Citation Nr: 20032314 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 17-34 736 DATE: May 7, 2020 REMAND Entitlement to service connection for prostate cancer, to include as due to herbicide and chemical exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1964 to March 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A Board hearing was conducted via videoconference with the RO in San Diego, California. A transcript of this hearing is contained within the electronic claims file. See December 17, 2019, Hearing Transcript (Tr.). The Veteran claims that, while stationed at Kadena Air Base in Okinawa, Japan, he was exposed to Agent Orange, which caused his prostate cancer. See June 29, 2017, VA Form 9; April 5, 2017, Notice of Disagreement (NOD); see generally Tr. In September 2016, an email correspondence between VA officials was uploaded to the claims file. In pertinent part, the email states the following: Regarding your Veteran claimant, DoD has not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations in Okinawa during those years and so there was no need for Agent Orange use there. Additionally, Okinawa was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships. Therefore, Compensation Service can provide no evidence to support the claim. (Emphasis omitted). The Veteran’s DD-214 reflects that he served as part of the 267th Chemical Platoon, and his military personnel records (MPRs) verify that he served at Kadena Air Base. In April 2017, the Veteran submitted a printout regarding the 267th Chemical Company. An additional article titled “Were US Marines Used as Guinea Pigs on Okinawa?” also was included. The latter details that the Department of Defense (DOD) conducted an operation known as Project 112 at Okinawa, whereby servicemembers were exposed to substances including “sarin and VX nerve gases between 1962 and 1974.” “Between December 1962 and August 1965, the 267th platoon received three classified shipments—codenamed YBA, YBB, and YBF—believed to include sarin and mustard gas.” In June 2017, a VA Memorandum noted that the information provided by the Veteran regarding “Herbicide (Agent Orange)” exposure was insufficient to send to the Joint Services Record Research Center (JSRRC). There is no mention of any research attempts made to verify any other chemicals that were used at Kadena Air Base. The information submitted by the Veteran could support a finding that he was exposed to chemical agents, but the Board requires that VA verify that such chemicals actually were present at Kadena and that the Veteran was exposed to them. A lack of such information would frustrate procurement of any future, necessary medical opinion. Thus, remand is required for VA to conduct additional research as to the exact type of chemicals used during Project 112 in Okinawa, Japan. See 38 C.F.R. § 20.904(a). In January 2020, the Veteran submitted a letter from his private treating physician, Dr. L.M., who opined that the Veteran’s prostate cancer is related to his service in the 267th Chemical Company during the Vietnam war. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (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 diseases manifesting during an applicable presumption 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); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). As it stands, VA’s duty to obtain a medical opinion has not yet been triggered. While the Board acknowledges the Veteran had prostate cancer and continues to undergo treatment, it is unable to verify (1) whether any chemicals were stored at Kadena Air Base, (2) which chemicals were stored there, and (3) whether the Veteran was exposed to any such chemicals. If such information can be verified, then VA’s duty to obtain an opinion will be triggered, as Dr. L.M.’s medical opinion is too broad and conclusory on which to base an award of service connection. Therefore, should the above-mentioned development prove the Veteran was exposed to chemicals at Kadena, then VA also should obtain a medical opinion addressing whether his prostate cancer is related to such exposure. See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81; 38 C.F.R. §§ 3.159(c)(4), 20.904(a). The matter is REMANDED for the following action: 1. Contact the JSRRC, or other appropriate entity, to verify any chemicals shipped to, stored, or handled at Kadena Air Base in Okinawa, Japan, as a part of Project 112. Furthermore, efforts should be made to confirm whether there were any documented chemical spills at Kadena Air Base during the time of the Veteran’s service and, to the extent feasible, whether the Veteran was exposed to such chemicals. All efforts to obtain this information, and any information obtained, must be uploaded to the claims file. 2. If, and only if, the above-required development corroborates that the Veteran was exposed to chemicals at Kadena Air Base, then obtain a medical opinion. The opinion shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s prostate cancer occurred in, or is the result of, his period of active duty service, to include exposure to any chemicals listed as part of Project 112 at Kadena Air Base in Okinawa, Japan? The opinion must consider Dr. L.M.’s January 2020 opinion. Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. If the claim remains denied, then issue to the Veteran a Supplemental Statement of the Case. After allowing an appropriate amount of time for response from the Veteran, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.