Citation Nr: A25035596 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 220524-245633 DATE: April 17, 2025 REMANDED Entitlement to service connection for esophageal cancer, to include as due to exposure to herbicides and contaminated water at Camp Lejeune, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). In the May 2022 VA Form 10182 Notice of Disagreement (NOD), the Veteran elected the Board's evidence submission docket. This restricts the Board's review to the evidence of record at the time of the October 2021 rating decision and evidence submitted with, or within 90 days of filing of, the VA Form 10182 NOD initiating appellate review. 38 C.F.R. § 20.303. Because the Board is remanding the claim of entitlement to service connection for esophageal cancer, however, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for esophageal cancer, to include as due to exposures to herbicides and contaminated water at Camp Lejeune, is remanded. The Veteran contends that esophageal cancer was caused by herbicide exposure during his service in the Republic of Vietnam (RVN) and contaminated water while stationed at Camp Lejeune. The AOJ made favorable findings that based on the Veteran's service in RVN he was presumed exposed to herbicides. The AOJ also found that the Veteran had been diagnosed with esophageal cancer. The Board is bound by favorable findings made by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c). Initially, with regard to the Veteran's claimed exposures to herbicides, pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), VA must provide a VA examination and medical opinion when there exists evidence of a disability and evidence of participation in a toxic exposure risk activity (TERA) when such evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168 (a). The examination requirement does not apply if the VA Secretary has determined that there is no indication of an association between the disability claimed by the veteran and the toxic exposure risk activity for which the veteran has submitted evidence. 38 U.S.C. § 1168 (b). The VA Secretary has determined that esophageal cancer has no positive association with herbicide exposure. Nonetheless, service connection may be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). While a TERA examination was not required, the AOJ scheduled the Veteran for a VA esophageal conditions examination, which was completed in September 2021. The examiner did not provide an etiology opinion, to include regarding direct service connection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, this opinion is insufficient to decide the claim on this basis. Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, an addendum VA opinion should be obtained to address the etiology of the Veteran's esophageal cancer. The failure to obtain an adequate VA etiology opinion regarding direct causation is a pre-decisional duty to assist error. The Veteran also contends that he was exposed to contaminated water at Camp Lejeune. While a TERA examination was not warranted for the esophageal cancer on the basis of herbicide exposure, contaminated water exposure at Camp Lejeune may constitute a TERA for purposes of 38 U.S.C. § 1168. The Veteran's service treatment records received into the record on December 19, 2017, contain documentation that shows he served at Camp Lejeune from October 22, 1968, to December 13, 1968; thus, the Veteran is presumed to have been exposed to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). As there was record of a different TERA other than herbicides prior to the decision on appeal, failure to afford the Veteran a TERA examination constitutes a pre-decisional duty to assist error that requires a remand. 38 U.S.C. § 1168. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion concerning the nature and etiology of the Veteran's esophageal cancer. The examiner must review the entire claims file, including a copy of this remand. Another examination may be scheduled if deemed necessary by the examiner. Specifically, the examiner should provide an opinion on the following: A) Whether the Veteran's esophageal cancer was at least as likely as not related to a TERA, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effects of all TERAs on the Veteran, to include exposure from contaminated water at Camp Lejeune. In rendering this opinion, the examiner must address evidence submitted by the Veteran with his May 2022 NOD, which contained an informational sheet from VA indicating that esophageal cancer was considered a qualifying health condition as a result of Camp Lejeune water contamination. The examiner is advised that a negative opinion cannot be based solely on the fact that the esophageal cancer is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. B) Whether it is at least as likely as not that the Veteran's esophageal cancer began during active service, manifested within year after discharge from service, or was noted during service with continuity of the same symptomatology since service?] The examiner is advised that a negative opinion cannot be based solely on the fact that the Secretary has determined that there is no indication of an association between esophageal cancer and herbicide exposure. C) A detailed rationale for all medical opinions must be provided. K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Prairie, N. R. 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.