Citation Nr: 21031383 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-38 758A DATE: May 21, 2021 REMANDED Entitlement to service connection for renal cell carcinoma, right kidney, status post radical nephrectomy, to include as due to contaminated water exposure at Camp Lejeune, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from August 1950 to August 1954, and with the United States Air Force from August 1955 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). The claim was remanded in January 2021 for further development. It has since been returned for appellate review. A review of the claims file reveals that the claim must be remanded again. As noted in the previous Board decision, the Veteran contends that his renal cell carcinoma is due to exposure to contaminated water during his active service at Camp Lejeune. The Veteran's military personnel records show that he served there from April 18, 1952 to March 4, 1953. While in some instances presumptive service connection is warranted for those exposed to contaminants in the water supply at Camp Lejeune during the military service, the Veteran's service falls outside of the presumptive period. See 38 C.F.R. § 3.307(a), § 3.307(d), § 3.309(f). Nevertheless, service connection can be established with proof of direct causation. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303d). See also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In support of his contention that he was exposed to contaminants in the water at Camp Lejeune while training in the Hadnot Point indoor pools, the Veteran offered several articles. In March 2018, he submitted an article that indicated that the Agency for Toxic Substances and Disease Registry (ATSDR) had determined that the Marines and Naval personnel residents (including infants and children), and civilian workers were exposed to TCE, PCE, and DCE, vinyl chloride, benzene, and other contaminants in the drinking water at Camp Lejeune from the 1950s through February 1985. The article submitted in March 2018 further reported that for Marines who trained at the Hadnot Point indoor pools from 1950 to 1985, the PCE amounts also exceeded the minimum risk levels (MRLs). In the January 2021 remand, the Board directed the RO to take appropriate steps to verify the Veteran's claimed exposure. It appears the only action that was taken was requesting the Veteran submit additional information. See February 2021 subsequent development letter. The Board finds this development to be inadequate. The Veteran has provided sufficient evidence to prompt further research for verification that was not conducted by the RO, including submitting an inquiry to the Department of Defense (DoD), the previous Joint Services Records Research Center (JSRRC), and any other appropriate source. Therefore, the claim is remanded for this development. Moreover, the Veteran was evaluated during a VA examination in October 2017. The examiner indicated the Veteran had kidney removal and kidney cancer in January 2016. On the day of the examination, the Veteran was found to have renal dysfunction and a malignant neoplasm that was in remission. However, the examiner did not provide a medical opinion. The Board finds the VA examination is inadequate. Thus, another examination is necessary to determine the nature and etiology of his condition. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should conduct exhaustive development to verify the Veteran's allegations service at Camp Lejeune and exposure to contaminated water during service, particularly from training in the Hadnot indoor pools. The development includes, but is not limited to, obtaining ALL outstanding personnel records (e.g., duty locations, unit histories, military orders, etc.) and submitting inquiries with the DOD, records previously held by the JSRRC or any other appropriate sources, including providing the articles submitted by the Veteran to the sources. The AOJ must document its efforts to verify the Veteran's allegations and the results of its research in a formal finding for the record. If any records sought are unavailable, the reason for such unavailability must also be documented for the record and the Veteran and his representative must be notified. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any renal carcinoma or residuals thereof that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is as least as likely as not that the Veteran's renal carcinoma or residuals thereof is related to his military service, and if service at Camp Lejeune is verified, to include exposure to contaminated water while stationed at Camp Lejeune (notwithstanding the fact that such an association may not be presumed). In rendering this opinion, the examiner should consider the Veteran's lay statements and articles related to exposure of water contaminants at Camp Lejeune. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) (Continued on the next page) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.