Citation Nr: 1607296 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 14-24 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II (DMII), to include as secondary to chemical and/or herbicide exposure in Puerto Rico. 2. Entitlement to service connection for prostate cancer, to include as secondary to chemical and/or herbicide exposure in Puerto Rico. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to DM II. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to DM II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Yvette Hawkins, Counsel INTRODUCTION The Veteran served on active duty with the U.S. Navy from April 1969 to January 1973, including service with the Naval Security Group (NAVSECGRU/NSGA), in Sabana Seca, Toa Baja, Puerto Rico. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This appeal was processed using the Virtual VA and Veterans Benefits Management (VBMS) paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he developed DM II and prostate cancer as a result of being stationed with the NSGA facilities at Sabana Seca (the "site") from February 1971 to January 1973. Specifically, he states that, while working as a radio operator in the Naval Communications Station, he was exposed to chemicals and/or herbicides, including Agent Orange, known to have a positive, presumptive association with the development of these diseases. The Veteran has presented evidence showing that the site was divided into North and South tracts, with all waste from the operation's Public Works Department deposited in various locations on the South tract, and the communications station (still in operation today) located on the North tract. This evidence further shows that the site was subsequently added to the Environmental Protection Agency (EPA) Superfund program as a result of soil and groundwater contamination; in 1998, after cleanup, it was removed from the program. The pesticides and herbicides previously used or stored at the site are detailed in a March 2011 letter to the Veteran from the EPA, and include 2,4-D (Dichlorophenoxyacetic acid) and Esteron, a mixture of 2,4-D and 2,4,5-T (Trichlorophenoxyacetic acid), the two ingredients contained in Agent Orange. In March 2006, the Veteran was afforded a VA examination to obtain an opinion on whether any of these substances were at least as likely as not to have resulted in his DM II and prostate cancer. In a June 2011 addendum, the examiner provided an incongruous rationale for her opinion that there is no causal relationship between the chemicals/herbicides found at Sabana Seca and DM II (i.e., stating that Agent Orange consisted of a 50/50 mixture of 2,4-D and 2,4,5-T, containing Dioxin - thought to be the most toxic component of Agent Orange ) because there is no evidence that the substances he was presumably exposed to in Puerto Rico (including Esteron, a mixture of the same two chemicals found in Agent Orange) contained Dioxin. The examiner then opined that the only herbicide exposure presumptively linked to prostate cancer is Agent Orange (containing Dioxin), but again found "no certain evidence that the [V]eteran's prostate cancer is linked to any of the chemicals" used at Sabana Seca. As such, a remand for clarification is needed. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify any non-VA health care providers that have treated him for any of his claimed service connection disorders since September 2011. If the AOJ is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) NOTIFY THE VETERAN THAT HE IS ULTIMATELY RESPONSIBLE FOR PROVIDING THE EVIDENCE. 38 U.S.C.A. § 5103A(b)(2) (West 2014); 38 C.F.R. § 3.159(e)(1) (2015). After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the VBMS/Virtual VA e-folder. 2. Obtain and associate with the VBMS/Virtual VA e-folder all treatment records from the Detroit VAMC AND any other VA/VAMC treatment records since February 2010. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. The Veteran is hereby notified that he may submit any further substantiating data regarding his claims. 3. After all treatment records have been associated with the e-folder, provide the e-folder to an ONCOLOGIST for an opinion as to whether any DM II or prostate cancer diagnosed during the appeal period is the result of active duty service, to include as a presumptive result of herbicide exposure in Puerto Rico. The examiner must note that the complete e-folder, including the Veteran's personal statements, have been considered in his/her opinion. THE EXAMINER SHOULD NOTE THAT, ALTHOUGH THE VETERAN DID NOT SERVE WITHIN THE REPUBLIC OF VIETNAM DURING THE VIETNAM ERA, HE SERVED ON ACTIVE DUTY FROM FEBRUARY 1971 TO JANUARY 1973 WITH THE NAVAL SECURITY GROUP IN SABANA SECA, TOA BAJA, PUERTO RICO, WHICH WAS LATER ADDED TO THE EPA SUPERFUND LIST OF HAZARDOUS SITES. IN A LETTER DATED MARCH 15, 2011, EPA CONFIRMED THAT THE PESTICIDES AND HERBICIDES PREVIOUSLY USED OR STORED AT SABANA SECA INCLUDED: DDT; LINDANE; CHLORDANE; PARIS GREEN; 2,4-D; MALATHION; DIAZINON; SEVIN; PRAMITOL; AND ESTERON (A MIXTURE OF 2,4-D AND 2,4,5-T, THE TWO INGREDIENTS USED TO MAKE AGENT ORANGE). The examiner is asked to review and respond to the following: (a) The examiner must review the VA report, "Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012," 79 Fed. Reg. 20,308, 20,309 - 20,311 (August 10, 2012) ("Update 2012"), discussing the relationship between both DM II and prostate cancer and herbicide exposure. (b) The examiner must review the Department of Defense report, "The History of the US Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides," at http://www.agentorangerecord.com/images/uploads/resources/studies/DODtesting.pdf (several pages of which were submitted by the Veteran), which discusses the development of tactical herbicides, tactical versus commercial herbicides and tactical herbicide sites outside of the U.S., including in Puerto Rico. The examiner must specifically read and consider the third paragraph on page 8, which states as follows: Recognizing the continuing mission in Vietnam for tactical herbicides, the Plant Sciences Laboratories maintained an active program of testing and evaluating chemicals for potential use in Vietnam. Three major "Defoliation Conferences" (1963, 1964, and 1965) were sponsored by Fort Detrick. Plant Sciences Laboratory personnel [with the active participation of the Air Force and Navy; see page 7] simultaneously conducted field tests in Puerto Rico, .... These field tests resulted in the selection of a liquid formulation of cacodylic acid (Herbicide Blue), a picloram-2,4-D formulation (Herbicide White), and a 50:50 mixture of an n-butyl formulation of 2,4-D and 2,4,5-T (Herbicide Orange) .... (c) The examiner must review the March 2011 VA examination report and the June 2011 addendum, in which the examiner discussed the chemicals/herbicides used at Sebana Seca and concluded that there was no relationship to these substances and Veteran's DM II or prostate cancer. (d) The examiner must consider the August 2011 letter, from the Veteran's private radiation oncologist, J.F., who opined that it is at least as likely as not that the Veteran's PROSTATE CANCER was a result of herbicide exposure while stationed in Sabana Seca. (e) Taking into account all of documents listed above, is any current diagnosis of DM II, prostate cancer, bilateral lower extremity peripheral neuropathy, or erectile dysfunction related to, or otherwise a result of active duty service in Sebana Seca, Puerto Rico, TO INCLUDE HERBICIDE EXPOSURE. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal is not granted, the appellant and his attorney should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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 2014). _________________________________________________ Vito A. Clementi 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) (2015).