Citation Nr: 22018227 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-64 680 DATE: March 28, 2022 ISSUES 1. Entitlement to service connection for a bladder disability. 2. Entitlement to service connection for a renal disability, to include renal failure. REMANDED Entitlement to service connection for a bladder disability is remanded. Entitlement to service connection for a renal disability, to include renal failure is remanded. REASONS FOR REMAND The Veteran served in the Marine Corps from November 1956, to October 1959 and from February 1962, to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran filed his Notice of Disagreement (NOD) with this rating decision. See, July 31, 2017 Notice of Disagreement (NOD). The Veteran perfected his appeal following a November 2017, Statement of the Case (SOC) in December 2017. The Veteran died in March 2018. The Appellant, his widow, was substituted for the Veteran in October 2018. See October 2018 VA Correspondence. In November 2021, the Appellant testified at a Travel Board Hearing before the undersigned Acting Veterans' Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In January 2022 correspondence, the Appellant stated she requested 90 days to submit additional evidence and argument in support of her claim. In this correspondence, the Appellant requested an additional 90 days beyond February 13, 2022 to submit additional evidence and argument. Although this 90-day extension period from February 13, 2022 has not yet expired, as the issues on appeal are being remanded, the Board finds the Appellant is not prejudiced by proceeding with the claim. Notably, the Appellant will be able to submit additional evidence in support of her claim while the case is undergoing additional development. The Board acknowledges the Appellant submitted private medical records after the issuance of the November 2017 SOC, along with a waiver a of initial consideration of such evidence by the Agency of Original Jurisdiction (AOJ). Regardless of any waiver, because the VA Form 9 addressing these issues was received after February 2, 2013, a waiver of review by the AOJ of Veteran-submitted evidence is not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). The Board also notes that in January 2022 correspondence, the Appellant indicated she wished to submit evidence in support of her appeal for service connection for accrued purposes for renal failure and prostate cancer. Review of the record shows that neither the Veteran nor the Appellant filed a claim for service connection for prostate cancer. Under 38 C.F.R. § 3.1(p), a "claim" must be submitted on an application form prescribed by the Secretary. See 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). Therefore, the Appellant is advised that if she wishes to file a claim for service connection for prostate cancer, she must do so on the form prescribed by the Secretary. See also, April 30, 2018, VA Form 21-0847 (Request for Substitution) re: open appeal regarding service connection for fibrous condition of the Veteran's bladder and renal failure, as due to exposure to the contaminated water at Camp Lejeune. Entitlement to service connection for a bladder disability. The Appellant asserts that service connection is warranted for this Veteran's bladder disability as due to contaminated water exposure at Camp Lejeune. VA has conceded the Veteran's exposure to contaminated water at Camp Lejeune. See Rating Decision (June 2017). The Board finds that additional evidentiary development is required before the claim on appeal is adjudicated. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. pt. 3). This presumption may be rebutted by affirmative evidence to the contrary. Id. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: Kidney cancer, Liver cancer, Non-Hodgkin's lymphoma, Adult leukemia, Multiple myeloma, Parkinson's disease, Aplastic anemia and other myelodysplastic syndromes, and Bladder Cancer. Id. Notwithstanding the foregoing presumption provisions for exposure to contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61(1997). At her November 2021 Board Hearing, the Appellant testified that medical treatment providers determined the Veteran's bladder disability was not cancerous. However, the Appellant testified the Veteran's bladder was filled with purulent fibrous material and that the Veteran's physicians had never seen anything like this before. The Appellant, through her representative asserted the Veteran's bladder condition was unprecedented. The Appellant testified the Veteran's physicians could not prevent the fibrous condition from reoccurrence. Because of the reported unusual nature of the Veteran's bladder condition, the Appellant associated the Veteran's bladder disability to exposure to contaminated water at Camp Lejeune. The Appellant, through her representative affirmed that no physician has been able to afford the Veteran a proper diagnosis with respect his bladder disability. The Appellant also testified that the Veteran's physicians attributed his renal failure to the bladder disability. See Board Hearing transcript, pgs. 4-7. The Board notes the Veteran has been treated for bladder pain and diagnosed with urinary incontinence, neurogenic bladder, obstructive uropathy and urinary tract infections. Medical records also report catheter placement has been attempted for his bladder disability without success. Medical records also report on history that at one time a urologist did a cystoscopy and scraped the liner of his bladder out and it "looked like cotton inside the bladder." See November 15, 2016 treatment records re: incontinence; See also, December 22, 2017 medical records re: urinary tract infection, site not specified; January 4, 2013 medical records re: obstructive uropathy; December 10, 2012 medical records re: neurogenic bladder, degree of bladder neck contracture. An April 2014 operative report revealed whitish purulent debris on the floor of the Veteran's bladder, which had to be irrigated clear before any structures could be seen in the bladder. The operative report also revealed mucosa was very edematous. There was evidence of chronic cystitis cystica and chronic cystitis glandularis. See April 2, 2014 Operative Report (Thomas Memorial Hospital). The Board notes, the Veteran's bladder disability (i.e., urinary incontinence, neurogenic bladder, obstructive uropathy) is not on the presumptive disability list. While the Veteran's bladder disability is not on the presumptive disability list, this does not the preclude the Appellant from establishing service connection for the claimed disorder on a direct basis, to include as due to Camp Lejeune water contamination. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With particular consideration given to the lack of clarity on the nature and etiology of this Veteran's bladder disability, i.e., the reported excess purulent fibrous material associated with the Veteran's bladder disability, the claimed unusual aspects of this Veteran's bladder disability (unprecedented), the lack of a proper diagnosis, taken together with the Veteran's conceded exposure to contaminated water at Camp Lejeune, the Board finds there is insufficient information to make a decision on this claim on a direct service basis. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Based on McLendon, remand is necessary to obtain a VA medical opinion from a clinician, preferably a urologist, to assess the nature and etiology of this Veteran's bladder disability. Specifically, on remand, the clinician must determine whether any of the Veteran's bladder diagnoses of record at the time of his death, including urinary incontinency were related to service, to include his in-service exposure to contaminated water at Camp Lejeune (notwithstanding the fact that there may not be a presumed association). Entitlement to service connection for a renal disability, to include renal failure. The Appellant asserts that service connection is warranted for the Veteran's renal disability, to include renal failure as due to contaminated water exposure at Camp Lejeune. As reported above, VA has conceded the Veteran's exposure to contaminated water at Camp Lejeune. The Appellant specifically asserts the Veteran's renal disability was caused by his bladder disability. The Appellant testified at her November 2021 Board Hearing that the Veteran's renal failure has been attributed to the Veteran's bladder disability. See Board Hearing transcript, pgs. 4-7. As the Appellant is asserting the Veteran was entitled to service connection for a renal disability, to include renal failure as secondary to his bladder disability, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Hence, this issue is remanded for readjudication following evidentiary development. Accordingly, these matters are REMANDED for the following action: 1. Contact the Appellant, and, with her assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers and associate them with the claims file. 2. After the above development has been completed, obtain a retrospective medical opinion from a urologist to determine the etiology of any bladder disorder, to include urinary incontinency, during the pendency of this claim prior to his death. The urologist must note review of the Veteran's entire claims file, including review of private treatment records submitted by the Appellant since January 30, 2022. Attention is also directed to an April 2, 2014 Operative Report (Thomas Memorial Hospital) re: purulent debris on the floor of the Veteran's bladder. (Receipt Date, August 10, 2017.) For each bladder disorder present, to include urinary incontinency, the urologist must offer an opinion as to whether it is at least as likely as not that any then current bladder disorder, to include urinary incontinency, had its onset during his active service, or is otherwise etiologically related to such service, to include his in-service exposure to contaminated water at Camp Lejeune (notwithstanding the fact that there may not be a presumed association). A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims, to include the inextricably linked claim of entitlement to service connection for a renal disability, to include renal failure, as due to exposure to contaminated water at Camp Lejeune. If any claim remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Appellant and her representative an opportunity to respond, and return the case to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.