Citation Nr: 21071840 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-34 596 DATE: December 1, 2021 ORDER Service connection for residuals of prostate cancer is granted. REMANDED Entitlement to service connection for hypertension as due to exposure to herbicide agents is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a skin disability, to include skin cancer, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with prostate cancer, for which he has undergone surgery. 2. It is at least as likely as not that the Veteran was exposed to herbicide agents while serving in Thailand. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for residuals of prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from December 1970 to October 1973, to include service in Thailand. These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2012 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In its September 2012 rating decision, the RO found, in pertinent part, that new and material evidence had not been received to reopen previously denied claims of entitlement to service connection for skin cancer and PTSD. In its September 2013 rating decision, the RO, in pertinent part, denied service connection for a prostate condition, hypertension, hearing loss, and migraine headaches. In January 2019, the Veteran and his spouse testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In June 2019, the Board remanded the issues now on appeal to the agency of original jurisdiction (AOJ) for additional development. The Board found that new and material evidence had been received to reopen the previously denied claims of entitlement to service connection for skin cancer and PTSD. The Board directed the AOJ, in pertinent part, to contact the Veteran and request that he provide a release for records of treatment from any private care providers who had treated him for the disabilities at issue, to include any providers who had treated him for headaches; to obtain updated VA treatment records; to attempt to verify the Veteran's in-service exposure to herbicide agents; and to afford him VA examinations for his claims of service connection for an acquired psychiatric disorder and hearing loss. In December 2019, the AOJ sent the Veteran a letter asking him to identify and provide an appropriate release for records from private providers. While he testified at the January 2019 hearing that he had received private treatment for the issues on appeal, and the Board noted in its June 2019 remand that those records were not present in the claims file, in a submission dated in December 2019 the Veteran's representative responded to the AOJ's request for a release of information by stating that there were no additional private treatment records related to the issues on appeal. In December 2019, July 2020, and September 2020, the AOJ obtained updated VA treatment records. In January 2020, the AOJ afforded the Veteran VA examinations regarding his claims for service connection for an acquired psychiatric disorder and hearing loss. The Board therefore finds that the AOJ at least substantially complied with its June 2019 remand directives regarding records development and VA examinations. See Stegall v. West, 11 Vet. App. 268 (1998). As to the Board's remand directive regarding verification of the Veteran's exposure to herbicide agents, the Board notes that in its September 2020 supplemental statement of the case (SSOC), the AOJ stated that it had already completed memoranda in September 2012 and January 2017 showing that evidence was not sufficient to confirm or concede exposure to herbicide agents. While it does not appear, therefore, that the AOJ undertook the additional specific development directed by the Board in its June 2019 remand, inasmuch as the Board is finding that it is at least as likely as not that the Veteran was exposed to herbicide agents during service, there is no prejudice to the Veteran in regard to the AOJ's actions as to that remand directive. The Veteran's claim of entitlement to service connection for spondylosis of L4/5-S1 was also previously before the Board. In a September 2020 rating decision, the RO granted service connection for lumbosacral strain with degenerative changes and intervertebral disc syndrome, and for radiculopathy of the femoral and sciatic nerves of both lower extremities. As the September 2020 rating decision represents a full grant of the benefit sought with respect to that issue, it is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Entitlement to service connection for residuals of prostate cancer as due to exposure to herbicide agents. The Veteran seeks to establish service connection for residuals of prostate cancer on a presumptive basis, as due to exposure to herbicide agents. At the January 2019 hearing, he testified that his duties during service placed him at or near the perimeters of Ubon and Korat Royal Thai Air Force Bases (RTAFBs), where herbicides were used. He explained that his duties included picking up bomb lifts, that because he had a tractor's license he picked up and moved other equipment, and that he also lived 100 meters from the base perimeter. He further testified that he was on the ground in Vietnam itself on one occasion during service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure, to include prostate cancer. 38 C.F.R. § 3.309(e). In a May 2010 bulletin, VA determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source of this information was the declassified Vietnam-era Department of Defense (DOD) document entitled, "Project CHECO Southeast Asia Report: Base Defense in Thailand." Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), VA determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength commercial variant, were used. In light of this information, VA has determined that special consideration should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of diseases associated with herbicide exposure. The May 2010 bulletin identifies several bases in Thailand, including Ubon and Korat RTAFBs. VA has indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran served on an air base in Thailand and provided perimeter security. The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. There is no material dispute that the Veteran has been diagnosed with prostate cancer. An April 2016 VA treatment record shows he had a prostatectomy at that time due to prostate cancer. The key issue before the Board is whether the Veteran's prostate cancer is directly or presumptively related to his military service. The Veteran's DD Form 214 indicates that his military occupational specialty (MOS) was aerospace ground equipment operator, with the comparable civilian occupation being an airplane electrician. Military personnel records also confirm that he served at Ubon RTAFB from June 1972 to December 1972 and at Korat RTAFB from July 1973 to October 1973, which is within the presumptive period. A December 1972 performance report from Ubon RTAFB shows that the Veteran's duties included performing minor maintenance, and that he tested, inspected, and troubleshot bomb lifts and trucks. In September 2019, the Veteran submitted maps of Korat RTAFB which show that the flight line and many of the barracks were near the perimeter of the base. The Board finds the Veteran's contentions concerning his service on or near the perimeters of Ubon and Korat RTAFBs credible. His MOS, the December 1972 performance evaluation, the maps he provided, and his credible contentions are all consistent with a finding that his service frequently placed him at or near the perimeters of Ubon and Korat RTAFBs, where herbicide agents were known to have been used. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. As such, and resolving reasonable doubt in his favor, the Board finds that it is at least as likely as not that he was exposed to herbicide agents while serving in Thailand. Inasmuch as the Board finds that the Veteran was exposed to herbicide agents while serving in Thailand, it need not address his contention that he stopped in Vietnam itself during service. Because it is at least as likely as not that the Veteran was exposed to herbicide agents while serving in Thailand and he has also been diagnosed with prostate cancer, the criteria for an award of service connection have been satisfied. The appeal of this issue is granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims and to afford him every possible consideration. 1. Entitlement to service connection for hypertension as due to exposure to herbicide agents is remanded. The Veteran seeks to establish service connection for hypertension as due to exposure to herbicide agents. As an initial matter, the Board notes that the claims file demonstrates that he has a current diagnosis of hypertension. The first element of service connection has therefore been established. As to an in-service event, as noted above, the Board has determined that it is at least as likely as not that the Veteran was exposed to herbicide agents while serving in Thailand. Therefore, the second element of service connection has also been established. Regarding the link, or nexus, between the Veteran's in-service exposure to herbicide agents and his diagnosis of hypertension, the Board notes that the Veteran has not yet been afforded a VA examination and/or opinion with respect to hypertension. While hypertension is not currently among the diseases which have been presumptively linked to herbicide exposure under 38 C.F.R. § 3.309(e), the Board takes notice that the National Academy of Sciences (NAS) has upgraded the likelihood of an association between hypertension and exposure to herbicides, to include Agent Orange, from "limited or suggestive" evidence of an association to "sufficient" evidence of an association. See Veterans and Agent Orange: Update 11 (2018) (available at http://nationalacademies.org/ hmd/reports/2018/veterans-and-agent-orange-update-2018.aspx). Given the Veteran's current diagnosis, the evidence establishing in-service exposure to herbicide agents, and the recent NAS findings, the Board finds that a VA examination and/or opinion regarding direct service connection should be provided. Updated records of any VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). 2. Entitlement to service connection for migraine headaches is remanded. The Veteran contends that his migraine headaches were incurred in service. At his January 2019 hearing, he contended that they started while he was serving at Ubon RTAFB and that they have continued since. He noted that while records showed that the diagnosis came after a post-service work injury, the headaches had always been there and that they were the same as they were in service. The Veteran was afforded a VA examination in connection with his claim in August 2015. The examiner offered a negative nexus opinion, noting that the Veteran was seen for headaches on one occasion during service in November 1972 but that he also had a fever on that date. The examiner stated that it seemed like he had a viral infection, and that there were not any clinic visits for headaches until after service in 1982, when the Veteran had an accident with multiple injuries to multiple areas of his body. The examiner opined that based on that evidence, it was his opinion that the Veteran's headaches were more likely related to his severe work-related injury that occurred in 1982, rather than to military service. The Board finds that additional development is required so the August 2015 VA examiner can consider the Veteran's lay testimony at the January 2019 hearing that he has had headaches since service and that they are the same type he had in service, even though medical records show that he was not diagnosed with a chronic headache condition until 1982. 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for a skin disability, to include skin cancer, to include as due to exposure to herbicide agents, is remanded. The Veteran contends that he has a hearing loss disability that was incurred in or caused by service. He also contends that he has a skin disability that was incurred in or caused by service, to include as due to exposure to herbicide agents. He further contends that his skin disability is due to exposure to the tropical sun while serving in Southeast Asia. At times he has contended that his skin disability is skin cancer, but at the January 2019 hearing his spouse stated that she did not know if his skin condition was cancer or something else. The evidence of record indicates that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). During a January 2020 VA examination, an examiner noted that the Veteran stated that he had worked as a contractor in Iraq between 2007 and 2009 and that he was 'blown up' while there and became disabled. She noted that he provided paperwork from the SSA indicating that he became disabled pursuant to their rules in June 2009. While it is not entirely clear whether records from the SSA will be relevant to the claims which remain on appeal, the Board notes that without further information, it is not possible to make that determination. Thus far, it does not appear that any attempt has been made to obtain a complete copy of the medical records underlying the SSA's award. Because the records from SSA could contain information pertinent to the issues on appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 5. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, that was incurred in or caused by service. The Veteran was afforded a VA examination in connection with his claim in January 2020. The examiner offered a negative nexus opinion, finding that the Veteran did not have any mental health diagnoses that comported with the DSM-5. In a March 2021 submission, the Veteran's representative requested information pertaining to the qualifications and experience of the January 2020 VA examiner. The United States Court of Appeals for the Federal Circuit has held that once a request is made for information as to the competency of an examiner, "the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (citations omitted). In light of the Federal Circuit's holding in Francway, a remand is required so the AOJ can fulfill the representative's request for information pertaining to the January 2020 VA examiner's qualifications. These matters are REMANDED for the following action: 1. Undertake efforts to obtain the curriculum vitae and other information regarding the qualifications of the January 2020 mental health VA examiner. The information received should be associated with the claims file and made available for review by the Veteran's attorney. If the information sought is not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Ask the SSA to provide copies of any relevant records in its possession pertaining to its consideration of the Veteran's application for SSA disability benefits, to include any medical records considered in making that award, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 4. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to a qualified VA examiner for purposes of assessing the etiology of the Veteran's hypertension. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hypertension had its onset in, or is otherwise attributable to, service, to include as due to his presumed in-service exposure to herbicide agents. In so doing, the examiner must specifically address the November 2018 Veterans and Agent Orange: Update 11, citing a recent NAS report indicating that there is "sufficient" evidence of an association between hypertension and herbicide exposure. The need for an in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 5. Also arrange to provide the record on appeal to the VA examiner who offered an opinion regarding the Veteran's headache disability in August 2015. The examiner should review the record. After reviewing the record, the examiner should provide an addendum opinion as to whether it is at least as likely as not that the Veteran's migraine headaches had their onset in, or are otherwise attributable to, service. In so doing, the examiner should consider the Veteran's lay testimony to the effect that his headaches started in service and have continued since, and that even though he was not diagnosed with a headache disability until 1982, his headaches were present before that time and are the same as they were in service. If the August 2015 VA examiner is no longer employed by VA or is otherwise unable to provide the requested opinion, arrange to provide the requested information from another qualified examiner, with consideration of the August 2015 VA examination and opinion. The need for an in-person and/or telephonic interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, Associate 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.