Veteranclaims’s Blog

February 13, 2017

Single Judge Application: VA Recognized Veterans Stationed at Camp Lejeune Exposed to Contaminants in Water Supply; VA Training Letter 11-03 (Revised) (Nov. 29, 2011); M21-1, pt. IV, subpt. II, ch. 2, § C (Dec. 16, 2011);

Excerpt from decision below:

“Furthermore, as the Secretary notes, VA has recognized that veterans stationed at Camp Lejeune prior to 1987 may have been exposed to contaminants in the water supply. Secretary’s Br. at 12-13 n.2 (explaining that the Board must deem certain veterans with verified service at Camp Lejeune “to meet the in-service event, injury, or disease requirement for obtaining a medical examination” (citing VA Training Letter 11-03 (Revised) (Nov. 29, 2011))). VA’s own Adjudication Procedures Manual also states that, for veterans who served at Camp Lejeune from 1957 to 1987, the manifestation of certain diseases “is sufficient to . . . initiate a VA medical examination, and . . . request an opinion regarding its relationship to Camp Lejeune service.” VA Adjudication Procedures Manual, M21-1 [hereinafter M21-1], pt. IV, subpt. II, ch. 2, § C (Dec. 16, 2011).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3266
JOSEPH WILLIS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Judge: U.S. Marine Corps veteran Joseph Willis appeals through counsel from a
September 28, 2011, Board of Veterans’ Appeals (Board) decision that denied disability benefits for post-traumatic stress disorder (PTSD), a back disability, and a skin disability other than pseudofolliculitis barbae. The Board decision also denied a rating over 10% for his serviceconnected pseudofolliculitis barbae. For the following reasons, the Court will affirm in part and set aside in part the Board’s September 2011 decision and remand the matter for further proceedings consistent with this decision.

I. ANALYSIS
A. Camp Lejeune Water Contamination
Mr. Willis argues that the Board violated its duty to assist by failing to consider whether his medical conditions were caused by exposure to contaminated water during his service at Camp Lejeune, North Carolina, between 1978 and 1979. Specifically, he argues that this issue was reasonably raised through counsel at a hearing before the Board.
The Secretary’s duty to assist claimants in developing their claims generally requires the
Secretary to investigate reasonably apparent and potential causes of a veteran’s condition that are reasonably raised by the record or by a sympathetic reading of the claimant’s filing. 38 U.S.C. § 5103A; see Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (explaining that the Board is obligated to consider theories related to a “basic issue” before the Board when the issue is reasonably raised by the record); Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (noting that the duty to assist “attaches to the investigation of all possible in-service causes of that current disability, including those unknown to the veteran”). Whether VA fulfilled its duty to assist is a finding of fact that the Court reviews under the “clearly erroneous” standard of review. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The issue of contaminated groundwater was raised once, by Mr. Willis’s attorney, during a
hearing before the Board. While Mr. Willis was being questioned regarding his pseudofolliculitis barbae, his attorney stated: “I think [Mr. Willis] inadvertently brought up something important to consider. If he’s at Camp Lejeune in the mid, to late 70’s, which was his time in service[,] [t]he water contamination there obviously could’ve caused a lot of what’s going on.” Record (R.) at 118. He explained that, “given all the litigation” on the issue, “it’s something that we obviously need to consider for everything.” R. at 118. This statement expressly identifies water contamination as a
potential cause of Mr. Willis’s injuries, and does not “only vaguely” raise the issue as the Secretary argues. See Secretary’s Brief (Br.) at 9 (arguing that Mr. Willis failed to “pose[] any specific theories about how contaminated water caused any of his alleged conditions”).
Furthermore, as the Secretary notes, VA has recognized that veterans stationed at Camp Lejeune prior to 1987 may have been exposed to contaminants in the water supply. Secretary’s Br. at 12-13 n.2 (explaining that the Board must deem certain veterans with verified service at Camp Lejeune “to meet the in-service event, injury, or disease requirement for obtaining a medical examination” (citing VA Training Letter 11-03 (Revised) (Nov. 29, 2011))). VA’s own Adjudication Procedures Manual also states that, for veterans who served at Camp Lejeune from 1957 to 1987, the manifestation of certain diseases “is sufficient to . . . initiate a VA medical examination, and . . . request an opinion regarding its relationship to Camp Lejeune service.” VA Adjudication Procedures Manual, M21-1 [hereinafter M21-1], pt. IV, subpt. II, ch. 2, § C (Dec. 16, 2011).
The Secretary argues that M21-1 is irrelevant because Mr. Willis has not demonstrated that
he suffers from any of the diseases enumerated therein. However, M21-1 does not limit itself to the
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enumerated injuries; the manual expressly states that it contains a “non-exclusive list of diseases potentially associated with contaminants present in the Camp Lejeune water supply between 1957 and 1987.” Id. Additionally, because M21-1 recognizes that water contamination has contributed to various diseases, the Court rejects the Secretary’s assertion that Mr. Willis has advanced “nothing more than an unsupported, unsubstantiated, speculative lay theory of causation.” Secretary’s Br. at 17. The Secretary is also unpersuasive in arguing that any failure by the Board to discuss water
contamination is non-prejudicial because Mr. Willis “fail[ed] to identify what particular assistance VA should have provided.” Secretary’s Br. at 11. As the Secretary himself acknowledged, Mr. Willis stated that VA could have investigated whether in-service contact with contaminated water caused his diseases, or provided a medical opinion as to this theory. Secretary’s Br. at 11.
Accordingly, whether water contamination at Camp Lejeune contributed to Mr. Willis’s
injuries is a question reasonably raised by both the record and VA’s own adjudication guidelines. The Court therefore concludes that the Board clearly erred in failing to consider this theory of causation. See Gilbert, supra; see also Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (explaining that the Court has jurisdiction to remand any matters reasonably raised below that the Board should have, but failed, to decide). The Court notes that Mr. Willis also argues that the Secretary violated his duty to assist by failing to provide a contemporaneous medical examination determining whether his skin
condition is related to his service-connected pseudofolliculitis barbae and whether he is entitled to an increased rating for pseudofolliculitus barbae. Because of the likelihood that a medical opinion is required to evaluate the water contamination theory, the Court declines to address this argument. See Mahl v. Principi, 15 Vet.App. 37 (2001) (finding that when remand is proper, the Court need not analyze all claimed errors that would result in a remedy no broader than remand). On remand, the Board must determine whether an examination is required, and Mr. Willis is free to submit any additional argument and evidence in support of his claim, which the Board is required to consider. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).

B. In-Service Stressors
Next, Mr. Willis argues that the Secretary violated its duty to assist by failing to obtain
records documenting his claimed in-service PTSD stressors. See 38 C.F.R. § 3.304(f) (explaining
that service connection for PTSD requires “a link, established by medical evidence, between current
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symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service
stressor occurred”). Mr. Willis identified several stressful events, including being “racially and
physically assaulted” by a sergeant who “stuck a gun to [his] head.” R. at 612, 2622. He also reported
that someone used a rifle to hit the back of his head while he slept (R. at 2622), that he witnessed
racial fights and crimes against black marines (R. at 128-30), and that a gas chamber exercise led to
his skin condition and contributed to his PTSD. Specifically, Mr. Willis argues that although he
provided “detailed description of the incidents, which all occurred within an eleven-month period,”
VA failed to acquire evidence regarding these claimed stressors in order to substantiate his claim.
The Secretary’s duty to assist requires VA to “make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claimant’s claim for benefits,” as long as the records
are relevant and adequately identified by the claimant. 38 U.S.C. § 5103A(a), (b); see also Loving
v. Nicholson, 19 Vet.App. 96, 102 (2005). Because VA’s duty to obtain records extends only to
records adequately identified, “[t]he duty to assist is not always a one-way street.” Wood v.
Derwinski, 1 Vet.App. 190, 193 (1991). The Court reviews the Board’s factual finding that the duty
to assist was satisfied under the “clearly erroneous” standard of review. See Gilbert, supra.
Notwithstanding the duty to assist, it remains the claimant’s responsibility to submit evidence
to support his claim. 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support
a claim for benefits[.]”). Here, the record contains VA treatment records, service treatment records,
and other relevant personnel documents corresponding to the entire length of Mr. Willis’s active duty
service, and Mr. Willis has failed to identify any other records VA should have obtained. See R. at
40-41 (Board decision deeming the record complete). Indeed, despite multiple VA requests, Mr.
Willis failed to provide information that could corroborate his claimed stressors–such as statements
from individuals capable of verifying the events, reports from private physicians, and information
identifying the two-month time period during which the stressful events occurred. See R. at 713,
2647, 2674. Rather, Mr. Willis only indicated that the stressors occurred between 1978 and 1979–the
entire length of his active duty service. He asserts that the two-month period requested by VA
“applies only to record requests that the VA attempts to obtain through the Marine Corps Archives
and Special Collections,” and not to the duty to assist generally. Appellant’s Reply Br. at 7. This
argument is irrelevant, however, because Mr. Willis has not adequately identified the existence of
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any records VA failed to obtain.
As the Secretary argues, Mr. Willis “simply wants VA to search for unspecified records
detailing his entire period of service in hopes that something stressful will be found.” Secretary’s Br.
at 20; see R. at 2622. This is evidenced by Mr. Willis’s statement that the Secretary’s duty to assist
“exist[s] regardless of whether the Veteran identified the specific records for the Secretary to obtain.”
Appellant’s Br. at 7. This line of reasoning illustrates just how clearly Mr. Willis’s expectations fall
within the realm of a “fishing expedition” and outside the parameters of VA’s duty to assist. See 38
U.S.C. § 5103A. Accordingly, the Court discerns no error in the Board’s determination that VA
fulfilled its duty to assist in obtaining evidence related to the claimed stressors above.
C. Social Security Administration Decision
Mr. Willis similarly argues that VA failed to acquire a February 14, 2011, Social Security
Administration (SSA) decision finding him disabled as a result of a back disability. Mr. Willis points
to no evidence of record indicating that he adequately identified this record to the Board prior to its
September 2011 decision, or at any time prior to filing his brief. See 38 U.S.C. § 5103A. However,
he seems to argue that he had no duty to identify this decision to VA because VA had previously
obtained records pertaining to SSA’s initial denial of his claim in 2009. See R. at 283-97, 492. He
argues that, because the SSA claim was “clearly under appeal,” the Board should have either inquired
into the status of that claim or “held this matter in abeyance pending the resolution of the SSA
matter.” Appellant’s Br. at 18 n.3. Mr. Willis cites no authority to support his argument, and the
Court has not held that VA has an ongoing duty to obtain SSA records. See Baker v. West, 11
Vet.App. 163, 169 (1998) (explaining that the Board must seek to obtain SSA records when, before
issuance of a final decision, VA is put on notice of the relevant SSA records); see also Golz v.
Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that VA is not required to obtain all records from
SSA, and is “required to assist the veteran in obtaining the identified records” only when reasonably
relevant to the veteran’s claim) (emphasis added). Rather, the duty to assist is not a one-way street;
if Mr. Willis was aware that SSA issued a relevant decision, he should have advised the Board as
such. Wood, supra. Accordingly, the Board did not err in failing to obtain the February 2011 SSA
decision.
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II. CONCLUSION
Based on the foregoing, the Court AFFIRMS IN PART and SETS ASIDE IN PART the
Board’s September 28, 2011 decision. The Court REMANDS for readjudication the issue of water
contamination at Camp Lejeune. In pursuing his claim on remand, Mr. Willis is free to submit any
additional argument and evidence in support of his claim, including the February 2011 SSA decision,
and the Board is required to consider any such evidence and argument. See Kay, supra.
DATED: April 29, 2013
Copies to:
Michael D.J. Eisenberg, Esq.
VA General Counsel (027)
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