Citation Nr: A21017011 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 200730-100655 DATE: October 20, 2021 REMANDED Entitlement to service connection for a brain tumor, to include as due to exposure to environmental hazards, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1962 to December 1971, from January 1972 to January 1976, and from June 1981 to May 1986, to include service in Vietnam. The rating decision on appeal was issued in October 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Veteran initially requested the hearing option in the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). A March 2021 correspondence advised the Veteran that a hearing was scheduled for June 2021. The Veteran did not appear for the scheduled Board hearing; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following the date of the scheduled hearing. 38 C.F.R. § 20.302(c). Unfortunately, the Board finds that remand is required so that additional development can be undertaken to correct a duty to assist error that occurred prior to the October 2019 rating decision on appeal. 38 C.F.R. § 20.802(a). Entitlement to service connection for a brain tumor is remanded. The Veteran seeks service connection for a brain tumor which he claims is due to his active service. Specifically, the Veteran contends that his brain tumor developed as a result of either in-service exposure to herbicides, or in-service exposure to contaminated water at Camp Lejeune. The Veteran reported that in Vietnam he contracted an ear fungus that would flare up every time he went into a hot, humid zone. Alternatively, the Veteran contends that his brain tumor developed as a result of an injury in Vietnam during which he was struck on the forehead resulting in a "concussion, stitches, and [an] infection." See October 2019 VA Form 9, December 1968 Service Treatment Records. The Board notes that the Veteran was never provided a VA examination for his currently diagnosed brain tumor. VA's duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 83 86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Id. at 83. Here, military personnel records show that the Veteran served in the Republic of Vietnam during his active-duty service. Thus, exposure to herbicide agents is presumed. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Brain tumors are not included in the list of presumptive diseases under 38 C.F.R. § 3.309 (e) regarding herbicide agents. However, notwithstanding the presumptions, service connection for a disability claimed as due to herbicide exposure during the Vietnam War may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). In light of the above, the Board finds that there is competent evidence that the Veteran has a current brain tumor disability that may have been incurred in or aggravated by active-duty service. This evidence triggers VA's duty to provide the Veteran with a medical examination and to obtain a medical opinion on his behalf in order to fairly decide his claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, as noted above, the Veteran has not been afforded a VA examination for his service connection claim for a brain tumor. This constitutes a pre-decisional duty to assist error, and the claim must be remanded so that the Veteran can be afforded the appropriate examination and medical opinion prior to adjudication. 38 C.F.R. § 20.802(a). Accordingly, the matter is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records. 2. Undertake all necessary action to attempt to verify the dates of the Veteran's service at Camp Lejeune. All requests and responses received should be associated with the claims file and the Veteran should be notified of the outcome. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his brain tumor. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. The examiner should address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's brain tumor is related to his military service, to include his presumed exposure to environmental hazards, to include herbicide agents, his reported exposure to contaminated water, and the December 1968 in-service injury to his forehead. The examiner is advised that although brain tumors are not presumptively linked to herbicides or contaminated water, they can still in fact be causally linked to such exposure. A complete rationale for any opinion expressed must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.