Citation Nr: 1609097 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 11-09 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from May 1968 to March 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Denver, Colorado, Regional Office (RO) which, in pertinent part, denied service connection for prostate cancer. In December 2015, the Veteran was afforded a hearing before the undersigned Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In evaluating this case, the Board has also reviewed the Virtual VA system to ensure a complete assessment of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The available evidence is insufficient to grant service connection for prostate cancer and further development is necessary to satisfy VA's duty to assist, including additional records research and obtaining a VA medical opinion if such research is not sufficient. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159, 3.326. The Veteran contends that his prostate cancer, which was diagnosed and treated in 2008, is due to exposure to herbicides including Agent Orange and toxins such as polychlorinated biphenyls (PCB) while stationed in Okinawa, Japan. Specifically, he claims that he was exposed to PCB when a transformer exploded and he had to clean up a spill in September 1969. See, e.g., November 2008 statement and December 2015 hearing transcript. The Board notes that the Veteran did not serve in Vietnam or Korea, nor has he asserted that he had any travel to those areas. Exposure to herbicides is therefore not presumed based on the circumstances of his service. 38 C.F.R. § 3.307(a)(6). However, the Veteran may still establish service connection with evidence of actual exposure to herbicides during service. The VBA Adjudication Manual, M21-1, provides certain development procedures for claims for herbicide exposure in locations other than the Republic of Vietnam, the Korean Demilitarized Zone, and Thailand. See M21-1.IV.ii.1.H.7.a. The M21-1 provides that after the Veteran provides the approximate dates, location(s), and nature of the alleged exposure to herbicides, the information must be furnished to Compensation Service, and a review of DOD's inventory of herbicide operations must be requested to determine whether herbicides were used as claimed. If Compensation Service does not confirm that herbicides were used as claimed, the information provided by the Veteran must be submitted to the Joint Service Records and Research Center (JSRRC). There is no indication that the RO attempted to verify the Veteran's alleged herbicide exposure in Okinawa with either Compensation Service or JSRRC. Accordingly, the Veteran's claim must be remanded and developed consistent with M21-1 procedures. The Veteran has submitted a number of testimonials from fellow service members attesting not only to his presence in Okinawa during his periods of active duty in 1969, but also to the fact that the Veteran cleaned a substance stated to contain PCB's. The Board finds that the Veteran's assertion of PCB exposure during service is credible. The Veteran submitted a December 2009 record from Dr. D. R., indicating that the Veteran had prostate cancer and exposure to PCBs. He further noted that there have been studies tying PCB exposure to the development prostate cancer. However, this opinion is vague and does not relate the Veteran's prostate cancer to his in-service exposure to PCB. At the December 2015 hearing, the Veteran submitted statements from two of his treating physicians noting that PCB are known to be carcinogenic but do not specify conditions due to such exposure. Additionally, in December 2015, the Veteran submitted a nexus statement signed by one of his treating physicians, Dr. M. C., noting that the Veteran's prostate cancer is most likely caused by or a result of PCB exposure in 1969 in service. While the physician indicated that there is a correlation between PCB and lymphoma, the opinion and rationale are inadequate because they lack rationale as to why the Veteran's prostate cancer is related to any PCB exposure. In light of the above, there is an indication that the Veteran's prostate cancer may be related to the reported incidents of chemical exposure in service, and the medical evidence is not sufficient to adjudicate the claim in this regard. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Therefore, a VA medical opinion should be obtained to determine the likely etiology of his prostate cancer. Id. Accordingly, the case is REMANDED for the following actions: 1. Develop the Veteran's claim regarding herbicide exposure consistent with the procedures outlined in M21-1.IV.ii.1.H.7.a. All requests and responses received should be associated with the record. If such verification is not possible, it should be so certified for the record, along with a description of the extent of the verification conducted. 2. If exposure to herbicides is not confirmed, then schedule the Veteran for a VA examination to determine the nature and etiology of his prostate cancer. The examiner should review the entire record, conduct all necessary tests and studies, and respond to the following: Is it at least as likely as not (probability of 50 percent or more) that the Veteran's prostate cancer was incurred as a result of active service, to include his asserted exposure to chemicals and toxins besides Agent Orange, while stationed in Okinawa, Japan? For purposes of the opinion, the examiner should accept as true the Veteran's reported history of exposure to PCB in service. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 3. Then, readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. J. ALIBRANDO 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).