Citation Nr: 21066299 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-25 126 DATE: October 29, 2021 REMANDED Entitlement to service connection for polycythemia vera, including as due to herbicide or benzene exposure, or as secondary to service-connected residuals of prostate cancer, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from October 1968 to September 1971, to include service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in December 2019 and September 2020, where the issue on appeal was remanded for further development. Unfortunately, for the reasons discussed below, remand for additional development is once again necessary. As such, no further discussion of remand compliance is necessary at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran requested a hearing before the Board in the May 2016 substantive appeal, via VA Form 9. The record indicates that the Veteran did not attend the scheduled hearing in March 2019. As the Veteran has not presented any reasons for not attending the March 2019 Board hearing, the hearing request has been withdrawn. 38 C.F.R. § 20.603(d). Service Connection for Polycythemia Vera is Remanded VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). At the outset, the Board notes that the DD Form 214 appears to be missing from the file, despite multiple prior references to it being reviewed in the past. As such, it appears that the DD Form 214 might not have been scanned into the electronic file. On remand the Agency of Original Jurisdiction (AOJ) should ensure that the DD Form 214 is associated with the electronic file. The Veteran has essentially advanced three service connection theories. First, that the polycythemia vera is due to presumed in-service herbicide exposure during service in the Republic of Vietnam. Second, that the polycythemia vera may be due to in-service toxin exposures, to include exposure to benzene solvent, as part of service responsibilities as an avionic navigation equipment repairman working in an aviation maintenance unit. Third, that the polycythemia vera may have been caused or aggravated by the service connected prostate cancer residuals. On the question of herbicide exposure, while polycythemia vera is not presumptively associated with herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Unfortunately, the VA examiners' opinions in January 2020 and October 2020 (that it less likely than not that the currently diagnosed polycythemia vera was related to presumed in-service herbicide exposure) were based solely on the fact that this disability is not included on the list of presumptive diseases related to exposure to the herbicide Agent Orange. The opinions do not answer the medical nexus question based on the specific facts of this Veteran's case. As such, the Board finds the January and October 2020 VA herbicide opinions to be inadequate. Next, in the September 2020 Remand, the Board found that the Veteran was exposed to various solvents containing benzine while working in an aviation maintenance unit; however, during the course of this appeal the Veteran has advanced being exposed to benzene (not benzine, which is different). Benzene is in fact a solvent. While it appears that this was merely a typo on the Board's part, as the subsequently received October 2020 VA medical opinion addressed whether the Veteran's polycythemia vera was due to in-service benzine exposure (instead of benzene exposure), there remains a question as to whether the October 2020 VA medical opinion was addressing benzine or benzene. Finally, on the question of secondary service connection (38 C.F.R. § 3.310), it appears that the VA examiner in January 2020 opined it less likely than not that the polycythemia vera was aggravated by the service-connected prostate cancer residuals because the Veteran had received surgery for the prostate cancer in 2005, and the polycythemia vera was not diagnosed until 2011; however, review of the private treatment records indicates that the polycythemia vera had been diagnosed in 2007, if not earlier. As such, the Board finds the January 2020 secondary service connection opinion to be based on a slightly inaccurate factual assumption as to the date of diagnosis of polycythemia vera. For the above reasons, the Board must remand the issue on appeal for a new medical opinion. Considering the complexity of the medical questions at issue, a medical specialist opinion from an oncologist or other appropriate cancer specialist is preferred. The matter is REMANDED for the following action: 1. The AOJ should ensure that the Veteran's DD Form 214 is associated with the electronic claims file. 2. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning polycythemia vera. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorder, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Associate with the record all VA treatment records pertaining to the treatment of polycythemia vera, not already of record, for the period from September 2020. 4. Obtain a medical opinion from an oncologist or other appropriate cancer specialist. The relevant facts and medical history should be made available to the specialist. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The specialist should provide the following opinions: A) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's polycythemia vera was due to the presumed in-service exposure to the herbicide Agent Orange? If the specialist opines that the polycythemia vera is not due to in-service herbicide exposure, the negative opinion may not be based solely on the fact that polycythemia vera is not included on the presumptive disease list. Rather, the VA examiner should explain why, under the facts specific to this Veteran's case, it is less likely than not that the polycythemia vera was caused by the presumed in-service Agent Orange exposure. B) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's polycythemia vera was due to various toxic exposures related to in service duties as an avionic navigation equipment repairman working in an aviation maintenance unit, to include exposure to benzene solvent? C) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's polycythemia vera was caused by the service connected prostate cancer residuals, to include the prostate cancer itself, treatment for the prostate cancer, and/or residuals stemming from the prostate cancer? D) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's polycythemia vera was aggravated by (that is, worsened in severity by) the service connected prostate cancer residuals, to include the prostate cancer itself, treatment for the prostate cancer, and/or residuals stemming from the prostate cancer? 5. Then readjudicate the remanded issue. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.