Citation Nr: 21066206 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 20-14 128 DATE: October 28, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1960 to November 1963 and from January 1965 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the March 2020 VA Form 9, Substantive Appeal, the Veteran requested a Board videoconference hearing. In December 2020, the Veteran was notified of his opportunity to attend an optional Board virtual hearing scheduled for February 22, 2021. The Veteran was told that if he did not wish to attend the scheduled Board virtual hearing, he would retain his place in line for the scheduling of a Board videoconference hearing. The Veteran did not appear for the February 22, 2021 Board virtual hearing. In April 2021, the Veteran was notified that a Board videoconference hearing was scheduled for June 15, 2021. VA's Veteran Appeals Control and Locator System indicates that the Veteran did not appear for his scheduled June 15, 2021 Board videoconference hearing. On June 16, 2021, the Veteran submitted a statement indicating that he was unable to appear at the scheduled June 15, 2021 Board videoconference hearing due to unidentified health issues and "no other means to connect to the scheduled virtual hearing." This latter explanation is nonsensical, as the scheduled Board hearing was not virtual, and the Veteran was required to appear at the Chicago Regional Office. Nevertheless, the Veteran requested a rescheduling of his Board hearing. Pursuant to 38 C.F.R. § 20.603(c), "requests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown." The record shows that the Veteran did not file a timely request for a postponement in the applicable period prior to his scheduled June 15, 2021 Board videoconference hearing. Pursuant to 38 C.F.R. § 20.603(d), "if an appellant...fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. A motion for a new hearing date following a failure to appear for a scheduled hearing must be in writing, must be filed within 15 days of the originally scheduled hearing date, and must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted." The Board has considered the Veteran's June 16, 2021 submission and hereby denies his request for a new hearing date due to failure to comply with the appropriate regulatory requirements. While the Veteran's submission was received within 15 days of his missed hearing date, and it explained why he failed to appear for the scheduled Board videoconference hearing, it did not address why a timely request for a new hearing could not have been submitted under the parameters of 38 C.F.R. § 20.603(c) prior to the June 15, 2021 Board videoconference hearing date. The provisions of 38 C.F.R. § 20.603(d) are clear that the motion "must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted." (Emphasis added) The use of the conjunction "and" in the regulation means that both criteria must be met before the motion can succeed. Cf. Melson v. Derwinski, 1 Vet. App. 334, 337 (1991)(noting that the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). As the Veteran did not comply with the legal requirements for requesting a new hearing date, his motion for such must be denied, and his hearing request is deemed as withdrawn. The Board acknowledges that the Veteran was sent additional correspondence on June 22, 2021 notifying him that he could attend an optional Board virtual hearing scheduled for September 24, 2021. The Veteran did not appear at this scheduled virtual Board hearing. Although the June 22, 2021 notice letter indicated that if the Veteran did not wish to appear at a virtual hearing, he would retain his place in line for the scheduling of a Board videoconference hearing, the undersigned Veterans Law Judge has determined that the Veteran did not comply with 38 C.F.R. § 20.603(d) when he failed to appear at the scheduled June 15, 2021 Board videoconference hearing. The law is clear that "no further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date." (Emphasis added). As the Veteran's June 16, 2021 submission did not explain that the cause of his absence at the June 15, 2021 Board videoconference hearing also prevented him from filing a timely request for postponement, the law dictates that no further requests for a Board hearing may be entertained at this junction. In Quinn v. Wilkie, 31 Vet. App. 284 (2019), the United States Court of Appeals for Veterans Claims (Court) held that a Board remand order constitutes a decision in an appeal, to the extent that the Board's order has nullified or canceled the legal effect of the prior rating decision and Statement of the Case. Thus, the Board's decision, supra, regarding the Veteran's hearing request applies only to this stage of the proceedings. If the requested evidentiary development does not fully resolve the appeal, the matter may return to the Board under the legacy system to be decided "anew," at which time, the Veteran may request a new Board hearing. See id. at 289-90. Additionally, if the requested evidentiary development does not fully resolve the appeal, a Supplemental Statement of the Case (SSOC) shall be issued by the RO, and the Veteran shall be granted the opportunity to opt his claim into the modernized appeal system, where one of the review options includes an appeal to the Board, with the option of selecting the Board's hearing docket. See 38 C.F.R. §§ 3.2400(c)(2), 3.2500(a)(1)(ii), 20.202(b). 1. Entitlement to service connection for prostate cancer is remanded. The Veteran seeks entitlement to service connection for prostate cancer. He alleges that this condition arose as a result of exposure to herbicide agents during his service at Kadena Air Base in Okinawa, Japan. The Veteran's service department records confirm that he served in Okinawa, Japan from September 1960 to May 1962. The Veteran's VA treatment records demonstrate he has been diagnosed with prostate cancer in close proximity to the filing of his service connection claim. Per VA regulations, if a veteran was exposed to herbicide agents during service, certain diseases are presumed to have been incurred in-service, if they manifest to a compensable degree within specified periods, and even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Prostate cancer is included in the list of enumerated diseases. However, critically, exposure to herbicide agents is not presumed for those veterans stationed in Okinawa, Japan. The presumptive regulations do not preclude a veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Thus, to support an award of entitlement to service connection in the current instance and in consideration of the Veteran's contention, the evidence must demonstrate that his prostate cancer has been caused by actual exposure to herbicide agents while serving on active duty. The Veterans Benefits Administration's M21-1 Adjudication Procedures Manual contains provisions regarding the development of claims based on herbicide agent exposure for locations outside of the Republic of Vietnam and the Korean Demilitarized Zone. See M21-1, VIII.i.1.A.6.a. (last accessed 10/28/21). The provisions dictate that a veteran's assertion of in-service exposure to herbicide agents should be sent to VA's Compensation Service for cross-referencing with the Department of Defense's (DoD) inventory of herbicide operations. If exposure cannot be verified, and the veteran has provided sufficient information to permit a search by VA's Military Records Research Center (MRRC), the successor to the U.S. Army and Joint Service Records Research Center (JSRRC), the claim is to be forwarded to the MRRC for additional verification efforts. See 86 Fed. Reg. 15413 (Mar. 23, 2021) (VA has removed any reference to the JSRRC from its regulations as the entity no longer exists. Nonetheless, the military records previously researched by the JSRRC remain available for research by VA as an official source of records through the MRRC). In the present matter, the Veteran's allegations of in-service herbicide agent exposure during his Okinawa service from September 1960 to May 1962 was referred to the Compensation Service for cross-referencing against the DoD's inventory of herbicide operations in July 2017. The RO received a response in August 2017 indicating that the DoD's inventory of herbicide operations could not verify the Veteran's claimed herbicide agent exposure. In relevant part, the response stated: DoD has not identified any location on the island of Okinawa, including Kadena Air Base, 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 on 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. Also, all use of Agent Orange by the US military did not begin until 1962, two years after your Veteran's first claimed exposure. All evidence shows that any herbicide use the claimant or others observed, or were associated with, was the commercial variety, not Agent Orange. In accordance with M21-1 guidance, the response stated that unless the claim was inherently incredible or clearly lacked merit, it should be referred to the JSRRC for further attempts to corroborate the claimed herbicide agent exposure. It was noted that the JSRRC "will generally only search a 60-day time frame." The RO filed a request for the JSRRC to search appropriate record repositories in an attempt to corroborate the Veteran's allegation of in-service herbicide agent exposure in Okinawa. In February 2018, the RO received a response from the JSRRC, stating the following: We researched the available January 1961 through February 1961 history submitted by the 6313th Air Base Wing (ABW), higher headquarters for the 6313th Material Squadron (MS), stationed at Kadena Air Base (AB), Okinawa during January through February 1961. However, after a review of the history, we were unable to document that [the Veteran] was exposed to Agent Orange or tactical herbicides during his tour of Kadena AB. The history was negative, and did not report on, or discuss unit personnel being exposed to Agent Orange, or tactical herbicides while performing daily duty assignments at Kadena AB. Also, the history was further negative, and did not report on Kadena AB storing, testing or spraying Agent Orange or tactical herbicides during the specified time periods. Despite the Veteran's allegations that he was exposed to herbicide agents between September 1960 and May 1962 while serving at Kadena Air Base in Okinawa, the JSRRC limited its search to the time period between January and February 1961. VA's duty to assist requires VA to undertake continual efforts to obtain records from a Federal department or agency until such a search becomes futile. 38 U.S.C. § 5103A(c)(2). In Gagne v. McDonald, 27 Vet. App. 397 (2015), the Court held that "the Secretary must make as many research record requests as are necessary and that a search for records is 'futile' only when it becomes clear the record does not exist or is not in the possession of the custodian." See id. at 403. The Court held that VA's duty to assist is not bound by the JSRRC's 60-day requirement, and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. See id. at 404. Accordingly, under Gagne, where a period of time identified by a veteran is longer than the two-month period required by the JSRRC, "the duty to assist require[s] VA to submit multiple 60-day record searches." See id. As the RO has not exhausted its efforts to verify the Veteran's claimed herbicide agent exposure for the entire period alleged during his September 1960 to May 1962 service in Okinawa, the claim must be remanded for further verification requests to the MRRC (the successor to the JSRRC). At this juncture, the Board intimates no opinion regarding the competency, credibility, or weight to be afforded to the Veteran's lay statements addressing in-service exposure to herbicide agents during his service at Kadena Air Base in Okinawa. Lastly, the RO is requested to obtain any updated VA treatment records from October 2019 to the present. 38 C.F.R. § 3.159(c)(2) and (3 The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2019 to the present. 2. Forward the Veteran's allegations that he was exposed to herbicide agents during his September 1960 to May 1962 service at Kadena Air Base in Okinawa to VA's MRRC for verification research. As the research period in question exceeds 60 days, the RO should make as many requests to the MRRC as are necessary to cover the entire research period in question. See Gagne, supra. The period from January to February 1961 was already addressed in the February 2018 JSRRC response. The Veteran served in the 6313th Air Base Wing's 6313th Supply and Material Squadrons during the time period in question. 3. Thereafter, the RO should readjudicate the Veteran's claim. If any benefit sought remains denied, a SSOC must be provided to the Veteran and his representative. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.