Citation Nr: 20007779 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-13 795 DATE: January 30, 2020 REMANDED Entitlement to service connection for a prostate condition, to include residuals of prostate cancer, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to April 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision (of which the Veteran was notified in August 2014) of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. At the hearing, the Veteran’s representative indicated that additional evidence would be submitted after the hearing; however, no evidence was submitted. 38 U.S.C. § 7105(e) (2012).   Entitlement to service connection for a prostate condition, a right shoulder disability, and a right knee disability are remanded. A. Service Records At the Board hearing, the Veteran testified that not all of his service treatment records (STRs) and service personnel records may have been associated with the claims file. The Veteran explained that he served under a different name than his current name. Additionally, in a correspondence dated December 2012 the Veteran noted that he was drafted under a different name than the name he was born with. Indeed, the Veteran’s DD-214 recorded his middle name as different than his birth certificate. The Veteran’s testimony at the November 2019 hearing, including that he was treated for an enlarged prostate during service, indicates that there may be outstanding STRs. As such, the Board finds that another attempt should be made to retrieve the Veteran’s STRs and service personnel records, under all potential names, to ensure that all such records have been associated with the claims file. B. Private Treatment Records The Veteran states that he has been treated for the claimed disabilities at the following facilities: Anmed Health, Greenville Health System, and Emory Healthcare. Although he has submitted some evidence from these facilities, it does not appear that any efforts have been made to obtain complete records of that treatment. Because such records, if obtained, might contain information bearing on the Veteran’s appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). C. Prostate Condition The Veteran testified at the Board hearing that he has had prostate cancer that was caused by exposure to an herbicide agent. The Veteran elaborated that he may have been exposed to an herbicide agent while he was stationed in Thailand or at the demilitarized zone (DMZ) in Korea. A January 2014 private treatment record reflects that the Veteran had prostate cancer and underwent a retropubic prostatectomy. As to exposure in Thailand, the Veteran’s Benefits Administration Manual M21-1 provides a procedure for verifying exposure to herbicide agents in locations other than the Republic of Vietnam or along the DMZ in Korea. See M21-1.IV.ii.1.H.4.b. That procedure requires: (1) asking the Veteran for the approximate dates, location, and nature of the alleged exposure; (2) furnishing the Veteran’s detailed description of exposure to the Compensation Service for confirmation; and (3) requesting a review of the DoD inventory of herbicide operations to determine whether herbicide agents were used as alleged. If the Compensation Service’s review confirms that herbicide agents were used as alleged, then a determination must be made as to whether service connection is in order. If the Compensation Service’s review does not confirm that herbicide agents were used as alleged, then a request should be sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicide agents. It does not appear that the Agency of Original Jurisdiction (AOJ) developed the Veteran’s allegation of exposure to an herbicide agent outside the Republic of Vietnam pursuant to the M21-1. Regarding exposure at the DMZ, service connection may be granted for specific disabilities associated with exposure to herbicide agents, including prostate cancer, for veterans who served in or near the Korean DMZ during the period beginning on September 1, 1967 to August 31, 1971. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 3, 133 Stat. 966, 970 (eff. Jan. 1, 2020) (to be codified at 38 U.S.C. § 1116B); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). These disabilities will be considered to have been incurred in or aggravated by service despite any lack of evidence of such disease during service. 38 C.F.R. § 3.307(a). The M21-1 provides a procedure for verifying exposure to an herbicide agent for veterans who served in the DMZ during the applicable time period. See M21-1.IV.ii.1.H.3.b. It does not appear that the AOJ developed the Veteran’s allegation of exposure to an herbicide agent while he was at the DMZ. C. Right Shoulder The Veteran has not been afforded a VA examination to determine the nature, extent, and etiology of his right shoulder condition. The following four factors should be considered when determining whether VA is required to provide a VA medical examination or a medical opinion: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in-service, or evidence establishing certain chronic diseases were manifested during an applicable post-service presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and a veteran’s service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A September 2013 Anmed Health note indicates a diagnosis of a right rotator cuff tear and a right shoulder labral tear; thus, there is competent evidence of a current disability. For the purposes of determining whether a VA examination is warranted, the Board finds that the Veteran experienced an in-service injury. The Veteran testified at the Board hearing that he injured his shoulder while playing baseball during service. The Veteran elaborated that he was a pitcher and throwing baseballs resulted in a rotator cuff injury. The Veteran’s DD-214 documents his military occupation specialty as physical activities specialist. According to the DD-214, the civilian equivalent occupation is athlete. Therefore, there is evidence to support that playing baseball would be consistent with the circumstances of the Veteran’s service. Regarding whether there is an indication that the disability or symptoms may be associated with the Veteran’s service, the Veteran testified at the Board hearing that his shoulder pain continued after service. Given the low threshold for the third factor, the Board is satisfied that it has been met. Lastly, there otherwise is insufficient competent medical evidence of record to make a decision on the claim due to the lack of an etiology opinion. Thus, on remand the Veteran should be scheduled for a VA examination. D. Right Knee Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the present case, the Veteran was afforded a VA examination for his right knee in May 2014. The examiner diagnosed the Veteran with right knee degenerative joint disease. The examiner opined that it was less likely than not that the Veteran’s right knee disability was “caused by or a result of his right knee incident 40 or more years ago.” The Board finds this VA examination to be inadequate. The examiner’s opinion is conclusory and lacks any supporting explanation. Additionally, the Veteran has indicated he has experienced continuous pain and swelling since his in-service injury and the examiner failed to account for this lay evidence. As such, the Board finds this VA examination to be inadequate. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from September 2015 to the present. 2. Obtain the Veteran’s complete service personnel records and service treatment records with searches that include the Veteran’s prior full name (including his variously reflected middle names) as shown on the birth certificate submitted in April 2014 and on his DD-214, and his current name. Issue a formal finding indicating all steps take to secure any outstanding service records.   3. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include records from Anmed Health, Greenville Health System, and Emory Healthcare. Based on the response received, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 4. After completing the development in 2), develop the Veteran’s allegation of exposure to an herbicide agent in Thailand and the Korean DMZ pursuant to the M21-1. Issue a formal finding(s) indicating all steps take to verify the Veteran’s assertions of exposure to an herbicide agent. 5. After completing the development in 1) and 3), schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder and right knee disabilities. The examiner must opine whether any right shoulder disability and right knee disability are at least as likely as not related to an in-service injury, event, or disease, including playing baseball (for the right shoulder and right knee), throwing baseballs (for the right shoulder), or the right knee pain and swelling noted on the Veteran’s separation examination (for the right knee). For purposes of providing an opinion, the examiner should consider the Veteran’s statements indicating a continuity of symptomatology of pain in the right shoulder and right knee since service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Patel, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.