Citation Nr: 21070274 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-32 779 DATE: November 23, 2021 REMANDED Entitlement to service connection for nodular sclerosis, Hodgkin's disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1972 to September 1991. This matter comes before the Board of Veteran's Appeals (Board) from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2019 when the claim was remanded for development. The Board finds the March 2019 remand directives have not been substantially complied with, and the matter must be remanded again. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2020, the Veteran's representative submitted a statement noting the Veteran's correct mailing address and asserting that the Veteran had missed a VA examination because the examination notification had been sent to a different address. See Statement in Support of Claim of January 2020. This statement will be addressed in more detail below. However, as a threshold matter, it is noted that the Veteran's address of record has been updated to reflect the address noted in the statement of January 2020. The Veteran is respectfully reminded that he has a responsibility to keep VA informed of changes of address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Entitlement to service connection for nodular sclerosis, Hodgkin's disease, is remanded. The Veteran seeks service connection for hodgkin's lymphoma, to include as due to exposure to herbicide agents during service. In favor of his claim the Veteran has asserted that his condition began in service and was misdiagnosed. See NOD. Alternatively, the Veteran has asserted that the condition may be related to exposures while stationed in the Philippines. In favor of this assertion, the Veteran noted that no other family member had been diagnosed with the condition and that while he was stationed in the Philippines he operated on a lot of aircrafts as a jet engine mechanic which could have exposed him to an herbicide agent. See hearing transcript pages 4 and 7. In March 2019, the Board remanded the claim for development to include an attempt to corroborate whether the Veteran was exposed to herbicide agents in the Republic of Philippines and for a new examination and medical opinion regarding his disability. Specific to the development to corroborate the Veteran's herbicide agent exposure in the Philippines, the Board requested that the AOJ provided the Veteran's description of alleged herbicide exposure in the Republic of the Philippines to the VA Compensation Service along a request for review of the inventory of herbicide operations maintained by the Department of Defense to determine whether herbicides were used, tested, or stored, at the Republic of Philippines. If herbicide exposure could not be verified by the Compensation Service, the Board requested the AOJ to seek verification from the JSRRC. Additionally, the Board requested a formal finding of insufficient information be issued if the Veteran's herbicide exposure could not be verified. See March 2019 Board remand directives. Pursuant to the Board remand directives, AOJ contacted the Compensation Services, provided the Veteran's military occupational specialty (MOS) of jet engine mechanic, the units he served with in the Philippines and the time periods the Veteran was stationed there. See correspondence of October 2019. That same month, Compensation Services provided a response explaining that Compensation Services could not provide evidence to support the Veteran's claim as the Department of Defense has not identified any location in the Philippines where herbicide agents were used, tested, stored, or transported and that there was no need for herbicide agent use in Philippines because there were no combat operations there. See correspondence of October 2019. Another response indicated that there was no documentation that an herbicide agent was utilized as a vegetation control tool at Clark Air Force Base (Clark AFB) at any time and that the unit histories of organizations located at Clark did not mention vegetation control issues. See Correspondence provided by the Air Force Historical Research Agency, associated with he claims file in November 2019. Additionally, the AOJ completed a JSRRC request form indicating the Veteran's periods of service and unit assignments while stationed at Clark AFB in the Philippines, to attempt to corroborate herbicide agent exposure. However, that request was deemed not valid and closed by the JSRRC because it incorrectly included two units with two different 60-day time periods. See JSRRC response, associated with the claims file in December 2019. AOJ attempted to obtain herbicide exposure corroboration through the JSRRC again in February 2020 and June 2020. Both times, the AOJ was informed that the JSRRC was closed due to the pandemic. See correspondence of April 2020, and June 2020. In June 2021, the Military Records Research Center (MRRC) notified the AOJ that they were unable to research the request regarding the Veteran's alleged exposure to an herbicide agent while in the Philippines from October 1970 to March 1972 or from December 1975 to June 1978, because the circumstances of exposure were not provided. See response associated with the claims file in June 2021. In July 2021, the AOJ sent the Veteran a letter asking him to provide the circumstances that exposed him to an herbicide agent. See letter of July 2021. No response from the Veteran was received. Based on the above, the Board finds that while significant efforts were undertaken by the AOJ to attempt to corroborate the Veteran's herbicide exposure, these attempts do not substantially comply with the Board remand instructions and further development is necessary prior to adjudication. Here, the AOJ was unable to corroborate the Veteran's herbicide agent exposure due to procedural and pandemic related complications. As noted above, no response from JSRRC was obtained as the first request was closed due to it being found invalid for research purposes and subsequent requests were submitted while the JSRRC was closed due to the pandemic. Further, while AOJ attempted to complete an alternate research request through the MRRC, the request was not processed because it lacked information as to the circumstances of exposure. Finally, although AOJ was unable to corroborate the alleged herbicide agent exposure, no formal finding as to that effect was issued as requested by the Board in the remand directives of March 2019. Thus, the Board finds that these efforts do not substantially comply with the prior Board remand directives and the matter must be remanded for substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). The Board notes that the U.S. Department of Army, Records Management and Declassification Agency (RMDA) has realigned its records research activities and the Joint Services Record Research Center (JSRRC) no longer exists. Although the JSRRC no longer exists, the military records themselves previously researched by the JSRRC remain available for research by VA through the appropriate official source. See 86 Fed. Reg. 15413 (March 23, 2021). As such, the Board will direct the AOJ to use their new internal process for researching records and then, if unsuccessful, to research the records through any other process now available to access the appropriate official sources, to include the RMDA or the MRRC. Additionally, as the JSRRC no longer exists, the previous directive requesting the case be referred to the JSRRC coordinator to make a formal finding of insufficient information is no longer valid or applicable. Thus, the Board will not include such development in the directives of this remand and alternatively will request that all efforts undertaken to corroborate the alleged herbicide exposure be documented in the claims file. In addition to the above, the Board notes that, effective June 2015, VA published an interim rule establishing a presumption of exposure to certain herbicide agents for the veterans who served under circumstances that required regular contact with UC-123 aircrafts used to spray herbicide agents in Vietnam. See 80 Fed. Reg. 35246-01 (June 19, 2015), codified at 38 C.F.R. § 3.307 (a)(6)(v); see also Institute of Medicine, National Academy of Sciences, Post-Vietnam Dioxin Exposure in Agent Orange Contaminated C-123 Aircraft 10 (2015). The interim rule establishes that some of the maintenance personnel that served in the south-east Asia and had regular exposure to UC-123s were located at Clark AFB, Philippines. The Veteran's military personnel records show the Veteran's MOS was a jet engine mechanic and that he was stationed in Clark AFB, Philippines from October 1970 to March 1972 and from September 1976 to September 1978. See military records including performance reports associated with the claims file in November 2018. Thus, in addition to the Veteran's testimony at the hearing, the record raises the possibility that the Veteran may have been exposed to an herbicide agent in Clark AFB, Philippines, as part of his duties as a jet engine mechanic. However, this possible exposure has not yet been developed or corroborated by AOJ- as the efforts to corroborate exposure centered around known herbicide agent use or storage, etc. Accordingly, the Board finds the matter must be remanded for further attempts to corroborate the Veteran's claimed exposure to herbicide agents while stationed in Clark AFB, Philippines, in view of the above. As noted previously, in addition to attempts to corroborate the Veteran's alleged herbicide agent exposure, the Board requested a medical examination and medical opinion addressing the Veteran's disability and its likely etiology. See Board remand directives of March 2019. The claims file reveals that only medical opinions addressing the likely etiology of the Veteran's condition were obtained and no examination was completed. See medical opinions associated with the claims file in February 2020. The claims file contains a document indicating that the Veteran did not attend the scheduled examination but did attend the diagnostic lab test scheduled. As such only laboratory results were submitted for evidence purposes. The document also indicates that the examination request did not authorize rescheduling See QTC addendum associated with the claims file in February 2020. The Board observes the Veteran's representative submitted a statement explaining that the exam notification had been sent to the wrong address and as a result the Veteran had missed it. See Statement in Support of Claim of January 2020. Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1 (q). Here, the claims file reveals that in June 2019, the Veteran submitted a VA Form 20-0996, Request for Higher Level Review, regarding other issues that are not part of this appeal. In this VA Form 20-0996, the Veteran noted a "current address" different than the one of record prior to that date. See VA Form 20-0996 of June 2019. Subsequent VA notifications were sent to the address indicated in the VA Form 20-0996 of June 2019, including a letter that advised the Veteran that a contractor would be in touch with him about the examination. See VA letter of January 2020. The next document available in the claims file, following the letter regarding the examination, is the Veteran's representative statement noting the Veteran's correct address, asserting that the notification of examination had been sent to the incorrect address and requesting the examination to be re-scheduled. See Statement in Support of Claim of January 2020. Thus, while the record shows the notification letter regarding the examination was sent to an address different than the one noted in the statement of January 2020, the claims file reveals that the address used was the "last address of record" for the Veteran at the time; in view of the VA Form 20-0996 of June 2019. There is no indication in the claims file that this mail, or other mail sent to the address indicated in the VA Form 20-0996, was returned to VA as undeliverable. Additionally, a copy of the letter was sent to his representative. Moreover, the Veteran did appear for the laboratory testing that had been scheduled, although it is unclear from the claims file why was he able to attend the laboratory testing but not the physical examination. Accordingly, based on the specific facts of this case, the presumption of administrative regularity would apply, and no reexamination would be warranted based on the alleged notification issue. It is noted that rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, nonreceipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). However, notwithstanding the above, and considering the matter must be remanded for development, the Board will resolve doubt in the Veteran's favor to provide him another opportunity to be examined. In the present case the Board requested the medical examination in view of the Veteran's testimony at the hearing. Additionally, the Veteran demonstrated his willingness to be examined and it seems the examination was not re-scheduled by the private provider because they were not explicitly authorized to do so in the examination request. Further, the AOJ did not reschedule the examination despite the explicit request for rescheduling by the representative in the statement of January 2020, which was submitted soon after the missed examination. Accordingly, the Board will remand the matter for an examination. The Board notes that at the hearing the Veteran asserted having difficulties with long drives due to his disabilities and expressed interest in his examination being scheduled close to his home. See hearing transcript page 10. Thus, the Board requests that reasonable efforts be made to schedule the Veteran's examination as close as possible to his home or within a 20-mile radius, if possible. Finally, the Veteran is apprised that it is his responsibility to keep VA informed of his whereabouts (address) and any failure to report to a future examination will likely result in his claim being adjudicated on the evidence of record. As to the medical opinions obtained and associated with the claims file in February 2020, the Board finds them inadequate for adjudication purposes. Both opinions subscribed by the examiner note the Veteran has a history of non-hodgkin's lymphoma. One medical opinion notes the evidence reviewed and explains that the condition is less likely than not related to service because the Veteran did not have symptoms until 2003, which is over 20 years after service, because the Veteran's STRs did not show evidence of lymphoma and because the Veteran's records did not confirm exposure to herbicide agents while in the Philippines. The second medical opinion restates the same evidence and the same conclusory statements while omitting references to any herbicide exposure. See medical opinions associated with the claims file in February 2020. The Board finds these medical opinions inadequate for adjudication purposes as the examiner mainly provided conclusory statements, did not provide a complete rationale for the opinions expressed, did not address the Veteran's lay statements regarding his condition having an in-service onset and heavily relied on the absence of the contemporaneous medical evidence to support a negative nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). It is noted that while the examiner asserted that the Veteran's service treatment records (STRs) did not show evidence of lymphoma, the examiner did not explain or note what type of evidence or findings would suggest lymphoma. Thus, the statement is conclusory in nature and does not provide sufficient information to the Board for adjudication purposes. Further, the examiner noted that more than 20 years had passed between the Veteran's separation from service and his diagnosis; but did not explain or note how would the period of time between separation and diagnosis be relevant as to the likely etiology of the condition. Additionally, it seems the examiner interpreted the Veteran's testimony at the hearing as an unequivocal assertion that his symptoms began in 2003. However, the hearing transcript reveals that the Veteran asserted that his condition became "obvious" to him around the year 2002 or 2003. He described experiencing neck swelling and night sweats. He also noted that while he mentioned the symptoms to his doctors, it was not until 2004 that the doctor was able to confirm swelling in the neck, which eventually led to the diagnosis later that year. See hearing transcript page 3. Thus, as the medical opinions obtained are inadequate for adjudication purposes, the Board finds that a new medical opinion must be obtained. Finally, the Board notes that the Veteran receives oncological treatment by Dr. H, a non-VA provider. See VA medical records for June 2016. However, it seems the Veteran has not provided an authorization or release for VA to obtain these medical records on his behalf. These records could be relevant to his claim of service connection and could serve to better illustrate his symptomatology prior to his diagnosis and any other associated residual he may have experienced as a result of the condition during the appeal period. Accordingly, upon remand, AOJ must provide the Veteran opportunity to submit the necessary authorizations so that VA may aid him in obtaining these records. The matter is REMANDED for the following actions: 1. Send the Veteran a letter, with copy to his representative, requesting sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain relevant outstanding private medical records, to specifically include oncology treatment from Dr. H throughout the appeal period, and any other private treatment record contemporaneous to his diagnosis in 2004. a. If the Veteran provides the completed release forms, attempt to obtain the records identified, with at least one follow-up request. b. If any sufficiently identified records are deemed unavailable, notify the Veteran and his representative pursuant to 38 C.F.R. § 3.159. 2. Obtain any outstanding VA medical record. The most recent VA medical record available in the claims file appears to date back to March 2020. 3. Contact VA's internal records processes (replacing JSRRC) and the appropriate official source (RMDA, MRRC or other) and request that they review all appropriate records to verify the Veteran's assertion of exposure to herbicide agents as part of his duties as a jet engine mechanic during his service at Clark AFB, Philippines from approximately October 1970 to March 1972 and/or from September 1976 to September 1978. For ease of reference the Board notes that the Veteran's military records (performance reports) show he was a jet engine mechanic, MOS 43250, assigned to the following units: 604 Mil Alft Spt Sq, Clark AFB, Philippines (MAC) from approximately October 1970 to October 1971 1600th Support Group, Clark AFB, Philippines (MAC) from approximately October 1971 to March 1972. 3d Tactical Fighter Wing, Clark AFB, Philippines (PACAF) from approximately September 1976 to September 1978. The Veteran also asserted having been assigned to "604 Mass Military Airlift Squadron" in or around 1971, and assigned to the "3rd Tactical Fighter Wing, maintenance squadron" in or around 1976. See report of general information of October 2019. a. The research requests must specifically request them to address whether the Veteran was exposed herbicide agents via contaminated aircrafts, to include contaminated aircraft parts, or worked in an area where contaminated aircrafts were also present, during his service at Clark AFB, Philippines as a jet engine mechanic, MOS 43250. Pursuant to Gagne v. McDonald, 27 Vet. App. 397 (2015), multiple sequential requests are required until the entire period is covered. b. Please contact the Veteran if additional information regarding the alleged exposure is necessary for corroboration purposes. All efforts by the AOJ to corroborate the alleged herbicide agent exposure must be documented in the claims file. 4. After any sufficiently identified records are associated with the claims file or deemed unavailable, and after efforts to corroborate the alleged herbicide agent exposure have been completed, schedule the Veteran for a VA examination, if possible, no further than 20 miles from his home, or as close to his home as possible, regarding his claimed disability and obtain a medical opinion addressing the likely etiology of the condition. The examination report must note any residual the Veteran may be experiencing due to the claimed condition. The Veteran's claims file, including the hearing transcript and a copy of this remand should be provided to the examiner. Following the examination and review of the pertinent evidence the examiner is asked to provide a medical opinion on the likely etiology of the condition: a. If herbicide agent exposure is conceded or corroborated by VA: i. the examiner is only requested to confirm whether the Veteran has been diagnosed with a disability for which presumptive service connection is available as due to herbicide agent exposure, to include non-Hodgkins lymphoma or hodgkin's disease, and note any residual he may be experiencing due to the condition. ii. If the examiner determines the Veteran has not been diagnosed with a disability for which presumptive service connection is available as due to herbicide agent exposure, the examiner is asked to note the diagnosis, explain the reason for the change and opine whether it is at least as likely as not that the diagnosed disability is related to the conceded exposure herbicide agents, had its onset in service, manifested within the year following the Veteran's separation from service, or is otherwise related to service (opinion for direct service connection). b. If the herbicide agent exposure is not corroborated by VA: i. the examiner is requested to opine whether it is at least as likely as not that the Veteran's claimed disability had its onset in service, manifested within the year following the Veteran's separation from service, or is otherwise related to service, to include consideration of the Veteran's duties as a jet engine mechanic and associated occupational exposures. The examiner should provide a well-reasoned rationale supported by the facts as to why the conclusion made was reached. If the examiner is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 5. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.