Citation Nr: A20008554 Decision Date: 05/14/20 Archive Date: 05/14/20 DOCKET NO. 191103-41450 DATE: May 14, 2020 REMANDED Entitlement to service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1972 to October 1979, from July 1982 to September 1982, and from January 1984 to May 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office. In a November 2019 VA Form 10182, the Veteran requested direct review of the October 2019 rating decision by the Board under the Appeals Modernization Act (AMA), which addressed the issue of entitlement to service connection for prostate cancer. Under direct review, a Board decision is based on the evidence at the time of the prior decision. The Board cannot hold a hearing or accept additional evidence into the record in its direct review. 38 C.F.R. § 20.301. Accordingly, the Board may consider the evidence of record as of October 9, 2019, the date of the prior decision. 1. Entitlement to service connection for prostate cancer is remanded. The Veteran has been diagnosed and treated for prostate cancer. He has asserted multiple causes for his prostate cancer, including: 1) being exposed to herbicides through contact with other members of his unit that had been in Vietnam and then reassigned to his unit before being returned to the United States, 2) being exposed to open burn pits in Germany during training and in Honduras in 1985 in support of Operation Joint Task Force-Bravo, where he burned human waste in open-air 55 gallon drums mixed with diesel fuel, used open-air burn pits extensively to burn trash, tires, and other hazardous material, and inhaled the fumes from the burn pits, 3) being exposed to nuclear radiation while assigned to guard nuclear materials in Germany, and 4) being exposed to EMF radiation from communication equipment while performing his duties in communications-electronics. See Veteran’s Correspondence. However, the RO did not develop these theories and the Veteran was not afforded an etiology opinion. Thus, the claim must be remanded for further development. The matters are REMANDED for the following action: 1. Take all appropriate steps to develop the Veteran’s theories of causation for his prostate cancer. See Veteran’s Correspondence. All attempts to obtain these records must be documented. 2. After Step 1 is completed, obtain an etiology opinion to determine the nature and etiology of the Veteran’s prostate cancer. Whether the Veteran should undergo a new examination for the opinion is up to the discretion of the examiner. If the examiner requires an examination, in light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder, the examiner is specifically instructed to answer the following: Is it at least as likely as not (50 percent or greater probability) that the prostate cancer had its onset during, or is otherwise related to his active duty service? The examiner must explicitly address and consider the Veteran’s contentions that he was exposed to: 1) herbicides through contact with other members of his unit that had been in Vietnam and then reassigned to his unit before being returned to the United States, 2) open burn pits in Germany during training and in Honduras in 1985 in support of Operation Joint Task Force-Bravo, where he burned human waste in open-air 55 gallon drums mixed with diesel fuel, used open-air burn pits extensively to burn trash, tires, and other hazardous material, and inhaled the fumes from the burn pits, 3) nuclear radiation while assigned to guard nuclear materials in Germany, and 4) EMF radiation from communication equipment while performing his duties in communications-electronics. See Veteran’s Correspondence. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed 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, 301 (2008). If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) The Board notes that the examiner may have a further obligation to research the medical literature. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.J. Cho, 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.