Citation Nr: 1307501 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-06 888 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a respiratory disorder, claimed as breathing problems, secondary to herbicide and/or chemical exposure. 2. Entitlement to service connection for prostate cancer, secondary to herbicide and/or chemical exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2005 and March 2006 rating decisions issued by the VA RO in Houston, Texas, which denied the Veteran's claims for service connection for a respiratory disorder and for prostate cancer respectively, both claimed as secondary to herbicide and/or chemical exposure. The Veteran testified at a March 2010 Travel Board hearing held at the Houston, Texas, RO. A transcript of that hearing has been associated with the claims file. The Board also notes that the Veteran's appeal also initially included the issue of entitlement to service connection for glaucoma, claimed as being due to a diesel fuel spill. That claim was denied by the Board in a November 2010 decision and remand. Accordingly, the issue of the Veteran's entitlement to service connection for glaucoma is not presently on appeal before the Board. The Veteran's claims for entitlement to service connection for a respiratory disorder and for prostate cancer were remanded for further development in November 2010 and March 2012. The development action ordered in the most recent remand will be discussed below. Additionally, the Board notes that the Virtual VA paperless claims file contains an October 2012 VA Form 9 Appeal, in which the Veteran indicated that, per the September 10, 2010, statement of the case (SOC), he wished to continue his appeal to the Board. He indicated that he feels service connection for hypersomnia with sleep apnea is warranted and wished to be scheduled for a hearing. The Board notes that the Virtual VA paperless claims file contains a January 2011 rating decision denying service connection for hypersomnia with sleep apnea. However, neither the claims file, nor the Virtual VA paperless claims file, contains a SOC or a notice of disagreement (NOD) with regard to this issue. As such, the Board is unable to determine whether this issue has been properly appealed based on the evidence currently of record and may not take jurisdiction of this issue at this time. Further, the Board notes that, based on some of the Veteran's complaints, a March 2011 VA examiner discussed cardiovascular issues as well as respiratory issues. The claim on appeal has been characterized and adjudicated throughout the course of this appeal as a respiratory disorder, claimed as breathing problems. However, based on the Veteran's assertions, the Board finds that the issue of entitlement to service connection for a cardiovascular condition or a heart condition has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for prostate cancer, secondary to herbicide and/or chemical exposure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran is not shown by competent medical evidence to have bronchiectasis that manifested within 1 year from discharge from service or a respiratory disorder that is etiologically related to a disease, injury, or event in service, to include exposure to herbicides or chemicals. CONCLUSION OF LAW A respiratory disorder was not incurred in or aggravated by active service, and may not be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection for a respiratory disorder, claimed as breathing problems, secondary to herbicide and/or chemical exposure, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA letters dated in April 2005 and March 2012 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the March 2012 letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. The Board notes that this issue was remanded in March 2012 in part to provide the Veteran a VA 21-4142 release form and to request the current name(s) and current address(es) for any private treatment providers who have treated the Veteran for his breathing problems since June 2010. The Board notes that the Veteran submitted two separate VA 21-4142 release forms, one for treatment records from R.G., M.D., and one for treatment records from Dr. C.J.R. and Dr. M. These forms, however, listed the condition being treated as a heart condition. As the condition being adjudicated is a respiratory disorder, the Board does not find it necessary to obtain these medical records in order to adjudicate the Veteran's respiratory disorder claim. Moreover, private treatment records from Dr. R.J.G. and Dr. R.G.M. were associated with the claims file. Therefore, all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. Additionally, the Board notes that all development requested in the March 2012 Board remand have been met. As such, the Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran underwent a VA respiratory examination in March 2011. The examiner reviewed the claims file, examined the Veteran, and noted his assertions. The Board finds this examination report and opinion to be thorough and complete. Therefore, the Board finds this opinion is sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include bronchiectasis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). In this regard, it is noted that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The diseases alluded to above include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). The Veteran is seeking entitlement to service connection for a respiratory disorder due to daily exposure to chemicals and agent orange while working in a warehouse during active duty. Specifically, the Veteran does not allege that he served in the Republic of Vietnam. Rather, he asserts that he was exposed to chemicals, to include agent orange, diesel fuel, gasoline, asbestos, and petroleum tank residue, while stationed at bases in the U.S. He has contended in his various submissions and during his March 2010 hearing before the undersigned that when the Veteran was quartermaster he moved something in the warehouse that he was told was agent orange by his Major. The Veteran was told to be careful with it, but some of the barrels looked like they had spillage on them and he was told to put them aside. A review of the Veteran's service treatment records reveals no diagnoses of a respiratory disorder of any kind. On his November 1960 pre-induction Report of Medical History, the Veteran reported pain or pressure in his chest but was noted as having no cardiovascular disease. In an August 1962 service treatment record, the Veteran complained that he was sprayed with diesel fuel under pressure which went into both of his eyes. In November 1962, the Veteran complained of tachycardia and dyspnea. He was noted as having paroxysmal supraventricular tachycardia at rapid rate. A fellow service member, J.G., sent a letter in June 2006 attesting that both he and the Veteran worked inside petrol tanks removing mud and residue without much protection. An acquaintance of the Veteran, J.P., recently submitted a statement recalling that the Veteran complained of breathing problems while at summer camp at Fort Hood, Texas. Post-service, the claims file contains a September 1971 medical record noting the Veteran's complaints of shortness of breath. He was diagnosed with function dyspnea. The Veteran reported that he had difficulty catching his breath the whole time he was in service. In a May 1972 medical record, the Veteran complained of shortness of breath on exertion. In a June 1990 medical questionnaire, the Veteran complained of periods of coughing and attacks of wheezing that made him feel short of breath. A May 1992 chest x-ray report showed a questionable 6 mm. nodular density in the left peri-hilar region and noted that vessel on end versus true pulmonary parenchymal lesion could not be ruled out. A similar density was also shown in the left basilar region, which was noted probably representing nipple shadow, although intrapulmonary lesion could not be totally excluded. There was no evidence of other pulmonary nodule, infiltrates, CHF, or pneumothorax. More recently, the claims file contains medical records from Dr. R.G, the Veteran's primary care physician. A March 2010 chest x-ray report suggested a possible lung nodule. However, further testing was recommended. Dr. R.G. opined in a May 2010 letter that, in regard to the Veteran's breathing problems, he has a long history of complaints of shortness of breath and difficulty breathing that may be related to toxin exposure he suffered in service. A December 2010 chest x-ray from this physician revealed that the lungs were clear. A nodule-like density in the left hilar seen on previous examination was unchanged, and on a CT was shown to be a pulmonary artery seen end on, simulating a pulmonary nodule. No pleural or significant findings were seen, and the impression was a negative chest for acute disease. A March 2012 chest x-ray report revealed a stable chest. In a June 2010 letter, Dr. R.G.M. stated that he has treated the Veteran since 1982 and currently treats him for various disorders, including breathing problems. Dr. R.G.M. opined that the Veteran's breathing problems are "linked to his military service." In a November 2010 private medical record from Alice Sleep Lab, the Veteran was diagnosed with hypersomnia with sleep apnea. The Board notes that the Veteran underwent a VA examination in March 2011. The examiner reviewed the claims file. The Veteran reported that he has had intermittent problems with sense of blacking out and shortness of breath accompanied by a sense of his heart racing. The Veteran reported that his symptoms started in his early twenties, when he had episodes of sudden onset of his heart racing 5-6 times per year. It was noted that the Veteran was found to have congestive heart failure in the fall of 2010 and that he was diagnosed with obstructive sleep apnea in November 2010. The examiner noted that he discussed the Veteran's care with his private care provider, who was not aware of the Veteran bring diagnosed or treated for a respiratory problem. The examiner determined that there is no evidence from this examination or his service treatment record of a primary lung condition; therefore, these is no diagnosis of a lung condition at this examination. The examiner noted that the Veteran's intermittent episodes of palpations accompanied by near syncope and shortness of breath since his early twenties are most consistent with paroxysmal supraventricular tachycardia. The Veteran's episodes of not breathing at night and snoring for many years are most consistent with his known diagnosis of obstructive sleep apnea. The Veteran's shortness of breath at rest and on exertion in late 2010 and early 2011 are consistent with congestive heart failure associated with atrial fibrillation. There is no evidence from his service treatment record or this examination of a lung condition. The examiner continued on to note that the Veteran served with the 596th Quartermaster Company, and that they were charged with monitoring and shipping different fuels and toxins, including agent orange. (However, the examiner noted that he could not find specific documentation of agent orange in the service treatment records.) In addition, the Veteran was involved in cleaning storage tanks, which had held diesel fuel and other petroleum products. He was admitted to Kenner Army Hospital on November 26, 1962, for a rapid heart rate diagnosed as paroxysmal supraventricular tachycardia. He gave a history at that time of having episodes of similar nature intermittently about every 2 months for the previous 2-3 years. The episode in November 1962 resolved with rest, and there was no evidence of cardiac or pulmonary found and he was dismissed. The Veteran marked "NO" on shortness of breath and asthma on his periodic health examinations in 1960, 1961, and 1963. The lung examinations by the physician were normal at the time of these examinations. He was sprayed with diesel fuel when filling reservoir on August 18, 1962; he suffered a chemical conjunctivitis of his eyes but there is no documentation of any lung complaints or diagnosis. He complained of "cold" and was seen on February 24, 1963; he was diagnosed with coryza and treated with APC, nose drops, and propadiene. The examiner noted that there is no documentation of respiratory complaints in the notes by his private care provider starting on October 28, 2005, and continuing until the last noted of April 6, 2010, expect for August 18, 2009, when he complained of snoring and nasal congestion and a sleep study was recommended. There is no documented evidence of diagnosis or treatment of a respiratory problem in the VA records from 2005 to 2010. Chest x-ray report on March 2, 2011, was normal. Personal conversation with his cardiologist documented that he had found no evidence of underlying lung disease and that had found no evidence of ischemic heart disease. Personal conversation with another private care provider documented that he had not diagnosed or treated the Veteran for a respiratory problem. The examiner concluded by noting that the condition of a respiratory disorder or breathing disorder is less likely as not caused by or a result of service in the military. The examiner noted that the Veteran had 3 separate issues referable to his respiratory complaints. With regard to the first issue of recurrent episodes of shortness of breath since his early twenties, paroxysmal supraventricular tachycardia is a developmental problem of the heart conduction system and is not related to any exposure or other activities associated with his military service. Therefore, the examiner opined that the shortness of breath associated with his paroxysmal supraventricular tachycardia is less likely as not related to his service in the military. With regard to his second issue of episodes of not breathing for prolonged periods of time when he is asleep, he has been diagnosed with obstructive sleep apnea. There is no documentation of problems with his sleep pattern in the service treatment records and exposure to chemical or toxins do not cause sleep apnea. Therefore, the examiner opined that the respiratory disorder (sleep apnea) is less likely as not related to his service in the military. With regard to the third issue, the examiner noted that the Veteran has been treated for congestive heart failure and atrial fibrillation. There is no documentation in the service treatment record of atrial fibrillation or congestive heart failure. The Veteran has no diagnosis of ischemic heart disease, which would be the only disease related to exposure to toxins, such as agent orange, that would cause atrial fibrillation. Therefore, the examiner opined that the shortness of breath due to congestive heart failure associated with atrial fibrillation is less likely as not related to his time in service. Finally, the examiner concluded that the above problems individually and collectively are less likely as not related to the Veteran's service in the military. As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated bronchiectasis to a compensable degree within one year of discharge from active duty. As such, service connection for bronchiectasis cannot be granted on a presumptive basis under 38 C.F.R. § 3.309 (a). With respect to granting service connection for a respiratory disorder on a presumptive basis due to exposure to agent orange or herbicides, even if the Board were to presume that the Veteran was exposed to agent orange or herbicides during service, the evidence of record does not reflect that the Veteran has a respiratory disease or disability listed as being presumptively associated with exposure to agent orange or herbicides under 38 C.F.R. § 3.309(e). There is a presumption of service connection for respiratory cancers, but respiratory cancers are specifically defined in the governing laws and regulations as cancer of the lung, bronchus, larynx, or trachea. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). Therefore, as the Veteran has not been diagnosed with a respiratory disease listed under 38 C.F.R. § 3.309(e) as being presumptively associated with agent orange or herbicide exposure, service connection cannot be granted on a presumptive basis. With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). In this regard, the Board has considered both the May 2010 opinion from Dr. R.G. stating that, in regard to the Veteran's breathing problems, he has a long history of complaints of shortness of breath and difficulty breathing that may be related to toxin exposure he suffered in service, and the June 2010 opinion from Dr. R.G.M. stating that the Veteran's breathing problems are "linked to his military service." However, the Board finds both of these opinions to be inadequate, as neither of these physicians actually diagnosed the Veteran with a respiratory disorder or offered a rationale as to why they were not able to provide a respiratory diagnosis for the Veteran's claimed breathing problems. On the other hand, the March 2011 VA opinion was based on a review of the claims file, examination of the Veteran, discussion with the Veteran's private physicians, and a detailed rationale. This examiner specifically noted the Veteran as having obstructive sleep apnea, discussed why this condition was not related to service, and determined that there was no evidence of any other respiratory disorders. Additionally, the March 2011 VA examiner specifically noted that he discussed the Veteran's care with Dr. R.G.M. and he was not aware of the Veteran ever being diagnosed or treated for a respiratory problem. As such, the Board finds the March 2011 VA opinion to be the most probative evidence of record on the matter. Therefore, as the most probative medical opinion of record on the matter stated that the condition of a respiratory disorder or breathing disorder is less likely as not caused by or a result of service in the military, the Veteran's claim fails. See Shedden, supra. The Board acknowledges the Veteran's contentions that he has a respiratory disorder or breathing problems as a result of his active duty. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran, as a lay person has not been shown to be competent to offer opinions on complex medical questions, such as whether he has a current respiratory disorder related to his active duty service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Thus, his lay assertions suggesting diagnosis and etiology are far outweighed by the March 2011 VA medical opinion provided by the VA physician who had full access to the Veteran's medical history, to include his service treatment records, and offered a detailed rationale for his opinion. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a respiratory disorder, claimed as breathing problems, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for a respiratory disorder, claimed as breathing problems, secondary to herbicide and/or chemical exposure is denied. REMAND The Veteran is seeking entitlement to service connection for prostate cancer, secondary to herbicide and/or chemical exposure. After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of this claim. The Board notes that this issue was remanded in March 2012 in part to provide the Veteran a VA 21-4142 release form and to request the current name(s) and current address(es) for any private treatment providers who have treated the Veteran for his prostate cancer since June 2010. The Veteran resubmitted a previous release form signed August 8, 2007, for medical records related to prostate cancer from C.B., M.D. The Veteran crossed out the previous date on this form (April 2009) and wrote in June 4, 2012. Therefore, it appears that the Veteran was attempting to notify the Board that he recently received medical treatment that he felt should be obtained for his prostate cancer in June 2012 from C.B., M.D. VA has an obligation under the VCAA to assist claimants in obtaining evidence, to include relevant records from VA or private medical care providers. 38 C.F.R. § 3.159 (2012). As such, the Board finds that the issue of entitlement to service connection for prostate cancer, secondary to herbicide and/or chemical exposure must be remanded in order to obtain any relevant private treatment records that have not yet been associated with the claims file, to specifically include any medical records from June 2012 from C.B., M.D. regarding the Veteran's prostate cancer. Additionally, upon remand, any and all recent VA treatment records that have not yet been associated with the claims file should be obtained. Further, the Board notes that the Veteran underwent a VA examination in March 2011, at which the examiner determined that it is at least as likely as not that the Veteran's prostate cancer is related to his service in the military. The examiner based this opinion on the fact that VA has established that there is a link between agent orange and prostate cancer. As the evidence of record does not demonstrate that the Veteran was exposed to agent orange in service, the Board does not find this opinion sufficient to grant service connection for prostate cancer as a result of in-service exposure to agent orange. However, the Board notes that the Veteran has also asserted that he was exposed to a variety of chemicals in service, to include diesel fuel, gasoline, asbestos, and petroleum tank residue, while stationed at bases in the U.S. Moreover, his service treatment records support his assertion that he was exposed to diesel fuel in particular during service. 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 diesel fuel, gasoline, asbestos, and petroleum tank residue. Accordingly, the case is REMANDED for the following action: 1. Attempts should be made to obtain private treatment records relating to the Veteran's prostate cancer from June 2012 from C.B., M.D. If a new Authorization and Consent to Release Information form need be obtained to accomplish such, such a form should be obtained. Associate any records received, including negative responses, with the claims file. 2. Obtain any and all recent VA treatment records that have not yet been associated with the claims file. 3. The Veteran's claims file should be sent to the March 2011 VA examiner for an addendum opinion. If the prior examiner is not available, the claims folder should be sent to another examiner for review. 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. All findings should be reported in detail. Based on a review of the complete claims file, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran's prostate cancer was caused or aggravated by in-service exposure to a variety of chemicals, to include diesel fuel, gasoline, asbestos, and petroleum tank residue. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should explain the reasons behind any opinions provided. 4. Conduct any additional development deemed necessary, based on any newly received evidence. 5. Then, readjudicate the claim. In particular, review all the evidence that was submitted since the most recent supplemental statement of the case (SSOC) was issued. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review The Veteran 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs