Citation Nr: 21024971 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-11 845 DATE: April 27, 2021 REMANDED 1. Entitlement to service connection for a brain tumor, to include as due to exposure to contaminated water supply at Camp Lejeune, is remanded. 2. Entitlement to service connection for a disability manifested by seizures, to include as secondary to a brain tumor, is remanded. 3. Entitlement to service connection for right ear hearing loss, to include as secondary to a brain tumor, is remanded. REFERRED In September 2015, the Board referred to the agency of original jurisdiction (AOJ) a claim of service connection for an acquired psychiatric disability (raised in a June 2015 statement). A review of the claims file found that although the Veteran was afforded a mental health examination in January 2020, no further action (i.e. issuance of a rating decision) was taken. Accordingly, the matter is again referred to the AOJ for appropriate action. 38 C.F.R.§19.9(b). REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1976 to February 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision. In September 2015, the case was remanded for additional development. An interim (March 2017) rating decision granted service connection for left ear hearing loss, and that matter is no longer before the Board. In November 2018, the case was again remanded for additional development. The Board regrets further delay, but unfortunately, it finds that the November 2018 remand instructions were not adequately fulfilled. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a brain tumor, to include as secondary to exposure to contaminated water at Camp Lejeune. On January 2017 VA examination, the examiner opined that the Veteran’s brain tumor was less likely than not related to service, and his rationale simply noted that brain tumors and schwannomas are not listed by VA as presumptive diseases associated with exposure to contaminated water at Camp Lejeune, NC. While the case was on remand, an undated private medical statement from the Veteran’s primary care physician was added to the claims file. [Although it contains a July 2015 Regional Office ‘Triage’ date stamp, it apparently was not received by the VA Claims Intake Center until November 2015.] The physician reports that the Veteran has a seizure disorder, chronic headaches, and depression that are secondary to his brain tumor. The physician opined that it was at least as likely as not that “the original Acoustic Neuroma and Depression that the Veteran suffers was caused from the contaminated drinking water at Camp Lejeune, NC.” She explained, “According to the research, the contaminated water at Camp Lejeune can cause neurobehavior changes such as depression. There is remote possibility that the exposure to water contaminated has contributed to [the Veteran’s] depression.” In November 2018, the Board found that both opinions were inadequate for rating purposes because they were conclusory and lacked adequate rationale. The VA examiner’s opinion was based merely on the absence of brain tumors in VA’s list of presumptive diseases associated with exposure to contaminated water at Camp Lejeune, and the private opinion was apparently based on unidentified research that contaminated water at Camp Lejeune can cause neurobehavior changes and that there is a remote possibility that the Veteran’s disabilities are related to such exposure. On January 2020 VA examination, the examiner opined that it was less likely than not that the Veteran’s brain tumor was related to exposure to contaminated water at Camp Lejeune. The examiner provided a description of schwannomas and indicated that although it was not clear if the Veteran’s schwannoma was malignant or benign, the available records suggested that it was benign, and noted that the Veteran was exposed to several different carcinogens while stationed in Cape Lejeune, to include Trichloroethylene, Perchloroethylene, benzene, and vinyl chloride. She explained that since schwannomas were almost always benign (although they rarely may become cancerous) and that the Veteran’s schwannoma appeared to be benign, “a nexus has not been established.” The opinion is inadequate because it is speculative and did not adequately address the remand directives (i.e. the Veteran’s brain tumors were not properly identified, and a likely etiology was not provided for each of the brain tumors). Therefore, another examination to obtain an adequate medical advisory opinion is necessary. 2., 3. Entitlement to service connection for a disability manifested by seizures and for right ear hearing loss. On January 2020 VA examination, the examiner opined that it was less likely than not that the Veteran’s seizures were related to his exposure to contaminated water at Camp Lejeune, but they were related to his right CP angle vestibular schwannoma because “seizures are common in patients with brain tumors.” The examiner also opined that it was more likely than not that the Veteran’s right CP angle vestibular schwannoma with subsequent resection and gamma knife treatment caused the right ear hearing loss. The Board finds both opinions inadequate because they are cursory and lack (any) rationale. Regardless, based on the explanations provided, the matters of service connection for a disability manifested by seizures and for right ear hearing loss are inextricably intertwined with the claim seeking service connection for a brain tumor. Therefore, appellate consideration of those matters must be deferred pending resolution of the other remanded claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Secure for the record all updated (since January 2020) records of VA evaluations and treatment the Veteran has received for the here claimed disabilities. 2. Ask the Veteran to provide identifying information regarding any (and all) private evaluations or treatment he has received for the claimed disabilities (records of which have not already been submitted), and to submit authorizations for VA to secure for the record complete outstanding clinical records from all providers identified. Obtain those records. 3. Thereafter, arrange for a neurological examination (with toxicological and audiological/otologic consultations if necessary) of the Veteran (by an appropriate clinician other than the January 2020 examiner, e.g. a neurologist, if possible) for an advisory opinion the nature and likely etiology of his brain tumor(s) and seizures. The entire record (including this remand) must be reviewed by the examiner in conjunction with this examination. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify the nature and likely etiology of the Veteran’s brain tumor(s), indicating whether he has one or multiple (and various) brain tumors (as the record shows diagnoses of a right sided schwannoma, a right acoustic neuroma, and a cerebellopontine angle tumor). (b) Identify the likely etiology of each brain tumor diagnosed, indicating specifically whether it at least as likely as not (a 50 percent or better probability) is etiologically related to the Veteran’s service, to include his exposures to contaminants in water at Camp Lejeune including trichloroethylene (TCE), perchloroethylene (PCE), benzene, or vinyl chloride (VC). If the opinion is that a diagnosed brain tumor was not incurred in service, to include due to exposure to contaminated water at Camp Lejeune, identify the etiology that is considered more likely. The examiner is advised that the sole basis for a negative opinion cannot be the fact that brain tumors/schwannomas are not listed by VA as presumptive diseases associated with exposure to contaminated water at Camp Lejeune, NC. (c) Identify the likely etiology of the Veteran’s seizures. Specifically, is it at least as likely as not that they are related to his exposure to contaminated water at Camp Lejeune, or were caused or aggravated (the opinion must address aggravation) by his brain tumor(s). (d) If the opinion is that the Veteran’s seizures were not incurred in service (and not caused or aggravated by a brain tumor), identify the etiology that is considered to be more likely. (e) Identify the likely etiology of the Veteran’s right ear hearing loss. Specifically, is it at least as likely as not that it was caused or aggravated (the opinion must address aggravation) by his brain tumor(s). (f) If the opinion is that the Veteran’s right ear hearing loss was not caused or aggravated by a brain tumor, identify the etiology that is considered to be more likely. The examiner must include rationale with all opinions provided, citing to factual data and medical principles as deemed appropriate (citation to medical texts would be helpful). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.