Citation Nr: 21002969 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 190516-6011 DATE: January 19, 2021 REMANDED Service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, is remanded. Service connection for prostate cancer, to include as due to herbicide (Agent Orange) exposure, is remanded. Service connection for skin cancer (claimed as melanoma), to include as due to herbicide (Agent Orange) exposure, is remanded. INTRODUCTION The Veteran served on active duty from June 1963 to June 1966 in the U.S. Army. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2011 and May 2012 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2017 and August 2017, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review. However, on June 28, 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) opt-in election form. See 38 C.F.R. § 3.2400(c)(1) (2019). On this form, he selected the higher-level review (HLR) lane. This action officially withdrew the legacy appeal into the modernized review system. The AOJ followed up by issuing an April 2019 RAMP / HLR rating decision, which continued to deny the service connection issues on appeal. Thereafter, the Veteran timely appealed this rating decision to the Board by filing a May 2019 VA Form 10182 - Decision Review Request: Board Appeal (Notice of Disagreement) – NOD. In this May 2019 NOD, the Veteran selected the Direct Review Lane, or direct review of the same evidence considered by the AOJ. See 38 C.F.R. § 20.301 (2019). Therefore, the present Board decision is based on a review of the evidence of record at the time of the June 28, 2018 RAMP opt-in election form. This form is treated as the last AOJ decision for RAMP purposes, when the evidentiary record officially closes and the period on appeal ends. Cf. 38 C.F.R. §§ 3.103(c)(2); 20.300, 20.301, 20.801(a) (2019). In any event, only legal arguments and statements from the Veteran and his attorney and a friend were received subsequent to June 28, 2018. No relevant clinical evidence of record was submitted or secured after the June 28, 2018 RAMP opt-in election form. Only duplicate or irrelevant clinical evidence to the claims at issue was received after June 28, 2018. In May 2017, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran’s claims file. In an August 2019 Board decision, the Board denied service connection for the three service connection issues on appeal. However, the Veteran appealed the Board’s August 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, the Court partially vacated and remanded the Board’s decision to deny service connection for type II diabetes mellitus, prostate cancer, and skin cancer, pursuant to a June 2020 Joint Motion for Partial Remand (Joint Motion) by the parties. The reasons for the Court’s Order and the specific instructions of the Joint Motion will be discussed in further detail below. Upon return from the Court, in August 2020, the Board sent the Veteran a 90-day notice letter for a Court remand informing him that the case had been received by the Board from the Court. The Veteran was advised he had 90 days to submit additional argument (but no new evidence) before the Board proceeded with readjudication of the appeal. In a November 2020 attorney letter, the Veteran’s attorney submitted additional argument. In any event, this case has now returned to the Board to implement the June 2020 Joint Motion’s instructions. Finally, this appeal has been advanced on the Board’s docket. 38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2019). REASONS FOR REMAND Under the AMA, when the Board identifies a pre-decisional duty to assist error, the Board will remand the appeal back to the AOJ with instructions to correct the error. See 38 C.F.R. §§ 3.159(c), 20.802(a). Following correction of the error, the AOJ must readjudicate the issue or issues. See 38 C.F.R. § 3.2502. After the AOJ readjudicates the issue or issues, a claimant may choose to file a new appeal to the Board from such readjudication or request higher-level review (HLR) or a supplemental claim with the AOJ. 1. Service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, is REMANDED. 2. Service connection for prostate cancer, to include as due to herbicide (Agent Orange) exposure, is REMANDED. 3. Service connection for skin cancer (claimed as melanoma), to include as due to herbicide (Agent Orange) exposure, is REMANDED. Pursuant to the June 2020 Court Order and Joint Motion, the parties agreed that in the previous August 2019 Board decision, the Board erred by failing to ensure that VA satisfied the duty to assist. Specifically, the Board failed to identify and to correct a duty to assist error and also failed to provide an adequate statement of reasons or bases when it did not weigh Veteran’s lay evidence regarding his place of service in Vietnam. See 38 U.S.C. §§ 5103A, 7104(d)(1); Gilbert v. Derwinski,1 Vet. App. 49, 57 (1990). That is, in an earlier August 2017 Board remand, the Board remanded the service connection claims on appeal for the AOJ to verify whether or not the Veteran participated in classified operations as part of a U.S. Army Special Operations Unit working with the Central Intelligence Agency (CIA) in Vietnam from 1964 to 1966, according to the procedures described in VA’s Adjudication Procedures Manual (M-21), now known as “the Live Manual.” The June 2020 Joint Motion pointed out that the AOJ never complied with these Board remand instructions to follow the procedures of the M21-1 to verify whether the Veteran was in Vietnam for classified operations with the CIA, as he has repeatedly alleged. Most importantly, this duty to assist error by the VA was pre-decisional in that it occurred prior to the Veteran filing his June 28, 2018 RAMP opt-in election form, which officially closed the evidentiary record. See 38 C.F.R. §§ 3.103(c)(2); 20.300, 20.301, 20.801(a) (2019). The Veteran has provided detailed information describing the units and the dates of assignment concerning his alleged incursions into Vietnam from 1964 to 1966. See e.g., October 2017 and January 2019 Veteran statements. But neither the AOJ nor the Board completed the development actions per the M21-1 Live Manual, IV.ii.1.I.4 (July 23, 2020), based on the Veteran’s claim of service with the CIA in Vietnam from 1964 to 1966. Stated another way, the AOJ did not “substantially comply” with the Board’s August 2017 remand instructions prior to the Veteran filing his June 28, 2018 RAMP opt-in election form. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This constituted a pre-decisional error under the AMA by the VA because the AOJ never complied with the Board’s August 2017 remand instructions prior to his RAMP opt-in. See 38 C.F.R. §§ 3.159(c), 20.802(a). Since the RAMP opt-in is treated like a decision for purposes of determining the evidentiary record, it follows that the duty to assist applies for the period prior to the date of the June 28, 2018 RAMP opt-in. The non-compliance with the duty to assist clearly occurred prior to the Veteran’s opt-in to RAMP. The Board should have identified and corrected that duty to assist error by way of remand, instead of adjudicating and denying the service connection claims on appeal in the latter August 2019 Board decision. First, the June 2020 Joint Motion instructed the Board to ensure that VA satisfies its duty to assist by attempting to verify the Veteran’s service in classified Special Operations assignments in Vietnam from 1964 to 1966, according to the specific development actions listed in the M21-1 Live Manual, IV.ii.1.I.4.a-b. (July 23, 2020). The Board therefore will remand the appeal for the AOJ to pursue the required M21-1 development to confirm Vietnam service for the Veteran. In remanding on this basis, the Board acknowledges the Federal Circuit and Court’s recent holdings that the M21-1 provisions are not substantive rules and are not binding on the Board. See DAV v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017); Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). Even more recently, the Federal Circuit clarified that the M21-1 is binding on VA’s initial adjudicators (i.e., the AOJ), but not on the Board. National Organization of Veterans’ Advocates, Inc. (NOVA) v. Secretary of Veterans Affairs (VA), __ F.3d __, No. 2020-1321 (Fed. Cir. Dec. 8, 2020). While the Board is “required to discuss any relevant provisions contained in the [Manual] as part of its duty to provide adequate reasons or bases” for its decisions, it is not bound by the Manual. Id. In any event, the Court and both parties have specifically instructed the Board to cite and utilize the provisions of the M21-1 in the present case. Thus, the Board will follow these instructions. Second, if and only if the Veteran’s alleged service in Vietnam from 1964 to 1966 is confirmed per the above development, the AOJ should schedule the Veteran for a VA examination and opinion to determine if the Veteran’s skin cancer, which is not listed as a presumptive disease for herbicide purposes, is otherwise directly related to the Veteran’s herbicide exposure during any military service in Vietnam. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Court has held that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other non-presumptive conditions based on exposure to Agent Orange. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). A medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection (i.e., is not listed in 38 C.F.R. § 3.309) is inadequate. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). A clinician cannot conclude that a disability cannot be associated with herbicide exposure simply because it is not on the list of presumptive service-connected diseases. These issues are REMANDED for the following action: 1. In accordance with the M21-1 Live Manual, the AOJ must attempt to verify whether or not the Veteran served in classified Special Operations assignments in Vietnam from 1964 to 1964, according to the specific development actions listed in the M21-1 Live Manual, IV.ii.1.I.4.a-b. (July 23, 2020). Please note the Veteran has already adequately responded to VA requests for information from him on details of his alleged Special Operations service in Vietnam. See e.g., October 2017 and January 2019 Veteran statements. And his service personnel record (SPRs) confirm that he was assigned to the U.S. Army Element Joint Support Group (SD-7709-OR) from 1964 to 1966. See e.g., March 11, 1966 U.S. Army Research and Plans Unit letter; June 17, 1966 U.S. Army Element Joint Support Group Letter of Commendation. Therefore, pursuant to the steps listed in the table of the M21-1 Live Manual, IV.ii.1.I.4.b. (Developing Claims Related to Special Operations Incidents), the AOJ should proceed to steps 3 to 6 of this table. Specifically, route the claim to the Military Records Specialist (MRS) and provide the MRS with the details listed by the Veteran (in his October 2017 and January 2019 Veteran statements) of his alleged Special Operations classified service in Vietnam for various periods of time from May 1964 to April 1966. The AOJ must obtain and document the response in the claims file. ***This instruction is in accordance with a June 2020 Order of the Court and June 2020 Joint Motion of both parties*** 2. After completion of step 1, if and only if the Veteran’s alleged service in Vietnam from 1964 to 1966 is confirmed per the above development, the AOJ should schedule the Veteran for a VA examination for his skin cancer. The examiner must review the claims file. The VA examiner must provide a rationale to support the opinion(s). (Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for the Veteran’s skin cancer). The VA examiner is asked to provide a response to the following: (a.) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s current skin cancer either began during service or is causally related to any presumed exposure to herbicide agents in Vietnam, to include Agent Orange? • In answering this particular question, the VA examiner is advised that the mere fact that presumptive service connection has not been established by VA for skin cancer is not dispositive of the issue of a nexus to service. A clinician cannot conclude that a disability cannot be associated with herbicide exposure simply because it is not on the list of presumptive service-connected diseases. Rather, the VA examiner must provide a rationale supported by any medical treatise evidence or clinical studies in analyzing whether or not the Veteran’s skin cancer is the direct result of any confirmed in-service herbicide exposure. • In answering this particular question, therefore, consideration can be given to any relationship between skin cancer and herbicide exposure discussed in clinical studies and updates by the National Academy of Science (NAS) or any other relevant clinical studies. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.