Citation Nr: 1512051 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 12-30 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for prostate cancer due to herbicide exposure. ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active military service from January 1978 to November 1984 and service in the United States Army Reserve. This case comes before the Board on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board previously remanded this claim for additional development in December 2013. The Board has reviewed the Virtual VA and Veterans Benefits Management System (VBMS) claims files. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is again required in this case to ensure the Veteran receives every possible consideration. VA does not appear to have fulfilled its duty to assist the Veteran in obtaining federal records. It appears that the Veteran is receiving benefits from the Social Security Administration (SSA); however, while the SSA requested records from VA, it does not appear that VA ever requested records from the SSA. See August 2009 SSA Request to VA. Further, the Veteran's complete personnel records do not appear to be associated with the claims folder. Service treatment records (STRs) and VA treatment records were obtained, but it does not appear that the Veteran's service personnel records (SPRs) were ever requested using Code 13. See October 2009 PIES Response (stating that the Veteran's SPRs were retired to Code 13). VA should make efforts to obtain these documents. Further, VA treatment records contain competent evidence that the Veteran was diagnosed with prostate cancer and the literature cited in his October 2012 statement suggests that it may be associated with his active service; however, the Veteran has not been provided a VA examination See Fred A. Wilcox, Scorched Earth: Legacies of Chemical Warfare in Vietnam 1 (2011) ("Nearly forty years after the last spray mission, scientists continue to find high levels of dioxin in the food and water near abandoned military bases . . . ." ); Wayne Dwernychuk et al., Dioxin Reservoirs in Southern Viet Nam: A Legacy of Agent Orange, 47 Chemosphere 117-137 (2002) (finding that between 1996 and 1999 "very high levels of 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD)" were found in samples taken from soil, fish, ducks, and humans near a former military base that had been occupied from 1963 to 1966); see also November 2012 Statement (citing other articles as support). While the Veteran did not serve in Korea during the period relevant period for purposes of presumptive service connection, other theories of entitlement, such as direct service connection, must also be considered. The Veteran is competent to report having seen what he thought were herbicides being sprayed while he was stationed in Korea at Camp Casey during 1981 and 1982; therefore, the possibility of in-service exposure to chemicals other than herbicides should also be considered. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The record therefore lacks sufficient evidence to decide the claim, as the Board lacks the medical expertise necessary to determine the nature and etiology of any prostate cancer and the Veteran has not yet been provided a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). An examination is warranted. In addition, VA also does not appear to have fulfilled its duty to notify the Veteran, as no formal finding was issued and sent to the Veteran explaining the efforts made to corroborate his asserted herbicide exposure and why exposure was not conceded. See April 2014 Statement (stating that he was never provided the findings of the Joint Records Research Center (JSRRC) regarding his possible herbicide exposure). VA should send to the Veteran a formal finding that considers the documents submitted by the Veteran with his October 2012 substantive appeal. See supra. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request information as to whether he is in receipt of SSA disability benefits and ask him to identify the disabilities upon which any favorable decision was made. 2. Make efforts to obtain any outstanding treatment records, including from VA, dated since January 2013, and, if any SSA records are potentially relevant to the current claim, all relevant SSA records. Please also obtain any SPRs that were retired to Code 13. Associate with the claims file and send the Veteran a copy of any efforts. 3. Then, issue a formal finding regarding the Veteran's potential exposure to herbicides and sprayed chemicals other than herbicides while stationed in Korea in 1981 and 1982. The finding should consider the literature cited in the Veteran's October 2012 statement. See Fred A. Wilcox, Scorched Earth: Legacies of Chemical Warfare in Vietnam 1 (2011) ("Nearly forty years after the last spray mission, scientists continue to find high levels of dioxin in the food and water near abandoned military bases . . . ." ); Wayne Dwernychuk et al., Dioxin Reservoirs in Southern Viet Nam: A Legacy of Agent Orange, 47 Chemosphere 117-137 (2002) (finding that between 1996 and 1999 "very high levels of 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD)" were found in samples taken from soil, fish, ducks, and humans near a former military base that had been occupied from 1963 to 1966); see also November 2012 Statement (citing other articles as support). Send a copy of the finding to the Veteran. 4. Then, after any outstanding records have been received, schedule the Veteran for an examination by an appropriate examiner regarding the nature and etiology of his prostate cancer. Provide the examiner with the claims file, including a copy of this REMAND and any pertinent evidence in Virtual VA or VBMS not already of record. The examiner should review this Remand, the claims file, the Veteran's testimony, the documents submitted and cited by the Veteran, and VA's formal finding regarding exposure to herbicides or other sprayed chemicals. The examiner should perform any indicated tests and provide an opinion regarding: (a) whether it is at least as likely as not that any prostate cancer is etiologically related to his active service, including any established exposure to sprayed chemicals other than herbicides while stationed in Korea in 1981 and 1982. Please provide the basis for any opinion and a complete medical rationale for any opinion. The examiner MUST consider the literature cited in the Veteran's October 2012 statement suggests that it may be associated with his active service. See Fred A. Wilcox, Scorched Earth: Legacies of Chemical Warfare in Vietnam 1 (2011) ("Nearly forty years after the last spray mission, scientists continue to find high levels of dioxin in the food and water near abandoned military bases . . . ." ); Wayne Dwernychuk et al., Dioxin Reservoirs in Southern Viet Nam: A Legacy of Agent Orange, 47 Chemosphere 117-137 (2002) (finding that between 1996 and 1999 "very high levels of 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD)" were found in samples taken from soil, fish, ducks, and humans near a former military base that had been occupied from 1963 to 1966); see also November 2012 Statement (citing other articles as support). If the examiner finds that an opinion cannot be provided without resorting to speculation, the examiner MUST state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or by the examiner (does not have the knowledge or training). 5. Then, the AOJ should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the case should be 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 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 2014). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).