Citation Nr: 1330254 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-04 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Don H. Jorgensen, Attorney at Law ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1960 to January 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, the matter was remanded for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action on his part is required. REMAND While the notice provisions of the Veterans Claims Assistance Act of 2000 appear to be satisfied, a review of the record found that further development is necessary for VA to satisfy its duty to assist the Veteran in the development of his claim. While the Board regrets the further delay in the disposition of this matter inherent with a second remand, the record simply has not been developed sufficiently, and is inadequate to properly address the matter at hand. The Veteran contends that while stationed at Andersen Air Force Base (AFB) on Guam, he was exposed to herbicides (Agent Orange) and other environmental toxins. In its research on this question, the RO found that 'tactical herbicides' (those used in combat operations) such as Agent Orange were not used on Guam, and that the evidence did not support a findings that the Veteran was exposed to 'tactical herbicides' while stationed on Guam. A document titled "The History of the U.S. Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides" (December 2006), noted that "the available documents confirmed that all pesticides used in these locations [including Guam] and other US Department of Defense installations worldwide were those commercially available and approved by AFPCB." The June 2011 Board remand directed the RO to arrange for exhaustive development to determine conclusively whether or not the Veteran was exposed to herbicides in service, specifically whether Agent Orange was used on Guam while the Veteran was stationed at Andersen AFB from October 1960 to April 1962. In November 2011 the Commander, of the 36th Wing (PACAF) Andersen AFB, Guam, responded to the RO's September 2011 inquiry in this matter. He stated that there was no documentation that "Agent Orange herbicide" was either present or utilized at Andersen Air Base. Thereafter, the Veteran's representative submitted additional argument, with an attached copy of an article entitled "Public Health Assessment Andersen Air Force Base Yigo, Guam"(by the Department of Health and Human Services(DHS) Agency for Toxic Substances and Disease Registry (ATSDR)) and stating that various contaminants, including dioxin (the active ingredient in Agent Orange) and other volatile compounds were found in contaminated soil on various sites at Andersen Air Force Base. The RO has continued to deny the Veteran's claim based on the official military certification that the Agent Orange herbicide was not used on Andersen Air Force Base. This certification has not been reconciled with the findings by another U.S. Government Agency tasked with monitoring/regulating environmental hazards that dioxin (the active ingredient in Agent Orange) was found in soil on the base. Furthermore, the Veteran's representative argues that service connection for the Veteran's prostate cancer is warranted on a "direct" basis on the basis that EPA testing found various other hazardous and carcinogenic materials on (or in proximity to) Andersen Air Force Base", including in dumps located directly below the end of Andersen's flight line (where the Veteran patrolled on foot as a security guard). The Veteran has submitted medical opinions by Dr. Wolfson that attribute his development of prostate cancer to exposure to herbicides/dioxin in service. Given the Veteran's diagnosis of prostate cancer and the evidence in the record suggesting he was exposed to hazardous/carcinogenic substances in service, the low threshold standard for a nexus opinion endorsed by the U. S. Court of Appeals for Veterans Claims in McClendon v. Nicholson, 20 Vet. App. 79 (2006) is met, and such opinion must be sought on remand. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should ask the Veteran identify any and all providers of evaluation and/or treatment he has received for his prostate cancer (that are not already of record) and submit releases for VA to secure such records. The RO should secure records (not already of record) from all providers identified. 2. The RO should arrange for further exhaustive development to conclusively establish whether or not the Veteran the exposed to dioxin and other hazardous carcinogenic materials (i.e., specifically those found at Andersen Air Force Base by the Agency for Toxic Substance & Disease Registry ATSDR)) during his service at Andersen Air Force Base, Guam from 1960 60 1962. Based on the development (which must account for the findings in the Public Health Assessment for Andersen Air Force Base) the RO must make a formal finding listing all environmental hazards found on, or in proximity to Andersen Air Force Base (and not shown to have clearly been placed there after the period of the Veteran's service). If none are determined to have been present, the RO must explain the basis for rejecting the findings by ATSDR. 3. After the development sought above is completed, the RO should arrange for the Veteran's claims file to be forwarded to an appropriate physician (oncologist, environmental health specialist, e.g.) for review and an advisory medical opinion. Based on review of the record (to include the findings regarding the Veteran's exposure to various dioxin and other contaminants/hazardous materials while serving on Guam, the consulting physician should provide an opinion that responds to the following: Based on the factual evidence of record, is it at least as likely as not (a 50% percent or better probability) that the Veteran's diagnosed prostate cancer is related to his exposure to dioxin and/or other any other toxic agents (as certified) while stationed at Andersen AFB on Guam from October 1960 to April 1962? The examiner must explain the rationale for the opinion, citing to supporting factual data. 4. The RO should then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 your appeal. 38 C.F.R. § 20.1100(b) (2013).