Citation Nr: 22015342 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-57 541 DATE: March 17, 2022 REMANDED Entitlement to service connection for a kidney condition, to include kidney stones is remanded. Entitlement to service connection for rheumatoid arthritis is remanded. Entitlement to service connection for osteomyelitis is remanded. Entitlement to service connection for osteoporosis is remanded. Entitlement to service connection for a gastrointestinal (GI) condition is remanded. Entitlement to service connection for pulmonary fibrosis is remanded. Entitlement to service connection for pneumonia is remanded. Entitlement to service connection for a heart condition, to include congestive heart failure is remanded. Entitlement to service connection for type two diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from July 1972 to July 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran passed away on May 4, 2021. His surviving spouse has been substituted as the appellant in this appeal. See August 2021 Substitution Decision. 1. Kidney Condition, Rheumatoid Arthritis, Osteomyelitis, Osteoporosis, and a GI Condition When VA undertakes to provide an examination for a claim for service connection, even if not statutorily obliged to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21Vet. App.303 (2007). Following the Board's October 2019 remand directives, the RO ordered three sets of examinations or medical opinions on these claims between December 2019 and October 2021. Unfortunately, the Board finds that none of the medical nexus opinions obtained on remand are adequate, and therefore a new remand is necessary. The first set of VA examinations and medical nexus opinions were obtained in December 2019 and rest mostly on conclusory rationales. For example, the examiner stated that the Veteran's rheumatoid arthritis was not related to his Camp LeJeune contaminated water (CLCW) exposure, because "there is no direct correlation between exp[osure] to contaminants at Camp LeJeune and the secondary development of [rheumatoid arthritis]." See December 2019 VA Rheumatoid Arthritis Medical Opinion. This is merely a restatement of the conclusion, rather than a reason supporting the conclusion. A second set of VA medical nexus opinions were obtained in May and June 2020. Although the "rationale" section of these opinions included voluminous generic discussion of the literature on CLCW and the Veteran's conditions, it contained almost no discussion of the Veteran's particular case. The mere fact that studies do not show an association between CLCW and the Veteran's conditions does not mean that an association does not exist in the Veteran's particular case. VA obtained a third set of medical nexus opinions in October 2021, following the Veteran's death in May 2021. Like the first two sets of opinions, these opinions were all supported by inadequate rationales, stating only that the claimed conditions were neither noted in service nor included on the list of presumptive diseases associated with exposure to CLCW, under 38 C.F.R. § 3.309(f). Neither of these is conclusive evidence that the Veteran's conditions are not related to his active duty service, since a disease caused by exposure to CLCW could manifest after service, and since the list of presumptive diseases in 38 C.F.R. § 3.309(f) does not preclude service connection for other diseases on a facts-found basis. See 38 C.F.R. § 3.303. Finally, VA also obtained an addendum opinion on the Veteran's claim for service connection for a kidney condition in August 2020 from the author of the December 2019 kidney opinion, to cure a contradiction in that opinionthe examiner had checked the box indicating a positive nexus opinion, but provided a rationale implying a negative opinion. Unfortunately, the addendum opinion obtained was also self-contradictory, though in a different way. The examiner stated in her rationale that "there is no current link with renal disease and exposure at Camp LeJeune except for renal and bladder at this time" (emphasis added). It seems likely this statement represents a mistake of some kind on the part of the examiner. However, as it is, it is impossible for the Board to discern with any confidence what the examiner's intended meaning is. Therefore, the Board finds that this opinion is, like the others, inadequate. Therefore, in light of the unfortunate fact that each of the many opinions obtained by the RO on remand is inadequate, a new remand is necessary now to obtain new medical nexus opinions in support of the appellant's claims. 2. Pulmonary Fibrosis, Pneumonia, a Heart Condition, and Diabetes Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim pending the adjudication of the inextricably intertwined claims. See Harris v. Derwinski, 1Vet. App.180 (1991). The Veteran is claiming entitlement to service connection for pulmonary fibrosis, pneumonia, a heart condition, and diabetes as secondary to his claimed rheumatoid arthritis. Therefore, the disposition of these claims is inextricably intertwined with the outcome of his claim for service connection for rheumatoid arthritis. Accordingly, because the Veteran's claims for service connection for pulmonary fibrosis, pneumonia, a heart condition, and diabetes hinge on the adjudication of his claim for service connection for rheumatoid arthritis, the Board cannot adjudicate these claims apart from that issue. Accordingly, these claims are remanded pending the adjudication of the claim for service connection for rheumatoid arthritis. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination in support of his claims for service connection for a kidney condition, rheumatoid arthritis, osteomyelitis, osteoporosis, and a gastrointestinal (GI) condition. Upon thorough review of the claims file and physical examination of the Veteran, the examiner should respond to the following: (a.) Please list each kidney-related diagnosis the Veteran has had during the claim period (since January 25, 2012). For each noted kidney condition, is it at least as likely as not (50 percent probability or more) that the Veteran's condition had its onset in or is otherwise related to his active duty service, to include exposure to contaminated water at Camp LeJeune? Please note that that the Board is aware of the following facts, and any rationale consisting of them alone, without more, will not be considered adequate: i. The claimed condition was not manifest in service; and ii. The claimed condition is not a presumptive disease associated with exposure to contaminants in the water supply at Camp LeJeune, under 38 C.F.R. § 3.309(f). An adequate rationale must assess the possibility that the Veteran's claimed condition, despite not being noted in service or included in the list of presumptive diseases associated with exposure to contaminants in the water supply at Camp LeJeune, nevertheless was caused by exposure to Camp LeJeune contaminated water. Such an assessment should include: 1) a medical explanation of why the Veteran's particular condition could or could not be related to exposure to the contaminants in the water supply at Camp LeJeune, and 2) if the particular condition could be related to such exposure, a detailed medical and/or historical explanation of why the Veteran's particular condition is or is not in fact related to exposure. (b.) Is it at least as likely as not that the Veteran's rheumatoid arthritis, osteomyelitis, and/or osteoporosis had its onset in or is otherwise related to his active duty service, to include exposure to contaminated water at Camp LeJeune? For purposes of these opinions, please take into account and directly address the conclusion and reasoning of the October 2014 and July 2019 positive nexus opinions of Dr. Schifeling citing to literature supporting a relation between exposure to organic solvents and rheumatoid arthritis. Please note that that the Board is aware of the following facts, and any rationale consisting of them alone, without more, will not be considered adequate: i. The claimed condition was not manifest in service; and ii. The claimed condition is not a presumptive disease associated with exposure to contaminants in the water supply at Camp LeJeune, under 38 C.F.R. § 3.309(f). An adequate rationale must assess the possibility that the Veteran's claimed condition, despite not being noted in service or included in the list of presumptive diseases associated with exposure to contaminants in the water supply at Camp LeJeune, nevertheless was caused by exposure to Camp LeJeune contaminated water. Such an assessment should include: 1) a medical explanation of why the Veteran's particular condition could or could not be related to exposure to the contaminants in the water supply at Camp LeJeune, and 2) if the particular condition could be related to such exposure, a detailed medical and/or historical explanation of why the Veteran's particular condition is or is not in fact related to exposure. (c.) Is it at least as likely as not that the Veteran's GI condition had its onset in or is otherwise related to his active duty service, to include exposure to contaminated water at Camp LeJeune? Please note that that the Board is aware of the following facts, and any rationale consisting of them alone, without more, will not be considered adequate: i. The claimed condition was not manifest in service; and ii. The claimed condition is not a presumptive disease associated with exposure to contaminants in the water supply at Camp LeJeune, under 38 C.F.R. § 3.309(f). An adequate rationale must assess the possibility that the Veteran's claimed condition, despite not being noted in service or included in the list of presumptive diseases associated with exposure to contaminants in the water supply at Camp LeJeune, nevertheless was caused by exposure to Camp LeJeune contaminated water. Such an assessment should include: 1) a medical explanation of why the Veteran's particular condition could or could not be related to exposure to the contaminants in the water supply at Camp LeJeune, and 2) if the particular condition could be related to such exposure, a detailed medical and/or historical explanation of why the Veteran's particular condition is or is not in fact related to exposure. The examiner must provide a fully articulated medical rational for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, 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.