Citation Nr: 21024820 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-14 796A DATE: April 26, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, diagnosed as bipolar disorder and claimed as neurobehavioral effects, to include as due to contaminated water at Camp Lejeune (CWCL), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from September 1974 to January 1977, including service at Camp Lejeune. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (AOJ). First, the Board acknowledges the March 2021 phone request for an extension, but the Veteran did not report how long of an extension he needed. Regardless, as that request was made on March 8, 2021, it has been over 6 weeks since the request prior to this decision; further, as the Board is remanding the matter (see below), the Veteran is not prejudiced in any way as he may submit new evidence prior to re-adjudication of the claim following this remand. Next, by way of history, the Veteran’s psychiatric claim was previously denied in an April 2019 Board decision, which the Veteran appealed to the Court of Appeals for Veterans Claims (the Court). In March 2020, the Court granted a Joint Motion for Remand (JMR) and vacated the April 2019 Board decision pertaining to the Veteran’s psychiatric claim and remanded such claim for further development, including an additional VA psychiatric examination. Thereafter, in November 2020, the Board remanded the claim to obtain any outstanding private medical records, Social Security Administration (SSA) records, and for a new VA examination and medical opinion that complies with the JMR. Unfortunately, although the Board regrets the additional delay, another remand is necessary to ensure due process and proper development regarding the Veteran’s claim. While the Veteran’s medical records were obtained, and his file shows notice from SSA in January 2021 that the SSA records have been destroyed, and the RO gave the Veteran the opportunity to submit those records himself, the Board finds that the January 2021 VA examiner did not substantially comply with the Board’s remand instructions. Thus, the Board must again remand the matter. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the Board appreciates the opinion provided by the January 2021 examiner, he is not a subject matter expert concerning Camp Lejeune claims. The RO ordered a generic service connection opinion, so while the examiner may be an expert in his field, the RO did not order a Camp Lejeune review and the examination report and opinion was not completed by a medical professional with the specialized knowledge needed. Further, simply stating a condition is not on the list of those presumptively associated with contaminated water is not a sufficient rationale for a negative opinion. Rather the opinion must specifically consider the Veteran’s medical history and risk factors. However, the January 2021 examiner relied, in part, on the fact the claimed condition is not presumptively associated with Camp Lejeune exposures. As the opinion did not provide a rationale or discussion as requested, the examiner’s opinion is not fully adequate to allow for just adjudication of the claim. On remand, the RO should obtain a new medical opinion as to the etiology of the Veteran’s bipolar disorder from an appropriate expert in Camp Lejeune cases. The matter is REMANDED for the following action: Obtain a new medical opinion regarding the etiology of the Veteran’s bipolar disorder from an examiner who specializes in claims based on exposure to contaminated water at Camp Lejeune. The expert should opine on the following: whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bipolar disorder is etiologically related exposure to contaminated water at Camp Lejeune. The expert is asked to specifically address the Veteran’s service at Camp Lejeune for over two years; prior to service, he had no mental health or behavioral issues; his initial military duty conduct scores were ranked on the higher end, but then declined towards the end of his service indicating a change in behavior; the June 1976 court martial; the Veteran’s submitted article from National Research Council that “effects of long-term occupational exposure to TCE include memory loss, mood swings, impairment of cognitive function, and olfactory and trigeminal neuropathy”; and the 2021 VA examiner’s opinion which included that “bipolar condition is not acquired through his time in service but rather is a family condition genetically linked through different family members of three generations.” Again, the Boards notes that it is not sufficient to merely state that a condition is not on the list of diseases presumed to be associated with contaminated water at Camp Lejeune, but instead, requests that a full rationale for any relationship between the Veteran’s current disorder and exposure to toxins in service must be discussed. The expert should specifically discuss this particular Veteran’s medical history and risk factors. The January 2021 examiner noted VA does not recognize neurobehavioral effects as presumptively linked to Camp Lejeune exposures. While that is technically correct, there are two different sets of statutory and regulatory provisions applicable to these claims. One set (38 U.S.C. § 1710(e)(1)(F); 38 C.F.R. § 17.400) provides that veterans are eligible for hospital care and medical treatment for a list of fifteen (15) conditions, while the other set (38 C.F.R. §§ 3.307(a)(7), 3.309(f)) provides a presumption of service connection for eight (8) disabilities. While there is some overlap, the list of conditions for which medical treatment is available is more inclusive. The health care regulation states these additional conditions are “assumed” to be attributable to the Veteran’s service (unless it is determined that the condition resulted from a cause other than service) – yet they are not presumptive – and the list includes neurobehavioral effects. It is for this reason that a thorough opinion is needed in this case. Rationale must be provided for the opinions proffered. If the expert determines that a requested opinion is not possible without resort to mere speculation, then the expert must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.