Citation Nr: 1608382 Decision Date: 03/02/16 Archive Date: 03/09/16 DOCKET NO. 14-11 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for right ear hearing loss. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for left ear hearing loss. ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The case is now under the jurisdiction of the San Diego, California RO. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has alleged exposure to herbicides while stationed in Guam from May 1973 to August 1975. The service personnel records show that he was stationed at USNAVCOMMSTA, Guam, MI. He stated that the herbicides were sprayed on the perimeter of the base and that the groundwater was contaminated. In April 2013, the AOJ furnished the Veteran's description of exposure to Compensation Service and requested a review of the Department of Defense's (DoD) inventory of herbicide operations. In a May 2013 response, the Compensation Service noted that the DoD list did not show any use, testing, or storage of tactical herbicides at any location on Guam during the Vietnam Era. It was noted that Agent Orange use in Vietnam and elsewhere was terminated in 1971 and that remaining stores were incinerated at sea. This was two years before the Veteran's service in Guam. The Compensation Service noted that it could not provide evidence to support the claim, but the AOJ was directed that unless the claim was "inherently incredible or clearly lacks merit", it should be referred to Army and Joint Services Records Research Center (JSRRC) for any information that the organization could provide to corroborate the Veteran's claimed exposure. In June 2013, the JSRRC coordinator prepared a memorandum for the record. It was determined that the Veteran did not provide sufficient information to permit a search by the JSRRC. The coordinator noted that there was insufficient information because tactical herbicides were terminated in 1971 and the Veteran entered active duty in January 1973. Thereafter, in the March 2014 VA Form 9, the Veteran identified a report from the United States Environmental Protection Agency (EPA), referred to as the "Superfund", in which it identified high concentrations of dioxin in the soil at many locations in Guam. It was also noted that the water supply was affected by the dioxin concentrations. The Board notes that the Andersen Air Force Base was placed on the EPA's National Priorities List in October 1992 and dioxins were found on the base and the Veteran reported that his naval base was only a few miles away. He also stated that while he may not have been present in Guam during the time period in which the tactical herbicides were sprayed, he stated that he was exposed to the residuals, which were present as noted by the EPA report. As directed by the VA Adjudication Procedures Manual, concerning the development of claims based on herbicide exposure in other locations, if the Compensation Service provides a negative response regarding the Veteran's described use of herbicides and the Veteran provides sufficient information to permit a search by the JSRRC, a request must be made to the JSRRC for verification of exposure to herbicides. VBA Manual, M21-1, IV.ii.1.H.7.a. Based on the evidence above, the Board finds that the Veteran should be provided the opportunity to provide additional details regarding his alleged exposure to herbicides in Guam. In addition, once VA receives any information from the Veteran, a request must be made to the JSRRC to attempt to verify the Veteran's reported exposure to herbicides. Of final note, an April 2015 rating decision denied entitlement to service connection for tinnitus, denied reopening the claim for service connection for left ear hearing loss, and denied reopening the claim for service connection for right ear hearing loss. In August 2015, VA received a notice of disagreement with respect to the April 2015 rating decision. A Statement of the Case has not been issued. See Manlincon v. West, 12 Vet. App. 238 (1999). A Statement of the Case must be issued and the Veteran must be advised that to vest the Board with jurisdiction over the issues, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2015). The Board is required to remand the issues for the issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case with respect to the April 2015 rating decision denial of entitlement to service connection for tinnitus, denial of reopening the claim for service connection for right ear hearing loss and denial of reopening the claim for service connection for left ear hearing loss. Notify the Veteran that to vest the Board with jurisdiction over the issues, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2015). If the Veteran perfects an appeal, return the case to the Board for appellate review. 2. Ask the Veteran for the approximate dates, location(s), and nature of the alleged exposure to herbicides and, specifically, that the Veteran provide such dates of exposure in 60-day increments, if possible. 3. Following the Veteran's response, submit the request to the JSRRC for verification of exposure to herbicides, to include residual concentrations of dioxin in the soil and water supply, as referenced by the "Superfund" report by the EPA of record. The JSRRC's response must be associated with the record. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case to the Veteran. Provide an appropriate amount of time for response. Thereafter, return the case to the Board for review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL 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).