteria for reconsidering the Veteran’s claim of entitlement to service connection for carcinoma of the appendix have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Marine Corps from September 1965 to October 1968. In August 2018, this case was remanded for additional development. Reconsideration Generally, a claim that has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). However, if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include, but are not limited to: (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. See 38 C.F.R. § 3.156 (c)(1). Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156 (c)(2). In this case, the AOJ initially denied service connection for abdominal carcinoma in April 1985. The AOJ determined that the evidence did not show that the disorder was related to any Agent Orange exposure. In a December 1996 rating decision, the AOJ declined to reopen the claim of entitlement to service connection for carcinoma of the appendix. The Veteran did not appeal the denials or submit any pertinent evidence within the appeal period. New and material evidence would usually be required to reopen these claims. However, in January 2021, the AOJ obtained relevant service department records that were not previously of record. Specifically, United States Marine Corps Command Chronologies for the Veteran’s units were associated with the claims file. The records showed that servicemembers from the Veteran’s unit were routinely sent to the Republic of Vietnam on temporary duty assignments or for combat support purposes. Therefore, pursuant to 38 C.F.R. § 3.156 (c)(1), new and material evidence is not necessary, and reconsideration of the claim of entitlement to service connection for carcinoma of the appendix is required. REASONS FOR REMAND 1. The claim of entitlement to service connection for carcinoma of the appendix is remanded. The Veteran asserts that he developed adenocarcinoma of the appendix as a result of in-service exposure to contaminated waters at Camp Lejeune. He also contends that his disorder was the result of exposure to herbicides. The Veteran’s personnel records showed that the Veteran was stationed at Camp Lejeune from September 1966 to November 1966 and from June 1967 to July 1967. November 1977 private treatment records showed that the Veteran was found to have adenocarcinoma of the appendix with involvement of the bladder and colon. In a December 1981 examination, the Veteran reported exposure to toxic chemicals when he was stationed in Okinawa and when he was in Vietnam for three days. An October 1996 VA examination report indicated that the Veteran was stationed at Futenma military base in Okinawa and that Agent Orange was shipped from there to Vietnam. The Veteran stated that he was in Vietnam for three or four days to inspect electronic gear. He reported a history of bladder cancer in 1977. The primary site of his cancer was unclear to the examiner. A VA medical opinion was provided in May 2014. A diagnosis of adenocarcinoma of the gastrointestinal tract involving the appendix was confirmed. The examiner opined that the diagnosis was less likely than not caused by or a result of the Veteran’s exposure to contaminants at Camp LeJeune. Initially, it was noted that the Veteran was not diagnosed with bladder cancer. Instead, his diagnosis was adenocarcinoma of the gastrointestinal tract with invasion of the bladder, which is a condition that is not associated with contaminants found at Camp Lejeune. The examiner explained that the risk of developing intestinal cancers increase with age, inflammatory bowel disease, a personal or family history of colorectal cancer or colorectal polyps, genetic syndromes such as familial adenomatous polyposis, or hereditary nonpolyposis colorectal cancer. It was also noted that certain lifestyle factors were associated with an increased risk of colorectal cancer. Specifically, lack of regular physical activity, low fruit and vegetable intake, a low fiber and high-fat diet, overweight, and alcohol use. The examiner stated that neither cancer of the small intestine nor cancer of the large intestine are among the conditions linked to exposure to volatile solvents found in the Camp Lejeune drinking water. It was noted that the Veteran reported drinking heavily after bootcamp and continued for 25 years. In March 2020, the Veteran continued to describe his claimed Agent Orange exposure during service. He reported exposure while he was stationed at Futenma military base. He stated that there was liquid that leaked from barrels labeled with orange stripes. He also reported that he completed training exercises in the northern part of Okinawa where defoliants were dumped. Finally, he reported that his unit allowed servicemembers to go on temporary duty assignments to Vietnam to check communication equipment and determine whether a repair was needed. He explained that the trips usually lasted three days and included the last day of one month and the beginning of another month so as to receive two months of combat pay. In January 2021, the VA received the United States Marine Corps Command Chronologies for the Veteran’s units. Specifically, the unit records for the 3rd Force Service Regiment’s Electronic Maintenance Company from August 1967 to May 1968 and the 3rd FSR’s Supply Company from June 1968 to August 1968. A review of the unit history records showed that members of the Veteran’s units completed temporary duty assignments to the Republic of Vietnam. Some of the servicemembers who were on temporary duty assigment to the Republic of Vietnam were listed by name, others that were sent for combat support were not listed by name. The chronologies showed that members of the Veteran’s unit were sent to the Republic of Vietnam for short durations as part of the inspection team, a technical assistant, or a courier. Based on the above, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service involved duty or visitation in Vietnam and that he was presumptively exposed to herbicides during his service. Accordingly, a remand is required to obtain a VA medical opinion to determine whether his carcinoma of the appendix is related to service, to include his exposure to herbicides. 2. The claim of entitlement to service connection for a low back disorder is remanded. The Veteran asserts that he initially injured his low back during service when he fell off a 20-foot cliff while stationed in Okinawa. He contends that he re-injured his back in a work-related injury in 1974. The Veteran’s service treatment records do not document the Veteran’s claimed back injury. However, August 1968 service treatment records from the orthopedic clinic showed that the Veteran had been discharged from the hospital that month. He was granted a temporary profile for a right arm injury, a contusion of the left hip, and a left ankle injury. In December 1970, the Veteran filed a claim for service connection for a broken right arm sustained during the in-service fall. Notably, he did not file a claim for a back injury sustained during such fall. Medical records showed that he underwent a lumbar laminectomy in 1974 following a work-related railroad accident. In April 1975, the Veteran’s former employer requested his service treatment records and noted that the Veteran sustained a broken right arm and other injuries when he fell off a rock at a beach party in Okinawa. The Veteran was hospitalized at Camp Kue Hospital in Okinawa. In March 1981, the Veteran reported that he became totally disabled in December 1973 due to a back injury. He stated that he subsequently underwent corrective surgery and received disability from the Social Security Administration (SSA) for one year. The Veteran was afforded a VA examination in October 1981. He reported that he injured his back in 1973 while working on a railroad. He underwent lumbar spine surgery in 1974 and reported ongoing back pain since then. A lumbar spine x-ray revealed a laminectomy defect, L5. It was noted that the Veteran stopped working in 1973 as a result of his back surgery. The Veteran also reported several in-service orthopedic complaints. He stated that in 1968 he bruised his left hip, sprained his left ankle, injured his upper arm, fractured his left wrist, and injured his right arm. He did not mention an in-service back injury. During a February 1991 VA examination, the Veteran reported a history of chronic low back pain following the in-service fall. He stated that his back surgery was due to a railroad injury and not due to the back injury he sustained during service. In an October 1998 statement, he reported that he initially injured his back during the in-service fall and then reinjured his back after service. Private treatment records documented his reports of a long history of back pain and a fusion of the lumbar spine done 25 years prior. A November 1998 x-ray revealed degenerative joint disease of the lumbar spine. He described persistent pain since his 1975 lumbar spine surgery. A December 1998 private treatment record noted that the Veteran underwent a laminectomy 25 years prior due to a fall downstairs that resulted in a herniated disc. In August 2001, the Veteran indicated that he had memory problems due to a history of alcohol use. He stated that he vaguely remembered that he injured his back during service. The Veteran underwent a VA examination in June 2019. The examiner found that the Veteran’s low back disorder was less likely than not incurred in or caused by service. The rationale was that there was no evidence that the Veteran’s severe back disorder began in the military. The examiner noted the Veteran’s report of the in-service injury. However, there were no medical records of any back problems during service or any records of the claimed injury. The examiner explained that the Veteran injured his back working on a railroad, which led to the spinal fusion surgery in 1974. In July 2014, the Veteran submitted a buddy statement from his brother. The brother reported that he lived with the Veteran shortly after service and observed the Veteran wincing with certain activities. The Veteran told his brother that he sustained a back injury during service. The June 2019 VA medical opinion was based, at least in part, on the absence of service treatment records documenting his claimed in-service back injury. However, it appears that the Veteran was hospitalized at Camp Kue Hospital in Okinawa for the injuries sustained during the in-service fall. It does not appear that the AOJ requested medical records from the Veteran’s hospitalization in the summer of 1968 at Camp Kue Hospital. Accordingly, a remand is required to attempt to obtain such records. 3. The claim of entitlement to service connection for a kidney disorder is remanded. The evidence of record suggests that the Veteran’s kidney disorder is related to his carcinoma of the appendix. The August 2020 VA examination noted that the Veteran was diagnosed with carcinoma of the appendix with metastasis to the bladder and colon. As a result, he underwent a partial cystectomy, which caused him to use the bathroom frequently. He started to drink less liquid in order to control his bathroom episodes. This caused him to have frequent kidney stones. The June 2020 VA medical opinion indicated that a history of kidney stones was a risk factor for the development of chronic kidney disease. Accordingly, the Veteran’s claim of entitlement to service connection for a kidney disorder is intertwined with the issue of entitlement to service connection for carcinoma of the appendix. Therefore, further consideration of the claim of entitlement to service connection for a kidney disorder must be deferred. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include hospital records from Camp Kue Hospital in Okinawa from the summer of 1968. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise, to determine the nature and etiology of his carcinoma of the appendix. All pertinent evidence of record must be made available to and reviewed by the examiner, to include a copy of this remand. All necessary tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury, to include his exposure to herbicides (see narrative portion of this remand, above). The rationale for all opinions expressed should also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, the AOJ should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.