Citation Nr: 22015376 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-04 744 DATE: March 17, 2022 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due to in-service exposure to contaminated water at Camp Lejeune and as due to in-service exposure to various chemicals, is remanded. Entitlement to service connection for prostate cancer, to include as due to in-service exposure to contaminated water at Camp Lejeune and as due to in-service exposure to various chemicals, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1972 to April 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. In January 2019, the Board remanded this matter for further evidentiary development. The Veteran's service treatment records (STRs) have been determined to be unavailable. See July 2020 Correspondence. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a service connection claim. Rather, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Service connection for diabetes mellitus, type II, to include as due to in-service exposure to contaminated water at Camp Lejeune and as due to in-service exposure to various chemicals The Veteran contends that he has diabetes mellitus, type II, related to his active service. He reports that he was exposed to contaminated water at Camp Lejeune and believes this exposure contributed to his diabetes mellitus, type II. At the April 2018 hearing, he also reported that he worked as a wireman in the service and would fix broken down radios and climb radio poles; that, in completing these tasks, he was exposed to chemicals like acid and asbestos; and that they were not supposed to touch some of the items with bare hands. He stated that they would have to clean up chemicals and use them for repairing radios. His DD 214 reflects a military occupational specialty (MOS) of basic operations communications man and a civilian equivalent of this position as a radio-telephone operator. He has also submitted articles about the link between toxic chemicals and the development of diabetes mellitus. The record does not indicate that VA has attempted to verify the Veteran's contended exposure to other chemicals, including asbestos, while in service. Accordingly, a remand is necessary to attempt to verify the Veteran's contended exposure to other chemicals during his service related to the nature of his MOS. The January 2019 Board remand directed the RO to obtain a VA medical opinion that addressed whether the Veteran's diabetes mellitus, type II, was related to his exposure to contaminated water at Camp Lejeune or to his reported in-service exposure to other chemicals. The Board also asked the examiner to opine whether the Veteran's diabetes mellitus was caused or aggravated by his prostate cancer. A VA medical opinion was obtained in August 2020, at which time the examiner opined that it was less likely than not that the Veteran's diabetes mellitus, type II, was caused by, or a result of, his exposure to contaminated water at Camp Lejeune. The examiner also opined that it was less likely than not due to his nonservice-connected prostate cancer and, likewise, not aggravated beyond its natural progression by such. The examiner reviewed the Veteran's other risk factors such as age, family history, and obesity along with his occupational history. The examiner found no support in the scientific literature for a causative link between exposure to environmental toxins and diabetes. The examiner stated that diabetes was not addressed by the Camp Lejeune specific research studies and found that the articles submitted by the Veteran were of no probative value. Based on the absence of any association between the Veteran's exposure to environmental toxins and his diabetes found in the available literature and his other risk factors, the examiner opined that it was less likely than not that the Veteran's diabetes was caused by, or a result of, his exposure to contaminated water at Camp Lejeune. The examiner also found that there is no evidence of a causal relationship between prostate cancer and diabetes and, as such, that it was less likely than not that the Veteran's diabetes was caused, or aggravated, by his prostate cancer. Another VA examination was obtained in August 2021 which included a diagnosis of diabetes mellitus, type II. The examiner opined that it was less likely than not that the Veteran's diabetes was proximately due to, or the result of, his prostate cancer as the two are commonly diagnosed chronic health conditions. The examiner explained that there is no evidence in the medical literature that prostate cancer causes diabetes mellitus. In addressing the question of aggravation, the examiner opined that the Veteran's diabetes mellitus was not at least as likely as not aggravated beyond its natural progression by his prostate cancer as his diabetes mellitus has remained stable. An addendum opinion was obtained in November 2021, at which time the examiner opined that it was less likely than not that the Veteran's diabetes mellitus was proximately due to, or the result of, contaminated water at Camp Lejeune. As supporting rationale for this opinion, however, the examiner focused on the absence of medical literature showing a link between diabetes mellitus and prostate cancer. The examiner discussed the recognized disabilities that are presumptively linked to exposure to contaminated water at Camp Lejeune and only indicated that prostate cancer and diabetes mellitus are not recognized as conditions that have been linked to these contaminants. The examiner then opined that it was less likely than not that the Veteran's diabetes mellitus was aggravated or worsened by his prostate cancer and stated that there is no evidence in the medical literature suggesting that prostate cancer either causes or worsens diabetes mellitus. The examiner also noted that the Veteran's diabetes mellitus, type II, appeared to be following the usual course of the disease. The Board finds the VA medical opinions of record to be inadequate, as the examiners failed to consider the Veteran's contentions and failed to provide adequate rationale for the opinions provided. Also, the examiners failed to address whether the Veteran's diabetes mellitus, type II, was due to, or caused by, his exposure to other hazardous chemicals, to include asbestos, during his service. Given the inadequacies of the VA medical opinions, the Board finds that there has not been substantial compliance with the January 2019 Board remand. Stegall, 11 Vet. App. at 271. As such, a remand is necessary for corrective action, to include obtaining an adequate medical opinion. The Board observes that a February 2022 statement from the Veteran's VA treatment provider suggested a link between the Veteran's diabetes mellitus and his service. The examiner (who had treated the Veteran over the past few years) opined that the Veteran's diabetes mellitus "occur[s] with possible exposure with chemical agents." While the Board recognizes the positive nature of this opinion, it is not a sufficient basis upon which to grant the Veteran's claim for service connection as the examiner did not offer an opinion with the necessary degree of certainty necessary. The examiner's indication of "possible" exposure with chemical agents is not sufficient to support the Veteran's claim, and the examiner did not provide adequate rationale for the opinion provided. On remand, the examiner should address the opinion provided by the Veteran's treatment provider in addressing the nature and etiology of his diabetes mellitus, type II. Service connection for prostate cancer, to include as due to in-service exposure to contaminated water at Camp Lejeune and as due to in-service exposure to various chemicals The Veteran contends that he has prostate cancer related to his active duty. He reports that he was exposed to contaminated water at Camp Lejeune and believes this contributed to his prostate cancer. As noted above, he also described exposure to other chemicals and hazardous materials in the course of his completing the work associated with his MOS. In addition, he has submitted articles about the link between exposure to "everyday chemicals" and cancer. A VA opinion was obtained in September 2016 but did not include an examination of the Veteran. The examiner diagnosed prostate cancer and adenocarcinoma of the prostate in post-operative status. The examiner stated that the Veteran's diagnosis is not caused by, or a result of, his exposure to Camp Lejeune contaminated water. The examiner noted that the Veteran was potentially exposed to contaminated water for a period of approximately 70 days and that this is less than the average duration of 21.3 months found in published studies addressing Camp Lejeune drinking water. The examiner reviewed the Veteran's other possible risk factors for prostate cancer and noted that the Veteran's work as a bulk fuel truck driver, truck driver, and volunteer firefighter presented increased risk. The examiner opined that it was unlikely that benzene exposure at Camp Lejeune would have posed a significant risk and stated that there is limited scientific documentation linking exposure to the solvents found at Camp Lejeune with the development of prostate cancer and no definitive conclusions can be drawn. The examiner explained that prostate cancer is the most common malignant neoplasm in men in North America and that the most important risk factor is increasing age. The examiner did not address whether the Veteran's contended exposure to other hazardous chemicals caused his prostate cancer diagnosis. The Board finds the September 2016 VA medical opinion to be inadequate, as the examiner failed to consider the Veteran's contentions and failed to address whether his prostate cancer was due to, or caused by, his exposure to other hazardous chemicals, to include asbestos. While the examiner discussed the Veteran's potential risk factors for prostate cancer, the examiner appeared to rely only on the absence of a documented link between exposure to contaminated water at Camp Lejeune and the development of prostate cancer and did not address the Veteran's contentions in providing an opinion. The Board observes that a February 2022 statement from the Veteran's VA treatment provider suggested a link between the Veteran's prostate cancer and his service. The examiner, who treated the Veteran over the past few years, opined that the Veteran's prostate cancer "occur[s] with possible exposure with chemical agents." While the Board recognizes the positive nature of this opinion, it is not a sufficient basis upon which to grant service connection as the examiner did not opine with the required degree of certainty necessary. The examiner's indication of "possible" exposure with chemical agents is not sufficient to support the Veteran's claim, and the examiner did not provide adequate rationale for the opinion provided. On remand, the examiner should address the opinion provided by the Veteran's treatment provider in addressing the nature and etiology of the Veteran's prostate cancer. Service connection for an acquired psychiatric disorder The Veteran contends that he has an acquired psychiatric disorder due to his active service. He reports witnessing an incident during boot camp in which his drill instructor was apparently stabbed and tossed over a banister. See March 2016 Statement in Support of Claim. The Veteran's reported stressor could not be verified as the information provided by the Veteran was insufficient to corroborate his reported stressful incident. See March 2016 Administrative Decision. Various acquired psychiatric disorder diagnoses are of record, including a major depressive disorder, insomnia, an anxiety-related disorder, and posttraumatic stress disorder (PTSD). See, e.g., March 2016, August 2018, and June 2021 VA Treatment Record and April 2019 Private Treatment Record. A June 2018 VA examination resulted in a diagnosis of a major depressive disorder. The examiner noted that the Veteran did not have more than one mental health diagnosis, but then stated that it was not possible to differentiate which impairment is caused by each mental disorder. The examiner did not address the level of the Veteran's occupational and social impairment and stated that such could not be done without resorting to mere speculation due to concerns regarding the validity of his symptoms. The examination report included a recording of the Veteran's contended in-service incident and the finding that the stressor could not be verified due to a lack of information required to corroborate the event. The examiner opined that it was less likely than not that the Veteran has depression or other acquired psychiatric illness as a result of his reported in-service stressor. The examiner suggested that the Veteran showed signs of significant exaggeration or feigning of mental disorder symptoms. While it is possible that this was the case at the time of the examination, the examiner failed to address the mental health diagnoses provided in the Veteran's VA and private treatment records which clearly reflect the presence of a current mental health disorder. The examiner indicated that other, more recent events may account for the Veteran's current symptoms and that these symptoms appear to have largely developed in the last several years. The Board finds that the June 2018 VA examination is inadequate, as the examiner failed to address the multiple psychiatric disorder diagnoses of record and failed to address the Veteran's contentions regarding his in-service stressor. Given the inadequacies of the June 2018 VA examination, the Board finds that a remand is necessary for corrective action. On remand, an additional VA examination should be obtained that addresses the nature and etiology of the Veteran's variously diagnosed acquired psychiatric disorders. Accordingly, these matters are REMANDED for the following action: 1. Conduct appropriate development to verify any potential exposure to hazardous chemicals other than contaminated water at Camp Lejeune during the Veteran's service, to include seeking information as to whether he was exposed to asbestos and other chemicals or hazardous materials and to include contacting the National Personnel Records Center, and/or any other appropriate repository of records. Information should be requested regarding any available information about the types of hazardous materials that he would have been exposed to while working as a basic operations communications man and in the course of repairing radios and dealing with telephone poles. If any repository is unable to furnish such records or provide a response regarding hazardous materials, request such to identify any other resource for such information. Document all efforts to obtain this information. 2. Then, schedule an appropriate examination to determine the nature and etiology of his diabetes mellitus, type II. The examiner should review the claims folder (including a copy of this Remand) and indicate such in the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant pathology shown on examination should be annotated in the examination report. The examiner is asked to: a. Identify/diagnose any diabetes mellitus, type II, that presently exist or that have existed during the appeal period. b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any such diagnosed diabetes mellitus, type II, onset in, or is otherwise etiologically related to, the Veteran's service. In other words, is any diagnosed diabetes mellitus, type II, consistent with the Veteran's reported in service experiences, to include his exposure to contaminated water at Camp Lejeune and his reports of exposure to chemicals and hazardous material related to his MOS? In providing this opinion, the examiner is asked to address the February 2022 statement provided by the Veteran's VA provider regarding the Veteran's disability. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 3. Also, schedule an appropriate examination to determine the nature and etiology of the Veteran's prostate cancer. The examiner should review the claims file (including a copy of this Remand) and indicate such in the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant prostate pathology shown on examination should be annotated in the examination report. The examiner should: a. Identify/diagnose any prostate cancer and/or residuals of such that presently exist or that have existed during the appeal period. b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any such diagnosed prostate cancer and residuals onset in, or is otherwise etiologically related to, the Veteran's service. In other words, is any diagnosed prostate disability consistent with the Veteran's reported in service experiences, to include his exposure to contaminated water at Camp Lejeune and his reports of exposure to chemicals and hazardous material related to his MOS? In so opining, the examiner is asked to address the February 2022 statement provided by the Veteran's VA provider regarding the Veteran's disability. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 4. Also, schedule an examination to determine the nature and etiology of any psychiatric disorder the Veteran may have. The examiner should review the claims file (including a copy of this Remand) and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant psychiatric pathology shown on examination should be annotated in the examination report. The examiner is asked to: a. Identify/diagnose any psychiatric disability(ies) that presently exist or that have existed during the appeal period. b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any such diagnosed psychiatric disability(ies), including major depressive disorder, insomnia, an anxiety-related disorder, and posttraumatic stress disorder, onset in, or is otherwise etiologically related to, the Veteran's service. In other words, is any diagnosed psychiatric disability consistent with the Veteran's reported in service experiences? The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any scheduled VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional (CONTINUED ON NEXT PAGE) evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.