Citation Nr: 1632233 Decision Date: 08/12/16 Archive Date: 08/23/16 DOCKET NO. 10-32 014A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of prostate cancer. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1968 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from an October 2009 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO) that denied reopening a claim of service connection for prostate cancer. In April 2015, the Board issued a decision [by a Veterans Law Judge other than the undersigned] that reopened the claim of service connection for prostate cancer (based on the submission of new and material evidence) and then denied on the merits service connection for postoperative prostate cancer. The Veteran appealed to the Court the portion of the decision denying service connection for residuals of prostate cancer on the merits. In March 2016, the Court issued an Order that vacated the April 2015 Board decision with regard to the issue of service connection for residuals of prostate cancer, and remanded the matter for readjudication consistent with the instructions outlined in a March 2016 Joint Motion for Partial Remand (Joint Motion) by the parties. [The portion of the April 2015 Board decision which reopened the claim of service connection for prostate cancer was not appealed by the Veteran or disturbed by the Court, and therefore is not before the Board.] The case is now assigned to the undersigned. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has been raised by the record (in a December 2007 written statement), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is once again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20 (2015)). The appeal is REMANDED to the AOJ. VA will notify the Veteran if action on his part is required. REMAND On review of the record, the Board has found that further development is needed for VA to fulfill its duties mandated under the Veterans Claims Assistance Act of 2000 (VCAA). The Veteran contends that he developed prostate cancer as a result of being exposed to herbicides in service while stationed at Eglin Air Force Base (AFB) in Florida from 1969 to 1972. He alleges that he was exposed to herbicides in the course of his duties as the Production Specialist and Budget Officer for the Armament Development and Test Center (ADTC), specifically when leading tours of the entire base by U.S. and foreign officers, as he argues that Agent Orange was being tested and used to control vegetation all around the base (to include on the bombing range and within base housing). He further alleges that while serving as a supply officer for his office, he saw orange barrels in Supply and was told that they contained Agent Orange. The Veteran's DD Form 214 documents that his last duty assignment in the Air Force was at the ADTC, and he has submitted multiple notes of commendation from Air Force personnel praising him for his outstanding contributions, to include his support of Allied officers who toured Eglin AFB in May 1971. A Department of Defense report in the record reflects that herbicides (including Agent Orange) were tested and stored at Eglin AFB from 1962 to 1970. The project description for that particular time period noted as follows: "CPT John Hunter discussed vegetation changes and ecological studies of the 2 square mile test area which had been sprayed with herbicides over the period 1962-70." The Veteran's service treatment records (STRs) do not note any complaints, findings, diagnosis, or treatment of prostate cancer. However, his STRS do document the following genitourinary findings. On internal medicine examination in October 1968, it was noted that his prostate was 1+ enlarged and nontender. In July 1971, he reported a return of dysuria, and later that month he reported that he continued to have urethral discharge. In September 1971, he reported a nearly continual penile drip with blood, with occasional pain and intermittent dysuria. In November 1971, he reported having urethral discharge for six months, and occasionally less discharge with more frequent intercourse. On January 1972 service separation examination, his genitourinary system was evaluated as normal. In February 1972, he reported having urethral discharge for about six months (slightly less with more frequent intercourse), and an examination revealed that his prostate was small, firm, and slightly tender with deep pressure. Postservice private treatment records document that the Veteran had prostate cancer diagnosed (by biopsy) in April 2002 and underwent a radical retropubic prostatectomy in May 2002. As outlined in the March 2016 Joint Motion, the Board's April 2015 decision did not adequately evaluate the Veteran's lay statements with regard to his alleged exposure to herbicides during the course of performing his military duties while stationed at Eglin AFB at a time when herbicides were tested and stored there. On remand, the Veteran's entire service personnel file should be secured so that the Board can review the complete records of his military duties during the time when he was stationed at Eglin AFB from 1969 to 1972. Additionally, in light of the genitourinary findings noted in the Veteran's STRs (outlined in detail above), an examination to secure a medical opinion regarding any possible etiological relationship between the genitourinary findings in service and the Veteran's postoperative prostate cancer is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record the Veteran's complete service personnel file, including all documents showing his military duties during the time he was stationed at Eglin AFB from 1969 to 1972. Thereafter, and following any further development indicated, the AOJ should make a formal finding for the record regarding whether or not the Veteran was indeed exposed to herbicides/Agent Orange in the manner alleged. If the finding is positive, the claim should be readjudicated under the presumptive provisions in 38 U.S.C.A. § 1116. 2. If service connection for the prostate cancer is not granted based on a presumptive basis (as due to exposure to herbicides), the AOJ should arrange for the Veteran to be examined by an appropriate physician (an oncologist or urologist) to ascertain the likely etiology of his prostate cancer. The Veteran's record (to include the AOJ's formal finding regarding the Veteran's exposure to herbicides in service) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: Please identify the most likely etiology for the Veteran's prostate cancer. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated during the Veteran's active service? The examiner should specifically consider and address the genitourinary findings noted in the Veteran's STRs (outlined in detail above). The examiner must include rationale with all opinions, citing to relevant evidence, supporting factual data, and medical literature, as appropriate. 3. The AOJ should then review the record, ensure that all development sought is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claim of service connection for residuals of prostate cancer. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran 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 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 2014). _________________________________________________ GEORGE R. SENYK 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).