Citation Nr: 21071835 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 11-14 485 DATE: December 1, 2021 REMANDED The issue of entitlement to service connection for residuals of prostate cancer, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1955 to July 1959 and from August 1959 to August 1978. The Veteran passed away in May 2020, and the appellant is his son. The appellant was properly substituted in an August 2020 VA memorandum. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for prostate cancer residuals and erectile dysfunction. The Veteran timely perfected an appeal. See September 2009 Notice of Disagreement; April 2011 Statement of the Case; May 2011 VA Form 9. In September 2017, the Board, in pertinent part, denied entitlement to service connection for prostate cancer residuals and erectile dysfunction. The Veteran appealed the September 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 order, the Court granted a May 2018 Joint Motion for Partial Remand (JMR), which vacated and remanded the Board's September 2017 decision for action consistent with the terms of the joint motion. In January 2019, the Board again denied entitlement to service connection for prostate cancer residuals and erectile dysfunction. The Veteran appealed the January 2019 Board decision to the Court. In a June 2020 Memorandum Decision, the Court vacated and remanded the Board's January 2019 decision for action consistent with the terms of the Memorandum Decision. In May 2021, the Board remanded this matter for additional development. Finally, the Board notes that the issues of entitlement to service connection for a right shoulder condition and a right hip condition, which were denied by the Board in a December 2020 decision, were recently returned to the Board from the Court. See October 2021 JMR and CAVC Order. However, the Board notes that these issues are still in development and will be addressed in a separate decision, after the time period afforded to the appellant to submit additional evidence and argument has elapsed and all due process requirements have been completed. Although the Board regrets the additional delay, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issues on appeal. The Veteran sought service connection for prostate cancer residuals, claimed as due to exposure to herbicides during service. While the primary focus of development in this case has been attempting to verify the Veteran's asserted visitation to Vietnam, the Board notes that no development has been undertaken regarding the Veteran's service in Thailand. In this regard, personnel records reflect that the Veteran was stationed in Thailand from September 1967 to September 1968. VA's Adjudication Procedures Manual, M21-1MR, notes that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era. See VBA Live Manual, M21-1, Part VII, Subpart i, Chapter 1, Section A, Topic 4 (change date December 31, 2019). It directs, in pertinent part, that if a Veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs), including Udorn, as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed him near the air base perimeter as shown by the evidence of record, then herbicide exposure is to be conceded. Id. If herbicide exposure cannot be conceded based upon the facts described above, the Veteran is to be asked for the approximate dates, location, and nature of the alleged herbicide exposure. If the Veteran fails to furnish the requested information, the claim will be referred to the RO research coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. The claim may then be decided based on the evidence of record. Id. If the Veteran furnishes the requested information within 30 days, the information is to be reviewed and a determination is to be made whether herbicide exposure can be established on a direct or facts found basis. If such exposure cannot be established and the Veteran has not provided sufficient information to permit a search by the VA Military Records Research Center (MRRC), the claim will be referred to the RO research coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. The claim may then be decided based on the evidence of record. Id. However, if herbicide exposure cannot otherwise be established and the Veteran has provided sufficient information to permit a search by the MRRC, a request is to be sent to the MRRC for verification of herbicide exposure. Id. In the present case, the Veteran's service personnel records confirm that he served at Udorn Royal Thai Air Force Base (RTAFB) from September 1967 to September 1968. The records also reflect that he worked as a communications center supervisor. Thus, although he served at one of the specified Royal Thai Air Force Bases during the Vietnam era, he did not serve as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron. Likewise, the evidence does not currently show that he otherwise served near the air base perimeter. However, it does not appear that the evidentiary development procedures required when there is an allegation of exposure to herbicides at a location such as Thailand have been followed. The United States Court of Appeals for Veterans Claims (Court) has consistently held that evidentiary development procedures provided in the Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999). In this case, no referral to the MRRC has been made, and a formal finding for the record regarding the Veteran's allegation of exposure to herbicides in Thailand has not been prepared. Moreover, VA did not inform the Veteran or the appellant that providing evidence showing service near the perimeter of Udorn Air Force base may assist in the substantiation of this claim. Accordingly, the Board finds that a remand is necessary in order for the AOJ to undertake the development required by VA's Adjudication Procedures Manual regarding Thailand service. Finally, with respect to the claim of entitlement to service connection for erectile dysfunction, the Board finds that this claim is inextricably intertwined with his pending service connection claim for prostate cancer residuals. Specifically, the Veteran contended that erectile dysfunction was secondary to his prostate cancer. Thus, it is appropriate to defer final appellate review of that issue until the inextricably intertwined claim of entitlement to service connection for prostate cancer residuals has been adjudicated. See Harris v. Derwinski, 1 Vet. App. at 183 (1990) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Send a letter to the appellant and his representative informing him of the information and evidence necessary to substantiate the claim for service connection based on claimed exposure to herbicides, to include specific information regarding presumed herbicide exposure for Veterans with Thailand service, e.g., concerning perimeter duty. The letter should ask him to submit any evidence of duties that required the Veteran to be at or near the base perimeter while serving at Udorn RTAFB. Additionally, the appellant should be asked to identify the approximate dates, location, and nature of the Veteran's alleged exposure to Agent Orange or other tactical herbicides in Thailand. If there is insufficient data available to formulate a request within MRRC guidelines, ask the appellant to provide sufficient detail to submit a verification request of herbicide exposure in Thailand to MRRC. Thereafter, attempt to verify the Veteran's claimed exposure to herbicides including in relation to service in Thailand during the Vietnam era, per current M21-1MR provisions. Any response from MRRC (positive or negative) should be associated with the claims file. If insufficient data is available to formulate a request within MRRC guidelines, a memorandum to that effect should be prepared and associated with the claims file. 2. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the claim. If the claim is denied, supply the appellant and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.