Citation Nr: 20030663
Decision Date: 04/30/20 Archive Date: 04/30/20

DOCKET NO. 12-20 696
DATE: April 30, 2020

ORDER

Entitlement to service connection for a right knee disorder, to include as due to exposure to contaminated water at Camp Lejeune, is DENIED.

REMANDED

Entitlement to service connection for a bilateral shoulder disorder, to include as due to exposure to contaminated water at Camp Lejeune, is REMANED.

Entitlement to service connection for a cervical spine / neck disorder with radiculopathy, to include as due to exposure to contaminated water at Camp Lejeune, is REMANDED.

Entitlement to service connection for a thoracolumbar spine disorder, to include as due to exposure to contaminated water at Camp Lejeune, is REMANDED.

Entitlement to service connection for a left foot disorder, to include as due to exposure to contaminated water at Camp Lejeune, is REMANDED.

FINDING OF FACT

The weight of the evidence is against a finding that the Veteran’s currently diagnosed right knee patellofemoral syndrome either began during, or was otherwise caused by, his service in the United States Marine Corps.

CONCLUSION OF LAW

The criteria for a grant of service connection for a right knee disability, to include as due to exposure to contaminated water at Camp Lejeune, are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably in the United States Marine Corps from December 1975 to January 1980. The Veteran’s certificate of release from active duty (DD214) reflects that he served as a Wireman and Field Radio Operator. The Veteran’s DD214 also reveals that his last duty station was Camp Lejeune, North Carolina.

In March 2020, the Veteran submitted a motion requesting that his case be advanced on the docket, and it appears that the Board has not yet issued a ruling on that motion. Having reviewed the evidence submitted by the Veteran in support his motion, the motion is granted, and this appeal is advanced on the docket pursuant to 38 C.F.R. § 20.900 (c).

The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

1. Entitlement to service connection for a right knee disorder, to include as due to exposure to contaminated water at Camp Lejeune, is remanded.

In June 2009, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for entitlement to service connection for a right knee disorder.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b) (2019). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Service connection may also 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 (hereinafter contaminated water), 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. 38 C.F.R. §§ 3.307, 3.309 (2019). 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.

The Board observes that knee disabilities are not listed among the diseases for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id. Consequently, the presumptions available under 38 C.F.R. §§ 3.307, 3.309 are not applicable to this entitlement claim for service connection for a right knee disability.

In October 2009, a statement from the Veteran was associated with the claims file. Therein, the Veteran relays that, “in regards to my cervical spine fusion surgery, my back, left foot surgery and knee problems, these injuries occurred when I was stationed in Hawaii while on a forced march on beach sand in full battle gear and being a ground to air radio operator I was also carrying a Vietnam era radio on my back. Our Gunnery Sergeant decided to jump on my back from the top of a sand dune as I was walking by because he wanted us to expect the unexpected. When the Gunnery Sergeant jumped on my back my knee's buckled from the sudden additional weight tearing the cartilage in both, knees, causing the arch of my left foot to collapse has caused me back problems ever since, I had to have one leg in a cast for several weeks after the incidence to help the torn cartilage to heal. This is all documented in my military medical records. We as Marines were expected to take it, to keep our mouth shut and to suck it up.”

In July 2012, the Veteran submitted a statement with his VA Form 9. Therein, the Veteran relayed that, “as stated in my letter to the VA in regards to how the injury occurred during active duty on a forced march in full combat gear (weight approx. 200 lbs, 7th Comm. Radio - 25 lbs) total weight approx. 225 lbs marching in beach sand when the Veteran's Gunn Sergeant came running off the top of a sand dune onto the Veteran's back land between the top of the veteran's backpack/radio and the back of Veteran's helmet. The overpowering blow to the Veterans neck, back and trauma of the addition extra weight caused the Veteran legs to buckle from the sudden trauma of the weight on Veteran's back and the Veteran ended up in sick bay with injury to his knees at the time. At the time the Veteran was not allowed to say how the injury occurred due to repercussions . . ..”

In September 2014, the Veteran service treatment records (STRs) were associated with the claims file. After deliberate review and consideration, the Board observes that STRs do not contain a notation for an in-service injury, illness or disease of the right knee. The Board notes that there are multiple treatment notations for the Veteran’s left knee.

In April 2017, a statement from the Veteran’s spouse was associated with the claims file. Therein, it was relayed that the Veteran discussed his knee pain with her in 1986.

In April 2017, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). At that time, the Veteran testified that his bilateral knee problems started in service with combat jumps off of telephone poles. The Veteran supplied the following description: “I don’t know if you’re familiar with that but that’s where you wear the gas and you climb up the telephone pole, you’re up there about 40, 50 feet up and they tell you to unhook the belt. You have your gloves on, you just jump up and unhook your gas and you slide down about 10 feet and then put your gas back in and that’s incase somebody shoots at you, you come down quickly.”

In September 2018, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured right knee disorder. The VA examiner noted a diagnosis for right knee patellofemoral pain syndrome. The VA examiner supplied the following medical history: “Veteran reports knee pain in military service. Attributes to frequent jumps from telephones as part of combat training. States that knee pain worsened after his Gunnery Sgt jumped on his back from a sand dune in 1978. Reports gradual onset of right knee pain since the 1978 or 1979.” In December 2018, another VA examiner opined that, “(t)he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA examiner supplied the following rational: “(p)er available c-file, a diagnosis of a right knee condition was rendered during a compensation/pension physical on 8/18/2018. There is no objective medical evidence to support a condition during military service dates of 12/28/1975-01/07/1980 or chronicity for a right knee condition after military service. Diagnosis of a right knee condition is noted over 35 years after service. A nexus has not been established.”

In December 2018, an addendum from the VA examiner was associated with the claims file. Therein, the VA examiner reported that the Veteran did not demonstrate evidence of pain on passive range of motion testing or pain when the right knee was used in non-weight bearing.

In January 2019, the Veteran underwent a VA examination that considered the nature of any currently endured right knee disorder. The VA examiner noted a diagnosis for right knee patellofemoral pain syndrome. The VA examiner supplied the following medical history: “(r)eports onset of bilateral knee pain as the result of a gunnery SGT jumping onto back from an 8 foot dune in about 1977. States that injury caused pain to both knees, and to other unrelated areas. States ongoing knee pain as the result of military duties during service. Reports no surgeries to the left or right knee.”

In June 2019, a VA Medical Opinion Disability Questionnaire (DBQ) was associated with the claims file. After review of the claims file, the VA physician noted right knee patellofemoral pain syndrome. The VA physician opined that, “(e)xposure to contaminated water at Camp Lejeune is not the cause of any musculoskeletal disorders noted above.” The VA physician supplied the following rationale: “(a)fter reviewing the ‘ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases’, published in 2017, there are no studies cited that document the condition in question as a sequelae to exposure to CLCW. Furthermore, there is no evidence in the known Medical literature documenting exposure to CLCW as a cause of musculoskeletal pathologic conditions. Disease specific discussion: There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions. Scientific review (studies and risk factors showing causal relationship with the condition): There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions.”

In September 2019, the Veteran submitted highlighted copies of his STRs to support his right knee entitlement claim. In the first, the Veteran circled the text in the STR that he believed supported the right knee entitlement claim. On close inspection, the Board observes that, on April 21, 1977, the military examiner noted that, “the lungs are somewhat hyperextended bilaterally (emphasis added).” In the second, the Board observes that the Veteran was treated on January 22, 1979 after his right hand was scratched by a cat.

In September 2019, the Veteran submitted a statement along with a portion of the August 2019 SSOC. Therein, the Veteran posited that, “as noted in my Medical Record, my MOS as a wireman 2512 and field radio operator 2531 involved training exercise with combat jumps off of telephone poles, which caused repeated impact on both knees as noted.”

In September 2019, a statement from the Veteran was associated with the claims file. Therein, the Veteran posited that, “(s)ince I didn’t have health insurance after being discharged, I had to constantly self-medicate due to the ongoing back and knee issues.”

The Board observes that the Veteran is currently diagnosed with right knee patellofemoral pain syndrome. Consequently, the first requisite element for direct service connection has been substantiated. See Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341. The Board observes that, despite the Veteran’s incorrect assertion(s), the STRs do not reflect that he was treated for a right knee injury during Marine Corps service. Consequently, the second requisite element has not been substantiated for this direct service-connection claim. Id. Moreover, after deliberate consideration of the claims file, the Board does not identify a competently supplied medical nexus between the Veteran’s current right knee patellofemoral pain syndrome and an in-service injury in the United States Marine Corps.

Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s right knee disorder claim. Since the preponderance of the evidence is against this knee claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to service connection for a right knee disorder must be denied, because the preponderance of the evidence weighs against his claim.

REASONS FOR REMAND

Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication.

2. Entitlement to service connection for a bilateral shoulder disorder, to include as due to exposure to contaminate water at Camp Lejeune, is remanded.

In June 2009, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for entitlement to service connection for a bilateral shoulder disorder.

In September 2009, the Veteran’ treatment notations from Sharp Healthcare and the Alton Ochsner Medical Foundation were associated with the claims file. Therein, it was reported that, “referred by Dr. (BM) with pain in the right shoulder for the past 18 years. He reports it began gradually after he was hit in the shoulder in the Marine Corp.” It was also reported that, “(a)ccording to the patient's history, he has had many years of chronic, recurrent tight shoulder pain. He reports that his pain is always aggravated by overhead work activities. Indeed, he is no longer able to perform such activities. He denies any recent episodes of falls, trauma, or injury; however, he does recall that many years ago, while in the U.S. Marine Corps, he did suffer a significant injury to his right shoulder. He does not perform any regular overhead throwing activities or racquet sports. He does not have regularly work-performing overhead activities.”

In October 2009, a statement from the Veteran was associated with the claims file. Therein, , the Veteran credibly described being hazed by 80 fellow Marines when they punched him from the shoulders to the forearms, after being promoted. The Veterans relayed that he had to keep quiet about the incident.

In July 2012, the Veteran submitted a statement with his VA Form 9. Therein, the Veteran posited that, “the injury occurred while on active duty date 1976 - 1980. Veteran medical service records show severe bruising and blood vessel damage from the shoulder to the forearm due to hazing (being punched in each shoulder simultaneously by 40 Marines), after being promoted from E-2 to E-3. At the time the Veteran was not allowed to say he was unwillingly given this hazing initiation due to repercussions from the veteran's superiors. The Veteran ended up in sick bay with injury to his shoulders with severe bruising and blood vessel damage.”

In September 2014, the Veteran service treatment records (STRs) were associated with the claims file. Therein, in June 1977, the military provider relayed that, “pt states has developed aching pain along (left) scapula prior to 11 April 77 surfboard accident.” In July 1979, it was noted that the Veteran demonstrated bruises at the left arm.

In April 2017, a statement from a fellow service member was associated with the claims file. Therein, it was relayed that, upon separation from service in 1980, he was the Veteran’s roommate. The fellow service member relayed that the Veteran informed him of bilateral shoulder pain at that time in 1980.

In April 2017, a statement from the Veteran’s spouse was associated with the claims file. Therein, it was relayed that the Veteran discussed his shoulder pain with her in 1986.

In August and November 2018, and March, June, and September 2019, the Veteran’s treatment notations from the Frank M. Tejeda VA OPC, Audie L. Murphy Memorial Hospital, Data Point VA clinic, and Du Pont VA clinic were associated with the claims file. After deliberate review and consideration, the Board finds that the records are devoid of evidence to support that it is at least as likely as not (50 percent or greater probability) that any current bilateral shoulder disorder is causally related to the Veteran’s Marine Corps service.

In January 2019, the Veteran underwent a VA examination that considered the nature and etiology of any current bilateral shoulder disorder. The VA examiner reported right shoulder acromioclavicular joint osteoarthritis and bilateral calcific tendonitis. The VA examiner noted the following history: “40 guys lined up and hit him during hazing in approximately 1977. Was seen for bruising on both arms. He was on light duty with compresses and OTC pain medications. A few years later began to have pain in both arms but right was greater than the left.” The VA examiner opined that, “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA examiner supplied the following rationale: “(d)uring service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.”

In June 2019, a VA Medical Opinion Disability Questionnaire (DBQ) was associated with the claims file. After review of the claims file, the VA physician noted bilateral acromioclavicular osteoarthritis. The VA physician opined that, “(e)xposure to contaminated water at Camp Lejeune is not the cause of any musculoskeletal disorders noted above.” The VA physician supplied the following rationale: “(a)fter reviewing the ‘ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases’, published in 2017, there are no studies cited that document the condition in question as a sequelae to exposure to CLCW. Furthermore, there is no evidence in the known Medical literature documenting exposure to CLCW as a cause of musculoskeletal pathologic conditions. Disease specific discussion: There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions. Scientific review (studies and risk factors showing causal relationship with the condition): There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions.”

In September 2019, the Veteran’s treatment records form the Neurosurgical Associates of San Antonia were associated with the claims file. Therein, the provider relayed that, “(the Veteran’s) symptoms include continued prominent pain in the low back . . . moderate to sever in intensity, duration over the last several decades. Timing is related by (the Veteran’s) recollection to an injury in the service which was documented where he was jumped on by a commanding officer as pert or an exercise/drill.” The provider opined that, “(the Veteran) has multilevel lumbar degenerative pathology and ongoing lumbar symptoms which certainly could have been exacerbated as a result of the trauma he describes as being sustained sudden axial load with forceful trauma of abrupt load on his shoulders and neck. I believe it is more likely than not that his symptoms could be the result of exacerbating issue in the service (emphasis added).”

In September 2019, a statement from the Veteran was associated with the claims file. Therein, the Veteran posited that, “I had a surfing accident in April 1977 as documented in my Military Medical Record. . . . I had persistent pain and swelling worsening for my Upper/Lower back and shoulders including contusions on my ribs. I complained again in June 1977 and then again in November 1978 and April 1979. It was constantly persistent including the upper back/neck area while on active duty.”

In September 2019, the Veteran submitted a statement along with a portion of the August 2019 SSOC. Therein, the Veteran posited that, “(a)gain, I was hit I the back with a surfboard. This did not occur at Camp Lejeune. The accident had to during my previous ‘duty station.’ It had nothing to do with the contaminated water as the SSOC is basing it all on.”

The Board observes that, in December 2017, the issues listed on the title page were addressed and remanded. At that time, the Board directed the agency of original jurisdiction (AOJ) to obtain the Veteran’s service personal records (SPRs), the Veteran’s complete Social Security Administration (SSA) disability records, and VA examination reports that address the nature and etiology of any currently endured right knee, bilateral shoulder, cervical spine, thoracolumbar spine, and left foot disorders. The Board provided multiple queries for each of the service-connection claims listed above. The Board also directed that, “(t)he VA examiner must provide a clear explanation for the opinion . . ..”

In response to the Board’s remand directives, the January 2019 VA examiner supplied the following responses for each of the entitlement claims: “(d)uring service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.” The Board observes that the 2019 VA examiner did not address the Veteran’s duties as a wireman and field radio operator for this entitlement claim. The Board finds that the AOJ has not substantially complied with the 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Consequently, another remand is warranted to obtain adequate VA examination report, which is necessary for resolution of the Veteran’s entitlement claim for service connection for a bilateral shoulder disorder.

3. Entitlement to service connection for a cervical spine / neck disorder with radiculopathy, to include as due to exposure to contaminated water at Camp Lejeune, is remanded.

In June 2009, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for entitlement to service connection for a cervical spine disorder.

In September 2014, the Veteran service treatment records (STRs) were associated with the claims file. Therein, in April 1977, the presented with complaints of spinal pain after being struck in the upper back with surfboard. At that time, the Veteran relayed that he felt sharp pain along middle portion of back, and the pain had gotten worse. In April 1979 the Veteran was treated for upper back pain. At that time, the military provider noted that been ongoing after an auto accident two years prior.

In February 2017, a Report of General Information was associated with the claims file. Therein, it was reported that, “(the Veteran) states that he would like to have it noted that his Neural behavioral issues that affect the spine could be linked to his exposure to contaminated water.”

In April 2017, a statement from the Veteran’s spouse was associated with the claims file. Therein, it was relayed that the Veteran discussed his neck pain with her in 1986.

In April 2017, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). At that time, the Veteran testified that, “the incident . . . that mainly caused most of my back and knee problems was caused -- in the record it says that on April 11th, 1977 when I was with 7th COM, that I was hit in the upper back with a surf board. That’s not true. I could sit here very easily, Your Honor, and tell you that, yeah, I got hit by a surf board, we were out on Bellows Air Force Base and on maneuvers and, uh, I was on my free time and they let us go swimming and I got hit in the back by, by a local surfboard. That’s not what happened. We were on a forced march in full battle gear and this Vietnam era -- I was a radio operator at that time because I crossed trained and we were doing, uh, a forced march through the sand dunes and we had this gunnery sergeant who was, uh, had just come back from Vietnam -- I joined shortly after Vietnam era and he decided to run off the top of a sand dune, eight foot sand dune and come flying on my back screaming like a banshee while I’m carrying about 250 pounds on my back, um, that, which included my flack jacket and all that. Um, and he landed right square between my radio and my helmet, back here and my knees, my left knee just buckled, uh, I, I couldn’t, I couldn’t handle his weight and the weight that I was carrying plus we were in sand, so, he hit me and I just felt this pain in my back and my knee just gave out and my foot started hurting and the reason he said he did that is because he wanted us to expect the unexpected. (emphasis added)” The Veteran testified that, “I went to our, um, brigade school medical facility and this is what they wrote down, patient hit in upper back with surf board, hit by superior portion board, pain along mid portion of back, uh, accident occurred three days prior, which was actually April 8th, which is, I went to sick bay three days later. Back then it was, it was, you know, you know, no pain no gain. You know, take one for the team. If you lose somebody, if you leave somebody else has to take your place, they have to carry your load. So I didn’t say anything I was, I was 18-years-old at the time, you know, I didn’t say anything. I didn’t want to let my comrades down, but anyway . . . It wasn’t a surfboard.” When questioned by the undersigned, the Veteran testified that his back “gave out” in 2009. The Veteran testified that he mainly took medication for his upper back and shoulders. When questioned by the undersigned, the Veteran confirmed that he did not have any post-service injuries to his back or knees, to include automobile accidents or work related accidents. The Veteran testified that, “that’s another thing, when I complained about my, my back at my second duty station at New River Marine Corp Air Station, they said it was a car accident two years ago. So, it just doesn’t jive what they put in, you know, I mean, one says that I got hurt by a surfboard and then when I got to my second duty station and complained about it and told ‘em, you know, the gunnery sergeant had jumped on my back, they wrote in it was a car accident, two years prior.” The Veteran testified that, “I am not going to tell the Court that, yeah, I got hit in the back with a surfboard while I was on duty and, you know, it’d be real easy for me to do that but I’m not going to because it’s not true . . ..”

In January 2019, the Veteran underwent a VA examination to address the nature and etiology of any current cervical spine disorder. The VA examiner noted diagnoses for degenerative arthritis, intervertebral disc syndrome, spinal fusion, spinal stenosis, post-laminectomy syndrome, and cervical radiculopathy. The VA examiner supplied the following medical history: “(n)eck injured during a forced march in the sand with approximately 300# on his back. Sergeant jumped from 8' sand dune onto his back. Began complaining of neck pain while in the service (4/17/1979) after MVA in 1977.” The VA examiner opined that, “(t)he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA examiner supplied the following rationale: “(d)uring service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.”

In June 2019, a VA Medical Opinion Disability Questionnaire (DBQ) was associated with the claims file. After review of the claims file, the VA physician noted status post cervical spine fusion. The VA physician opined that, “(e)xposure to contaminated water at Camp Lejeune is not the cause of any musculoskeletal disorders noted above.” The VA physician supplied the following rationale: “(a)fter reviewing the ‘ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases’, published in 2017, there are no studies cited that document the condition in question as a sequelae to exposure to CLCW. Furthermore, there is no evidence in the known Medical literature documenting exposure to CLCW as a cause of musculoskeletal pathologic conditions. Disease specific discussion: There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions. Scientific review (studies and risk factors showing causal relationship with the condition): There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions.”

In September 2019, the Veteran’s treatment records form the Neurosurgical Associates of San Antonia were associated with the claims file. Therein, the provider relayed that, “(the Veteran’s) symptoms include continued prominent pain in the low back . . . moderate to severe in intensity, duration over the last several decades. Timing is related by (the Veteran’s) recollection to an injury in the service which was documented where he was jumped on by a commanding officer as pert or an exercise/drill.” The provider opined that, “(the Veteran) has multilevel lumbar degenerative pathology and ongoing lumbar symptoms which certainly could have been exacerbated as a result of the trauma he describes as being sustained sudden axial load with forceful trauma of abrupt load on his shoulders and neck. I believe it is more likely than not that his symptoms could be the result of exacerbating issue in the service (emphasis added).”

In September 2019, the Veteran submitted a statement along with a portion of the August 2019 SSOC. Therein, the Veteran posited that, “I was hit in the back with a surfboard (April 1977). This did not occur a Camp Lejeune. The accident had to during my previous ‘duty station.’ It had nothing to do with the contaminated water as the SSOC is basing it all on. It has to do with an injury / injuries that I sustained during ‘active duty.’”

In September 2019, a statement from the Veteran was associated with the claims file. Therein, the Veteran posited that, “it was constantly persistent including the upper back/neck area while on active duty. Since I didn’t have health insurance after being discharged, I had to constantly self-medicate due to the ongoing back and knee issues.”

The Board observes that, in December 2017, the issues listed on the title page were addressed and remanded. At that time, the Board provided multiple queries for each of the service-connection claims listed above. The Board also directed that, “(t)he VA examiner must provide a clear explanation for the opinion . . ..”

In response to the Board’s remand directives, the January 2019 VA examiner supplied the following responses for each of the entitlement claims: “(d)uring service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.” The Board observes that the 2019 VA examiner did not address the Veteran’s duties as a wireman and field radio operator for this entitlement claim. Therefore, the Board finds that the AOJ has not substantially complied with the 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Consequently, another remand is warranted to obtain adequate VA examination report, which is necessary for resolution of the Veteran’s entitlement claim for service connection for a cervical spine disorder.

4. Entitlement to service connection for a thoracolumbar spine disorder, to include as due to exposure to contaminated water at Camp Lejeune, is remanded.

In June 2009, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for entitlement to service connection for a thoracolumbar spine disorder.

In January 2010, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured thoracolumbar spine conditions. For circumstances and initial manifestations of injury, the VA examiner reported that, “no specific inciting event or injury gradual onset. The veteran reports the thoracolumbar spine condition began with mild back pain and stiffness, but pain has progressively worsened and motion has become significantly restricted. The veteran denies any problems with the thoracolumbar spine prior to active duty.” The VA examiner reported a thoracic discectomy with no history of trauma to the spine. The VA examiner opined that, “lumbar spine degenerative disc disease is less likely as not (less than 50/50 probability) caused by or a result of in service injuries/conditions.” The VA examiner supplied the following rationale: “the Veteran had mechanical low back pain which is common. He did not have any evidence of permanent disability at the time he left the service. He was able to work from 1980 to May 2008. This is more likely normal age related degeneration.”

In September 2014, the Veteran service treatment records (STRs) were associated with the claims file. Therein, in April 1977, the presented with complaints of spinal pain after being struck in the upper back with surfboard. At that time, the Veteran relayed that he felt sharp pain along middle portion of back, and the pain had gotten worse. In April 1979, the Veteran was treated for upper back pain. The military provider noted that been ongoing after an auto accident two years prior. In November 1978, the STRs recorded low back pain due to physical exercise.

In April 2017, a statement from the Veteran’s spouse was associated with the claims file. Therein, it was relayed that the Veteran discussed his thoracic pain with her in 1986.

In January 2019, the Veteran underwent a VA examination to address the nature and etiology of any current thoracolumbar spine disorder. The VA examiner noted a diagnosis for thoracolumbar degenerative disc disease status post discectomy. The VA examiner reported the following medical history: “(b)ack injured during a forced march in the sand with approximately 300# on his back. Sergeant jumped from 8' sand dune onto his back.” The VA examiner opined that, “(t)he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA examiner supplied the following rationale: “(d)uring service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.”

In an April 2017 medical opinion, the Veteran’s provider relayed that, “(the Veteran) has multilevel lumbar degenerative pathology and ongoing lumbar symptoms could have been exacerbated as a result of the trauma he describes . . ..” The provider opined that, “I believe it is more likely than not that his symptoms could be the result of exacerbating issues in the service.”

In June 2019, a VA Medical Opinion Disability Questionnaire (DBQ) was associated with the claims file. After review of the claims file, the VA physician noted status post lumbar laminectomy. The VA physician opined that, “(e)xposure to contaminated water at Camp Lejeune is not the cause of any musculoskeletal disorders noted above.” The VA physician supplied the following rationale: “(a)fter reviewing the ‘ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases’, published in 2017, there are no studies cited that document the condition in question as a sequela to exposure to CLCW. Furthermore, there is no evidence in the known Medical literature documenting exposure to CLCW as a cause of musculoskeletal pathologic conditions. Disease specific discussion: There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions. Scientific review (studies and risk factors showing causal relationship with the condition): There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions.”

In September 2019, the Veteran’s treatment records form the Neurosurgical Associates of San Antonia were associated with the claims file. Therein, the provider relayed that, “(the Veteran’s) symptoms include continued prominent pain in the low back . . . moderate to severe in intensity, duration over the last several decades. Timing is related by (the Veteran’s) recollection to an injury in the service which was documented where he was jumped on by a commanding officer as pert or an exercise/drill.” The provider opined that, “(the Veteran) hs multilevel lumbar degenerative pathology and ongoing lumbar symptoms which certainly could have been exacerbated as a result of the trauma he describes as being sustained sudden axial load with forceful trauma of abrupt load on his shoulders and neck. I believe it is more likely than not that his symptoms could be the result of exacerbating issue in the service.”

In response to the Board’s remand directives, the January 2019 VA examiner supplied the following responses for each of the entitlement claims: “(d)uring service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.” The Board observes that the 2019 VA examiner did not address the Veteran’s duties as a wireman and field radio operator for this entitlement claim. Therefore, the Board finds that the AOJ has not substantially complied with the 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Consequently, another remand is warranted to obtain adequate VA examination report, which is necessary for resolution of the Veteran’s entitlement claim for service connection for a thoracolumbar spine disorder.

5. Entitlement to service connection for a left foot disorder, to include as due to exposure to contaminated water at Camp Lejeune, is remanded.

In June 2009, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for entitlement to service connection for a left foot disorder.

In December 2009, the Veteran’s treatment records from Christus Santa Rosa Surgical Center were associated with the claims file. Therein, a provider reported that, “male who presents with chief complaint of severe pain in his left foot and knee in arch of his left foot. He relates that this started about 30 years ago while he was in the Marine Corp. He sustained an injury where someone jumped on his back cause his knees to buckle and his foot to roll in. He had significant amount of pain and felt a pop. He was placed in a knee splint the injury was apparently well documented. After that he notice that the arch of his left foot began to collapse and slowly become weaker. He notices a significant difference of his left foot as compared to the right. It is more collapsed and tilts outward. He feels that this caused his knee to rotate in as he has had significant problems with that. The pain is getting more progressive and now he feels like he is walking on the arch of his foot causing some callus and significant amount of pain.”

In September 2014, the Veteran service treatment records (STRs) were associated with the claims file. After review, the Board observes that the Veteran’s STRs do not contain a notation due to complaints for and/or treatment of the Veteran’s left foot.

In April 2017, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). At that time, the Veteran testified that, “when the gunnery sergeant jumped on my back and my left leg collapsed and gave out. It actually collapsed the arch of my foot from the weight. Uh, I have, I now have, uh, uh, five brackets and 11 screws in my foot.” The Veteran testified that he had the first left foot surgery in 2009, because “I just couldn’t handle the pain anymore.”

In January 2019, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured left foot disorder. The VA examiner noted diagnoses for bilateral pes planus, left foot degenerative arthritis, and left foot surgical repair of non-unions of naviculocuneiform and talonavicular joints. The VA examiner supplied the following medical history: “L foot injured during a forced march in the sand with approximately 300# on his back. Sergeant jumped from 8' sand dune onto his back and caused both legs to collapse, with torn cartilage in both knees and collapsed arch in left foot. When he complained was told he had flat feet. When he lost his arch he was forced to walk on the inside of his arch until finally had to have surgery in 2009 & 2010.” The VA examiner opined that, “(t)he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA examiner supplied the following rationale: “(d)uring service, condition was acute only. There is no evidence of chronicity of care during service or upon discharge. A nexus has not been established.”

In June 2019, a VA Medical Opinion Disability Questionnaire (DBQ) was associated with the claims file. After review of the claims file, the VA physician noted status post repair of tarsal bone nonunion. The VA physician opined that, “(e)xposure to contaminated water at Camp Lejeune is not the cause of any musculoskeletal disorders noted above.” The VA physician supplied the following rationale: “(a)fter reviewing the ‘ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases’, published in 2017, there are no studies cited that document the condition in question as a sequela to exposure to CLCW. Furthermore, there is no evidence in the known Medical literature documenting exposure to CLCW as a cause of musculoskeletal pathologic conditions. Disease specific discussion: There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions. Scientific review (studies and risk factors showing causal relationship with the condition): There is no evidence in the known medical literature or in the compendium compiled by the ATSDR in 2017 documenting any medical studies concluding that exposure to CLCW causes acute or chronic musculoskeletal conditions.”

In response to the Board’s remand directives, the January 2019 VA examiner supplied the following responses for each of the entitlement claims: “(d)uring service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.” The Board observes that the 2019 VA examiner did not address the Veteran’s duties as a wireman and field radio operator for this entitlement claim. Therefore, the Board finds that the AOJ has not substantially complied with the 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Consequently, another remand is warranted to obtain adequate VA examination report, which is necessary for resolution of the Veteran’s entitlement claim for service connection for a left foot disorder.

Consequently, the matters are REMANDED to the agency of original jurisdiction (AOJ) for the following action:

1. If available, the AOJ must obtain addendum examinations reports from the January 2019 VA examiner.

The VA examiner must consider and address the Veteran’s in-service duties for his MOS as a wireman and field radio operator, which involved training exercises with combat jumps of telephone poles that caused repeated impact to the joints.

The VA examiner must review and consider the Veteran’s credible description of the training combat jumps from telephone poles. The VA examiner must also review the claims file, to include this remand, in their entirety.

Afterward, the VA examiner must opine on whether is it at least as likely as not (i.e., 50 percent or more probable) that Veteran’s currently diagnosed bilateral shoulder, cervical spine, thoracolumbar spine, and left foot disorders are causally related to the Veteran’s active service in the United States Marine Corps from 1975 to 1980.

2. The AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the service connection claims for bilateral shoulder, cervical spine, thoracolumbar spine, and left foot disabilities. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond.

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board RLBJ, 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.