Citation Nr: 1337482 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-01 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for status post spinal fusion and laminectomy. 2. Entitlement to service connection for prostate cancer, secondary to herbicide and/or chemical exposure. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from November 1961 to October 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran provided Social Security Administration (SSA) records which indicate that he is in receipt of SSA disability benefits. However, it appears that there are some documents that were considered in connection with his SSA claim that are not associated with the case file. Specifically, documents such as the Veteran's initial SSA disability determination and his October 2007 SSA appeal hearing transcript are not currently part of the record. The Board finds that there is a reasonable possibility that records held by SSA could help the Veteran substantiate his claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Hence, on remand, efforts to obtain the SSA records must be made until the records are either obtained or it is determined that the records do not exist or that continuing efforts would be futile. 38 U.S.C.A. § 5103A (West 2002). In April 2008, the Veteran was afforded a VA spinal examination to determine the etiology of his back condition. The examiner reviewed the case file; noted the Veteran's medical history; and opined that the Veteran's condition, "[was] not due to, or caused by [his] military service." However, the examiner did not offer any rationale for the opinion. The Board finds this opinion inadequate for adjudication purposes as it is conclusory. Once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the April 2008 VA examination was inadequate, the Veteran should be afforded another VA examination in conjunction with his claim. In April 2008, the Veteran was afforded a VA genitourinary examination to determine the etiology of his prostate cancer. The examiner reviewed the case file; noted the Veteran's June 1995 radical retropubic prostatectomy and residual erectile dysfunction; and opined that the Veteran's prostate cancer and residual erectile dysfunction, "have not affected [the] [V]eteran's activities of daily living or his occupational/professional duties." However, the examiner did not address whether the Veteran's prostate cancer was related to service. Therefore, the Veteran must be afforded another examination. See Barr v. Nicholson, supra. The Board notes that although the Veteran claims that his prostate cancer was due to his exposure to Agent Orange while in service, there is no competent evidence of record that shows that the Veteran was exposed. In that regard, the Veteran's active service was from November 1961 to October 1964, with service in Korea from August/September 1963 to October 1964. The VA has created a presumption for Veterans who served between April 1, 1968 and August 31, 1971 in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied. See 38 C.F.R. § 3.307 (a)(6)(iv)(2013). Although the Veteran served in Korea, he served outside of the time in which the VA has recognized herbicide usage and he has not provided any direct evidence to prove that he or his unit were otherwise exposed. See M21-1MR, Part IV, Subpart. ii., 2.C.10.p. However, the Board notes that the Veteran has also asserted that he was exposed to chemicals such as dichlorodiphenyltrichloroethane (DDT) and diesel fuel to treat insect infestation while stationed in Korea. See Veteran's May 2008 Statement. As such, the Board finds that a VA medical opinion must be obtained which addresses the issue of whether the Veteran's prostate cancer was caused or aggravated by exposure to a variety of chemicals in service, to include DDT and diesel fuel. Accordingly, the case is REMANDED for the following action: 1. Contact SSA and obtain any administrative decisions and all medical records used in adjudicating the Veteran's award of disability benefits. Once obtained, all documents must be permanently associated with the claims file. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims file. 2. Then, arrange for the same examiner who conducted the April 2008 spinal examination, if possible, to review the claims folder for the purpose of clarifying the nature and etiology of any back condition. If the April 2008 examiner is unavailable, the file should be referred to another similarly qualified medical professional. If the examiner finds that a new VA examination is necessary, the Veteran should be scheduled for a new VA examination. If a new examination is necessary, the claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. The examiner is asked to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater possibility) that any current back condition is related to active military service. A complete rationale for any opinion provided must be included in the report of the examination. A medical conclusion without a rationale based upon the pertinent medical evidence and the medical expertise of the examiner would be of limited value. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Then, arrange for the same examiner who conducted the April 2008 genitourinary examination, if possible, to review the claims folder for the purpose of clarifying the nature and etiology of the Veteran's prostate cancer and residuals. If the April 2008 examiner is unavailable, the file should be referred to another similarly qualified medical professional. If the examiner finds that a new VA examination is necessary, the Veteran should be scheduled for a new VA examination. If a new examination is necessary, the claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer was caused by exposure to a variety of chemicals, including DDT and diesel fuel. Any opinion provided must include a detailed rationale of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Then, the RO or the AMC should readjudicate the issueS on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims files are returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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. 2013). _________________________________________________ MICHAEL A. PAPPAS 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 your appeal. 38 C.F.R. § 20.1100(b) (2013).