Citation Nr: 21003298 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-31 597 DATE: January 21, 2021 REMANDED Entitlement to service connection for pancreatic cancer, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1967 to July 1969 with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Acting Veterans’ Law Judge at an October 2020 Board virtual hearing. A transcript of the hearing has been associated with the claims file. Entitlement to service connection for pancreatic cancer, to include as due to herbicide exposure The Veteran contends that service connection is warranted for pancreatic cancer. The Board finds that a remand is warranted for additional development. At his October 2020 hearing and in associated statements, the Veteran has identified potentially relevant outstanding private treatment records. The Veteran reports that in 1991/1992 he underwent the removal of a tumor in his right inner ear, at Presbyterian Hospital, which he believes may be related to his current pancreatic cancer. A remand is required to allow VA to obtain authorization and request these records. Next, the Board cannot make a fully informed decision on the issue of entitlement to service connection for pancreatic cancer because no VA examiner has opined as to direct service connection, and whether the Veteran’s pancreatic cancer is related to herbicide exposure. The Veteran contends that his pancreatic cancer is related to his herbicide exposure while serving in the Republic of Vietnam. Service connection based on exposure to designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. Pancreatic cancer is not currently a disease associated with herbicide exposure for purposes of the presumption. 38 U.S.C.§ 1116 (a)(2); 38 C.F.R. § 3.309. Nevertheless, even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As such a remand is warranted for a VA examination. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment records to include Presbyterian Hospital. Make two requests for any identified and authorized for release treatment records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for his pancreatic cancer. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s pancreatic cancer is caused by an in-service injury or disease, to include as due to herbicide exposure? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s pancreatic cancer (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The Veteran served in the Republic of Vietnam during the applicable time period and exposure to herbicides is presumed. Attention is invited to the Veteran’s lay statements and October 2020 testimony noting that his pancreatic cancer is related to his herbicide exposure while serving in Vietnam. In addition, the Veteran reports that in 1991/1992 he had a tumor removed from his right inner ear which he believes may be related to his pancreatic cancer and herbicide exposure. A. J. Spector Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.