Citation Nr: 18148446 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-06 795 DATE: November 7, 2018 REMANDED The issue regarding whether it was proper to sever service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran had several periods of active service between April 1969 and September 1990. The record indicates that he retired from the Idaho Army National Guard in June 1996 after 27 years of service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In June 2018, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is included in the record and has been reviewed. The issue on appeal is remanded. A remand of the issue on appeal is warranted for additional development. The Veteran’s service personnel records (SPRs) should be included in the claims file. Further, the Veteran should undergo VA compensation examination into his claim that he was exposed to herbicides in the United States while handling equipment and gear that had been in the Republic of Vietnam. In June 2012, the Veteran filed an original claim of entitlement to service connection for prostate cancer. He asserted that he incurred the disorder after having spent one day in the Republic of Vietnam. In July 2012, the RO granted service connection for prostate cancer on a presumptive basis under 38 C.F.R. § 3.309(e) based on herbicide exposure in Vietnam. In January 2013, the RO proposed severing the award, stating that a clear and unmistakable error (CUE) had been committed in the July 2012 grant. The RO indicated that its previous finding that the Veteran had served in Vietnam had been erroneous. In the March 2014 rating decision on appeal, the RO effected the proposed severance from July 1, 2014. In appealing the decision, the Veteran has reiterated that he spent one day in Vietnam during the Vietnam Era, and was thereby exposed to herbicides causing his prostate cancer. See 38 C.F.R. § 3.309(e) (2018). He has also stated that, while serving in the U.S., he was exposed to herbicides by handling materiel that had been in Vietnam, such as military equipment, gear, and uniforms. It appears that the RO followed proper procedures in severing service connection. In the January 2013 correspondence to the Veteran proposing severance, the RO explained its proposal. The RO noted that the finding underlying the original service connection grant – that records document the Veteran’s presence in Vietnam – had been erroneous. The RO stated that no evidence of record documents in-country service. The January 2013 correspondence noted that VA would provide the Veteran 60 days for the presentation of additional evidence to show that service connection should be maintained. And the correspondence noted that the Veteran would be provided the opportunity to appear before a predetermination hearing to argue his case. 38 C.F.R. § 3.105. Nevertheless, it is not clear at this juncture that the severance is supported by the evidence of record. The question before the Board is not whether the RO clearly and unmistakably erred in granting service connection in 2012. It is whether it is now clear and unmistakable that an award of service connection for prostate cancer is in error. See Stallworth v. Nicholson, 20 Vet. App. 482, 488 (holding that a “severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous”). For two primary reasons, this question cannot be answered based on the evidence now of record. One, the record does not contain the Veteran’s SPRs. It is therefore not possible to confirm that he was not present in Vietnam during the Vietnam Era. Two, a medical professional has not addressed the assertion that exposure in the U.S. to herbicide-contaminated materiel returning from Vietnam led to prostate cancer. Although there is no presumption of service connection under 38 C.F.R. § 3.309(e) for such exposure, the direct service connection theory of entitlement under 38 C.F.R. § 3.303 is still before the Board. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims to the extent possible. Include in the record any outstanding VA treatment records. Include in the record the Veteran’s service personnel records. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for a VA compensation examination to determine the nature and etiology of his prostate cancer. The examiner should review the claims folder, and then respond to the following question. Is it at least as likely as not (i.e., probability of 50 percent or greater) that prostate cancer is related to a disease, event, or injury during service? In answering this question, review and consider the service treatment records (STRs), and the lay assertions to include testimony before the Board in June 2018. Please support any opinion provided with a full explanation. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel