Citation Nr: 21064973 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 20-00 062A DATE: October 22, 2021 REMANDED Entitlement to service connection for prostate cancer due to Agent Orange exposure in Korea is remanded. Entitlement to service connection for penile cancer due to Agent Orange exposure in Korea is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from July 1966 to June 1967, with a hardship discharge transfer to the Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran later testified at a virtual hearing before the Board in July 2021, before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for prostate cancer due to Agent Orange exposure in Korea is remanded. 2. Entitlement to service connection for penile cancer due to Agent Orange exposure in Korea is remanded. The Veteran asserts that he was exposed to Agent Orange while stationed in Camp Casey and he was assigned as a guard walking around the perimeter of the demilitarized zone (DMZ) in Korea, and as such, should be granted service connection for his currently diagnosed prostate cancer and penile cancer disabilities. See, June 2017 VA 21-4138 Statement In Support of Claim. See, April 2018, VA 21-4138 Statement In Support of Claim. During the Veteran's testimony at his July 2021 Board hearing the Veteran clarified that he was in the DMZ in Korea twice: first between 1966 and 1967 at Camp Casey, periodically patrolling the DMZ zone, and then again in 1968, during a two-week active duty for training (ACUDTRA) while he was in the Reserve. That in 1968 he provided support as part of 1014 service and supply unit for the units that were already in the DMZ. He also testified that he is currently experiencing frequent urinary tract infections (UTIs) and that he undergoes prostate-specific antigen (PSA) testing every six months. The Board notes that if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases which are listed at 38 C.F.R. § 3.309 (e), if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307 (a) (6) (iii), 3.307(e). Prostate cancer can be presumptively service-connected based on herbicide exposure. 38 C.F.R. § 3.309 (e). Further, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). The Veteran underwent a VA examination in October 2018 for his claimed prostate cancer disability, during which his private diagnoses of prostate cancer with residuals and erectile dysfunction (ED) were confirmed. However, the record does not include an etiological medical assessment of the Veteran's prostate cancer claim with regards to his military service, including on a direct service connection basis. With regards to his service connection claim for penile cancer, the Board notes that this cannot be service connected on a presumptive basis but can be based on a direct service connection or secondary service connection, which the Veteran is also asserting as another basis for his claim. Although the record also includes a private diagnosis of penile cancer, the October 2018 VA examination did not include any evaluation related to his penile cancer disability claim. The Board also notes that the Veteran's service records reflect that while in service, he was administered penicillin injections for urethritis in February 1967, and opinions to determine whether those incidents are related to any currently diagnosed disabilities associated with his urethra should also be evaluated. Such development is necessary when the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Consequently, the Board finds that a remand for verification of the Veteran's assertions of Agent Orange exposure and for a VA examination to determine the nature and etiology of the Veteran's claims, including on a direct and secondary service connection bases is warranted. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's assertions of in-service exposure to Agent Orange in the perimeter of the DMZ in 1968. The Agency of Jurisdiction (AOJ) must take the necessary actions to comply with the evidentiary development procedures. Specifically, contact the Department of the Army, the National Personnel Records Center (NPRC), and the U.S. Army and Joint Services Records Research Center (JSRRC) to request information on all duty assignment for the Veteran during his service in the Army Reserve from 4/1/68 to 8/31/71. The AOJ should note that the Veteran provided more specific and clarifying details during his virtual testimony at the Board hearing in July 2021 with regard to his assertions of Agent Orange exposure, particularly with regard to his report of his exposure during ACDUTRA in 1968. If additional information is necessary, the RO shall contact the Veteran to obtain clarification. If there is still insufficient information to verify exposure to herbicide agents, the RO should issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 2. Provide the Veteran with an appropriate examination with a VA qualified clinician to determine the etiology of his claimed prostate and penile cancer disabilities. The complete electronic record, including this Remand, must be made available to, and reviewed by the VA examiner prior to conducting the examination. All necessary tests and studies should be conducted, and all clinical findings must be reported in detail and correlated to specific diagnoses. Thereafter, the examiner is requested to provide responses to the following questions: a) Identify all diagnoses related to the Veteran's prostate disability claim, including prostate cancer. b) Identify all diagnoses related to the Veteran's penis disability claim, including penile cancer. c) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any identified prostate disability, including prostate cancer, is causally related to his active military service (such as, administration of penicillin injections for urethritis in February 1967), to include exposure to Agent Orange or any other herbicide agents. d) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any identified penile disability, including penile cancer, is causally related to his active military service (such as, administration of penicillin injections for urethritis in February 1967), to include exposure to Agent Orange or any other herbicide agents. The examiner is advised that the Veteran is competent to report his medical history, including the onset of symptoms, and such reports must be acknowledged and considered in formulating the requested opinion. The examiner is reminded that the absence of a disease from the presumptive list does not preclude a Veteran from otherwise proving that his disability resulted from exposure to herbicide agent. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. A complete and well-explained rationale must be provided for all opinions rendered, citing to supporting factual data and medical literature, as deemed appropriate. A report containing unsupported or unexplained conclusions will be deemed inadequate. If the examiner cannot respond to an inquiry without resorting to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion and whether there is additional evidence that would permit the necessary opinion to be made. 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case (SSOC) to the Veteran and his representative, afford them an opportunity to respond, and thereafter return the case to the Board, if necessary. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.