Citation Nr: 22017514 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-43 192 DATE: March 25, 2022 ISSUE Entitlement to service connection for the cause of death, to include as secondary to exposure to contaminated water at Camp Lejeune and/or secondary to the service-connected disability of malaria. REMANDED Entitlement to service connection for the cause of death, to include as secondary to exposure to contaminated water at Camp Lejeune and/or secondary to the service-connected disability of malaria is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1952 to March 1955. The Veteran died in January 2013. The appellant is his surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the appellant testified at a Video conference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. For the reasons explained below, the Board finds that further evidentiary development is required before the claim on appeal can be adjudicated. Entitlement to service connection for the cause of death, to include as secondary to exposure to contaminated water at Camp Lejeune and/or secondary to the service-connected disability of malaria is remanded. The appellant has asserted that the Veteran's cause of death is related to his active- duty military service, to include as related to his service-connected malaria and/or his conceded exposure to contaminated water during his service at Camp Lejeune. With respect to entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was causally related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In the present case, the Veteran died in January 2013 and the primary cause of death listed on his death certificate is cardiac arrest with underlying causes listed as being mitral valve regurgitation, chronic kidney disease (CKD) and pleural effusions. At the time of his death the Veteran's only service-connected condition was malaria. In May 2017 VA requested a medical opinion as to determine whether the Veteran's chronic kidney disease was caused by or the result of his exposure to contaminated water at Camp Lejeune. In June 2017 the VA examiner provided a negative opinion on a nexus between the Veteran's CKD and his in-service exposure history. The Board notes that at the time that the examiner provided this opinion the claims file was missing the Veteran's private treatment records. The examiner noted that it would be helpful to review those records to help determine the probable cause of his CKD. In September 2018 and November 2018, the appellant submitted the Veteran's private treatment records as well as medical treatise evidence relating to the health impacts of contaminants at Camp Lejeune as well as the impact of malaria on kidney function. Following the receipt of this additional evidence, VA requested another opinion from a subject matter expert on the Veteran's cause of death. In July 2019 the VA examiner opined that, upon review of the Veteran's claims file, it was less likely than not that the Veteran's chronic kidney disease was caused by or the result of his exposure to contaminated water at Camp Lejeune. The examiner opined that the most likely cause of the Veteran's CKD was his longstanding hypertension. In November 2019 and December 2019 VA requested additional opinions on whether the Veteran's service-connected malaria caused or aggravated his chronic kidney disease. In November 2019 a VA examiner opined that it was less likely than not that the Veterans' CKD was related to his service-connected malaria. In providing a rationale the examiner, in part, explained that while the Veteran contracted malaria in the mid-1950s this was irrelevant because he had never had a recurrence of the infection. The examiner explained that even if the Veteran did have renal involvement at the time of his acute infection in the 1950's, this would not have been followed by a 50 year period of normal renal function. The examiner rather attributed the Veteran's acute renal disease to an August 2004 largely resolved urinary obstruction, which was likely aggravated by his uncontrolled hypertension and diabetes. During the November 2021 Board hearing the appellant's representative argued that the medical opinions of record are insufficient because, while the VA examiners have separately considered whether the Veteran's cause of death may be related to his exposure to contaminated water at Camp Lejeune or his service-connected malaria, no examiner has provided an opinion whether these two risk factors, when considered in tandem, were related to the Veteran's death. The representative also disagreed with the November and December 2019 examiner's opinion that the Veteran's acute renal failure was due to a largely resolved urinary obstruction. The representative further contended that while this VA examiner opined that the Veteran's service- connected malaria was irrelevant to his cause of death as the Veteran never experienced a reoccurrence of the infection, the examiner did not properly address or consider the medical treatise evidence submitted which suggested that malaria may contribute to chronic kidney disease or an acute kidney injury. The representative also pointed out that while the examiner noted that the Veteran had a period of normal kidney function for years after his infection with malaria, there was evidence to suggest that he suffered from problems since returning home from service. To this point, the appellant testified that while she was unsure whether the Veteran ever had a recurrence of malaria while she was married to him, she did know that the Veteran's sister told her that the Veteran became very sickly after he returned home from service. Furthermore, the appellant testified that she knew despite being ill, the Veteran did not like doctors and therefore deferred medical intervention. In consideration of the evidence of record, including the testimony and arguments presented during the November 2021 Board hearing, and in affording the appellant the benefit of the doubt, the Board finds that an addendum retrospective medical opinion should be requested to determine if the Veteran's cause of death is a result of his conceded exposure to contaminated water at Camp LeJeune and/ or his service-connected malaria. As such, a remand is necessary to obtain this addendum opinion. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to the November 2019 VA examiner, or if the examiner is unavailable, another suitably qualified examiner, addendum opinion. The entire claims file, including a copy of this REMAND, must be made available to the examiner for review in connection with the addendum opinion. The examiner is asked to provide a retrospective opinion on the following: Whether it is as least as likely as not that the Veteran's service-connected malaria or his conceded exposure to contaminated water at Camp Lejeune, either separately or in tandem, contributed substantially or materially to the cause of the Veteran's death, combined to cause death, or aided or lent assistance to the production of death. A detailed rationale supporting the examiner's opinions should be provided. In forming the opinions, the examiner must consider all lay statements of record, including the appellant's November 2021 Board hearing testimony. The examiner is asked to specifically discuss the appellant's contention that the Veteran's malaria contribute to chronic kidney disease or acute kidney injury. The examiner is asked to specifically consider and address the appellant's testimony that while the Veteran deferred medical attention, he was very sickly when he returned home from service. In formulating this opinion, the examiner should consider and discuss the medical treatise evidence added to the claims file in November 2018. If the examiner thinks that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Thereafter, readjudicate the issue of service connection on appeal as noted above. If the determination remains unfavorable to the appellant, she and her representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The appellant and her representative should be afforded the applicable time period to respond before returning the matter to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.