Citation Nr: 0640092 Decision Date: 12/29/06 Archive Date: 01/05/07 DOCKET NO. 00-20 667 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for prostate cancer, claimed as due to herbicide and/or pesticide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Hager, Associate Counsel INTRODUCTION The veteran had active service from July 1958 to March 1962, October 1962 to October 1965, and July 1966 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) from a November 1999 rating decision in which the RO denied service connection for adenocarcinoma, prostate, as a result of herbicide exposure. The veteran filed a notice of disagreement (NOD) in June 2000 and the RO issued a statement of the case (SOC) in September 2000. The veteran filed a substantive appeal (via a VA Form 9) in September 2000. In August 2006, the veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge at the San Antonio satellite office of the RO; a transcript of that hearing is of record. For the reasons expressed below, the claim on appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. During his Board hearing and elsewhere, the veteran claimed that he was exposed to herbicides and pesticides during service and that this exposure caused his prostate cancer for which he underwent a prostatectomy in October 1998. Prostate cancer is on the list of diseases associated with exposure to herbicide agents that are presumptively service connected in veterans exposed to an herbicide agent. 38 C.F.R. § 3.309(e) (2006). The evidence does not reflect that the veteran had service in Vietnam, and so he is not entitled to the presumption that he was exposed during service to an herbicide agent, which is defined as a chemical in an herbicide used in support of military operations in Vietnam and exposure to which is presumed in veterans who served there. See 38 C.F.R. §§ 3.307(a)(6)(i), (iii) (2006). The veteran is nevertheless entitled to establish service connection, on a direct basis, for prostate cancer based on exposure to an herbicide agent. McCartt v. West, 12 Vet. App. 164 (1999) (citing Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994)); see also 38 U.S.C.A. § 1113(b) (West 2002) (nothing in the laws relating to presumptions prevents the granting of service connection on a direct incurrence basis). The veteran's personnel records reflect that he served in Okinawa from January 1959 to April 1961, and in Thailand from September 1967 to September 1968. In an August 2004 letter to the Ranking Member of the House of Representatives' Committee on Veterans' Affairs, an Air Force official stated that its Historical Research Agency (AFHRA) was unable to find any documentation referring to Agent Orange, herbicide, defoliant, or dioxin in conjunction with Okinawa, although an attachment to the letter listed numerous Operation Red Hat documents that indicated possible storage of herbicides and chemical agents there between August 1969 and March 1972. In a January 2003 letter and attachment to the VA Chief Officer for Public Health and Environmental Hazards, the Assistant Secretary of Defense listed various herbicide orange operations at specific times and geographic locations including three such operations in Thailand between 1964 and 1965. Thus, the veteran served in Okinawa before the dates of possible herbicide storage there, and served in Thailand after the dates of herbicide operations there. In addition, the National Personnel Records Center (NPRC) indicated in November 1999 and May 2005 that there was no record of exposure to herbicide in the veteran's record. Thus, the veteran's claimed exposure to herbicides during service has not been established. However, the veteran's statements and testimony at the hearing indicate that he is also claiming that his prostate cancer is due to his exposure to pesticides during service. 38 U.S.C.A. § 5103A(d) provides that VA will provide a medical examination or obtain a medical opinion if the record including lay or medical evidence contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. See also 38 C.F.R. § 3.159(c)(4) (2006); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the evidence reflects that the veteran has been treated for prostate cancer since October 1998. The evidence also reflects that during his service from July 1958 to March 1962, which includes his service in Okinawa, the veteran's Military Occupation Specialty (MOS) was motor vehicle operator, and letters from fellow servicemen indicate that the veteran was responsible for driving trucks from which various substances were sprayed. For example, in an April 2006 letter the commanding officer of the veteran's Marine unit wrote that the veteran was routinely assigned to drive a military vehicle that sprayed insecticides without any protection such as a mask. In addition, a Combat Infantry Control Officer recounted in an August 2006 letter that while in Thailand, the veteran and others were quartered in open bay unairconditioned screened barracks that were susceptible to the spray fogging of the area with pesticides. The evidence also includes various statements by VA and private physicians indicating that the veteran's prostate cancer was or could be related to exposure during service to herbicides and/or pesticides. However, those opinions all conflated the herbicide and pesticide exposure, and most used speculative language that did not provide the degree of certainty required for medical nexus evidence. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). See also Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). For example, in May 2006, a Brooke Army Medical Center staff urologist opined that it is as likely as not that the veteran's prostate cancer is associated with his herbicide/pesticide exposure; that same facility's assistant chief urologist commented that it "is not inconceivable" that the veteran's greatest risk factor for developing prostate cancer "may have been" his extensive exposure to various defoliating chemicals and herbicides; the Walter Reed Army Hospital director of urologic oncology opined, in August 2000, that the veteran was apparently exposed to herbicides in Okinawa and that although it cannot be said for certain that herbicide exposure causes cancer, it seems that the veteran meets the established criteria for the nexus between his exposure and his cancer; and, in August 2006, Dr. "L.A." wrote that it appears that the veteran received significant chemical exposure to herbicides and pesticides during military service, and that it was his opinion that the veteran's cancer has been contributed to if not caused by his exposure to hazardous chemicals. Thus, based on the veteran's MOS and the supporting lay evidence, and with resolution of all reasonable doubt in the veteran's favor (see 38 C.F.R. § 3.102 (2006)), the Board finds that he was exposed to pesticides during service. However, the medical opinions addressing the question of medical nexus are not specific to pesticide exposure, and are not sufficiently definitive to resolve the claim on appeal. Accordingly, a VA examination to obtain a more definitive medical opinion as to the relationship, if any, between the veteran's in-service pesticide exposure and his prostate cancer, is warranted. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The RO should arrange for the veteran to undergo VA examination, by a physician, at an appropriate VA medical facility. The veteran is hereby advised that failure to report to the scheduled examination without good cause, may well result in a denial of the claim. 38 C.F.R. § 3.655 (2006). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report to the scheduled examinations, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. Prior to readjudication of the claim, to ensure that all due process requirements are met, the RO should give the veteran another opportunity to present information and/or evidence pertinent to his claim on appeal. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2005) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the veteran to submit all evidence in his possession, and ensure that its notice to the veteran meets the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (as regards the five elements of a claim for service connection), as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2006). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to including obtain further medical opinion to resolve the claim, as indicated below), prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should invite the veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The RO should ensure that its notice meets the requirements of Dingess/Hartman, cited to above, as appropriate. The RO's letter should also clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify him and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses from each contacted entity are associated with the claims file, or a reasonable time period for the veteran's response has expired, the RO should arrange for the veteran to undergo a VA oncology examination, by a physician, at an appropriate VA medical facility. The entire claims file must be made available to the physician designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. After review of the claims file and examination of the veteran, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's prostate cancer is related to in-service pesticide exposure. The physician should set forth all examination findings, along with the complete rationale for the opinion expressed, a printed (typewritten) report. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of additional evidence and legal authority considered, as well as clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2006).