Citation Nr: 1807630 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-09 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, ionizing radiation, mustard gas, chemicals, and/or asbestos, on the basis of substitution. 2. Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicide agents, ionizing radiation, mustard gas, chemicals, and/or asbestos, on the basis of substitution. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from September 1966 to January 1970. The Veteran died in March 2014, and the appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in March 2010 and November 2010 from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that in June 2014, the appellant filed a request to continue as a substitute claimant in the Veteran's appeal. In an August 2014 letter, the RO recognized the appellant as a valid substitute in place of the Veteran for the issues on appeal. Accordingly, the appellant has been substituted as the claimant, and the issues on appeal have been recharacterized on the title page to reflect substitution. In December 2013, the Veteran testified at a Decision Review Office (DRO) hearing at the RO. A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. A Board videoconference hearing concerning the issues on appeal was scheduled to be conducted on August 25, 2017. However, the appellant cancelled the hearing in an August 15, 2017 statement. She has not requested for the hearing to be rescheduled. Thus, there are no outstanding Board hearing requests. The record shows that at the time of the Veteran's death, he had pending service connection claims for bilateral hearing loss, tinnitus, and posttraumatic stress disorder (PTSD). Due to the substitution of the appellant for the Veteran, the issues are now characterized as entitlement to service connection for bilateral hearing loss on the basis of substitution, entitlement to service connection for tinnitus on the basis of substitution, and entitlement to service connection for PTSD on the basis of substitution. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand is required regarding the service connection claims for prostate cancer and Parkinson's disease in order to conduct additional evidentiary development. The Veteran contended that both disorders were related to his in-service exposure to herbicide agents. As prostate cancer and Parkinson's disease are considered to be diseases associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e), service connection may be granted on a presumptive basis if the Veteran's exposure to herbicide agents is established. See 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). Although the Veteran reported that he did not go ashore to Vietnam, he stated that he was nevertheless exposed to herbicide agents during his service on the USS Kitty Hawk (CVA-63) from October 1968 to August 1969. See March 2010 Statement in Support of Claim; March 2011 Notice of Disagreement. He also reported that his exposure to herbicide agents occurred in May 1967 during a two week temporary duty assignment to the U.S. Army Depot in Fort McClellan in Anniston, Alabama; and in August 1967 during a two week temporary duty assignment at Eglin Air Force Base in Florida. The record reflects that the RO conducted development related to the Veteran's reported exposure to herbicide agents while aboard the USS Kitty Hawk. However, regarding his reported exposure in the United States, the RO did not follow the steps provided by the M21-1 for verifying herbicide exposure on a factual basis when the Veteran reports exposure in locations other than the Republic of Vietnam, the Korean DMZ, or Thailand. The M21-1 states that if the Veteran fails to provide the necessary information to verify his herbicide exposure, the case should be referred to the RO JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. See M21-1, IV.ii.1.H.7.a. However, no formal finding was made. As such, the relevant development specified by the M21-1 should be completed upon remand. Regarding the Veteran's reported assignment at Eglin Air Force Base in August 1967, the Board notes that the Veteran's military personnel records state that from June 9, 1967 to December 9, 1967, he was stationed at the Naval School of the Explosive Ordnance Disposal Naval Ordnance Station in Indian Head, Maryland. However, the records also indicated that he completed a temporary duty assignment within this period from March 24, 1967 to May 19, 1967 at the US Naval School for Underwater Swimmers at the US Naval Base in Key West, Florida. The available records do not contain similar documentation of an August 1967 assignment at Eglin Air Force Base. In light of this Veteran's contentions regarding exposure to herbicide agents at Eglin Air Force Base, efforts to verify this duty assignment should be undertaken while the matter is on remand. In addition, the Veteran stated in his March 2011 notice of disagreement that during the three assignments when he received exposure to herbicide agents, he was also exposed to "Chemicals of Concern." The record shows that the RO obtained VA medical opinions concerning this contention. In December 2013, a VA examiner stated that an opinion could not be provided without pure conjecture, but the examiner did not provide a rationale. In January 2015, another examiner gave a negative opinion for both claims, stating that there was no specific mention of a chemical or biological explosive ordinance disposal event in the Veteran's service records. The examiner added that there was no documentation confirming a link between these disorders and the Veteran's service due to the lack of documentation during service. The Veteran's personnel records show that during his temporary assignment at Fort McClellan, he was undergoing explosive ordnance disposal training that included functional training in nuclear, biological, and chemical warfare defense. During the December 2013 DRO Hearing, the Veteran also testified that one of the chemicals he was exposed to during this training was mustard gas. See December 2013 Board Hearing Transcript (Tr.), page 4. In addition, he served on the U.S.S. Kitty Hawk as Explosive Ordnance Disposal Officer. Despite the evidence suggesting that he received exposure to chemicals during service, the RO did not attempt to obtain additional information regarding the types of chemicals he encountered during his explosive ordnance disposal training and in the course of his duties as an Explosive Ordnance Disposal Officer. As the negative opinion from January 2015 relied on the lack of specific information regarding his in-service chemical exposure, the AOJ should make efforts to obtain this information upon remand. In regards to the Veteran's contention that he was exposed to ionizing radiation during service, the Board notes that the Veteran and appellant have not contended, and the record does not show, that he participated in atmospheric nuclear weapons testing or received exposure from the American occupation of Hiroshima or Nagasaki, Japan prior to July 1, 1946. See Radiation Risk Activity Information Sheet received in March 2010. However, the claims file does contain a July 1967 DD Form 1141, Report of Occupational Exposure to Ionizing Radiation. The DD Form 1141 indicates that the Veteran had accumulated total doses of 00.002 for gamma and x-ray exposure in service. The Board notes that Parkinson's disease is not considered a radiogenic disease as defined by 38 C.F.R. § 3.311(b)(2), and neither the Veteran nor the appellant has submitted competent scientific or medical evidence that it is a radiogenic disease. However, prostate cancer is one of the listed radiogenic diseases. Thus, under 38 C.F.R. § 3.311(a)(2), a dose estimate should be requested from the Under Secretary for Health. If, after obtaining a dose estimate, the requirements of 38 C.F.R. § 3.311(b)(1) are met for either claim, the claim(s) should be forwarded to the Under Secretary for Benefits for an opinion. The record also shows that the Veteran reported in-service exposure to asbestos in his December 2009 claim. The Veteran's DD 214 lists his military occupational specialty (MOS) as EOD (explosive ordnance disposal). However, his military personnel records indicated that his duties in this position entailed instructing others in firefighting involving ordnance on a ship. According to the VA Adjudication Procedure Manual, M21-1, IV.ii.1.I.3.d., firemen had a high probability of exposure to asbestos. Although the RO addressed this theory of entitlement in the January 2014 statement of the case, the VA medical opinions from December 2013 and January 2015 did not discuss it. Consequently, the medical opinion obtained on remand should consider this theory. Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate resources, to include the JSRRC, to verify the Veteran's reported temporary duty assignment at Eglin Air Force Base in Florida in August 1967. Document for the claims file what repositories were contacted and why. If necessary, the appellant should be requested to provide any assistance in obtaining this clarifying information. If any entity refers the AOJ to a more appropriate facility from which to obtain the above-noted information, the AOJ should contact such facility. All requests and responses received should be associated with the claims file. 2. Comply with the evidentiary development as directed in M21-1, IV.ii.1.H.7.a. Specifically, the AOJ must furnish to the VA Compensation Service the pertinent data of the Veteran's reported exposure to herbicide agents in the United States, to include in May 1967 during a two week temporary duty assignment to the U.S. Army Depot in Fort McClellan in Anniston, Alabama; and in August 1967 during a two week temporary duty assignment at Eglin Air Force Base in Florida. In addition, the AOJ must request a review of the DoD's inventory of herbicide operations to determine whether herbicides were used as claimed. If the Veteran and/or appellant have not furnished sufficient information to permit a search by the JSRRC, the case should be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. 3. Contact all appropriate sources, to include the Department of the Army, the Department of the Navy, and the JSRRC, to attempt to independently verify the likelihood of the Veteran's exposure to mustard gas and/or other harmful chemicals during active service. The RO should request information regarding what types of chemicals were used in during the following duty assignments: (1) at the US Army Chemical School in Fort McClellan in Alabama while the Veteran was a student in an explosive ordnance disposal course from May 29, 1967 to June 9, 1967; (2) at the Naval School, Explosive Ordnance Disposal Naval Ordnance Disposal Station in Indian Head, Maryland when the Veteran received training from June 9, 1967 to December 9, 1967; and (3) in the Veteran's role as an Explosive Ordnance Disposal Officer aboard the U.S.S. Kitty Hawk from October 29, 1968 to August 19, 1969. If the Veteran's duty assignment at Eglin Air Force Base in August 1967 is verified, this assignment should be included with the above request. Any additional action necessary for independent verification of the Veteran's exposure to mustard gas and/or other harmful chemicals, to include follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating records leads to negative results, notify the appellant and afford her the opportunity to respond. The AOJ should also follow up on any additional actions suggested by the JSRRC. 4. Forward the Veteran's service records, including his July 1967 DD Form 1141, and any other relevant documents, to the Under Secretary for Health in accordance with the proper procedures for obtaining dose estimates outlined in 38 C.F.R. § 3.311(a)(2); and request a radiation dose estimate for the Veteran. 5. After obtaining a dose estimate, if the requirements of 38 C.F.R. § 3.311(b)(1) are met for the Veteran's service connection claim for prostate cancer and/or his service connection claim for Parkinson's disease, refer the claim(s) to VA's Under Secretary for Benefits for an opinion as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the disorder resulted from the Veteran's exposure to radiation in service. 6. If after completing the preceding development in paragraphs 1 through 4, the Veteran's exposure to herbicide agents has not been established, and no positive opinion has been obtained from VA's Under Secretary for Benefits for the Veteran's service connection claim for prostate cancer; the case should be referred to a VA examiner for a medical opinion to determine the nature and etiology of the disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that Veteran was competent to attest to matters of which he had first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. For the Veteran's diagnosed prostate cancer, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during his active service; manifested within one year of his discharge from active service; or was otherwise related to his active service, to include his exposure to chemicals and/or asbestos therein. If the Veteran's claimed exposure to mustard gas is established, the examiner should also opine as to whether it is at least as likely as not that his prostate cancer was related to the established exposure of mustard gas. 7. If after completing the preceding development in paragraphs 1 through 4, the Veteran's exposure to herbicide agents has not been established, and no positive opinion has been obtained from VA's Under Secretary for Benefits for the Veteran's service connection claim for Parkinson's disease; the case should be referred to a VA examiner for a medical opinion to determine the nature and etiology of the disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that Veteran was competent to attest to matters of which he had first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. For the Veteran's diagnosed Parkinson's disease, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during or was otherwise related to his active service, to include his exposure to chemicals and/or asbestos therein. If the Veteran's claimed exposure to mustard gas is established, the examiner should also opine as to whether it is at least as likely as not that his Parkinson's disease was related to the established exposure of mustard gas. 8. Review each examination report to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 9. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, to include obtaining additional VA medical opinions, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the appellant and her representative. After the appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. §§ 5109B, 7112. _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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) (2017).