Citation Nr: 21072694 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-06 169A DATE: December 6, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to an increased rating for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1972 to January 1976, including service in Korea. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript is of record. 1. Entitlement to service connection for prostate cancer, to include as due to herbicide agents, is remanded. The Veteran contends that his prostate cancer, diagnosed in June 2015, is due to exposure to an herbicide agent in service along the Korean Demilitarized Zone (DMZ). The Board cannot make a fully informed decision on the issue of entitlement to service connection for prostate cancer due to herbicide agents yet. The Veteran's service in Korea occurred between January 1975 and December 1975, years after the dates for presumptive herbicide agent exposure enumerated in 38 C.F.R. § 3.307(a)(6)(iv) [between April 1, 1968, and August 31, 1971]. In addition, based on information provided by the Veteran and review of the Veteran's personnel records, the Joint Services Records Research Center (JSRRC) issued a formal finding in April 2016 concerning herbicide agent exposure, finding that the information required to verify exposure to tactical herbicide agents, such as Agent Orange (AO) during military service is insufficient to concede that the Veteran was exposed. Therefore, the Veteran cannot be found to have been exposed to herbicide agents on a presumptive basis. However, exposure to herbicide agents may still be conceded on a facts-found basis The Veteran's service personnel records include a January 1976 Officer Evaluation Report which indicates that from September 1975 to December 1975, the Veteran served as an executive officer for a HAWK battery located on the Korean DMZ. The Veteran's unit organization was noted as 'Battery D, 2nd Battalion, 71st ADA.' The Board observes that this unit is not identified by the Department of Defense as operating in the Korean DMZ during the prior qualifying time period of September 1, 1967, to August 31, 1971. In a February 2016 letter, J.H., who identified himself as the Veteran's former lieutenant, indicated the Veteran served as the Battery Executive Officer for the Headquarters and Headquarters Battery, 2nd Battalion, 71st Air Defense Artillery stationed at Camp Red Cloud, South Korea in 1975. J.H. indicated that during the duty assignment the Veteran's assignment included a one week on/one week off rotation at a site within view of the DMZ. In addition, in an August 2016 correspondence, the Veteran argued that he served in and around the DMZ "well within the time frame and location for exposure to AO and possibly other herbicidal defoliants." The Veteran also submitted a news article reporting that records from the US Department of the Army document the use of herbicide agents, including AO, along the Korean DMZ during 1968 and 1969. In the August 2016 correspondence, the Veteran also provided a copy of a prior Board decision involving the appeal of a different veteran who, in that case, both referenced and provided a copy of a December 1998 study by the Agency for Toxic Substances and Disease Registry, which is part of the Public Health Service of the U.S. Department of Health and Human Services (HHS). This study purportedly found that the half-life of dioxins (like those found in herbicide agents) on the surface is 9 to 25 years and on the sub-surface is 25 to 100 years. Prior Board decisions in case of another veteran are not precedential and, as such, are not binding on the Board. Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. See 38 C.F.R. § 20.1303. The Veteran, in this case, did not provide a copy of the HHS study in question. However, because he specifically highlighted the study in his written argument, in an effort to establish his exposure to herbicide agents during service in Korea, the Board will undertake additional development regarding this contention. A medical opinion is needed to address the Veteran's assertion of exposure to herbicide agents while he reportedly served along or near the Korean DMZ in 1975, due to the half-life of dioxins (like those found in herbicide agents) which may have been present there, in light of the above-referenced HHS study. 2. Entitlement to an increased rating for left lower extremity radiculopathy is remanded. In his testimony at the June 2021 videoconference hearing, the Veteran asserted that his service-connected left lower extremity radiculopathy has increased in severity since he was last examined by VA in October 2017. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected left lower extremity radiculopathy disability. Updated VA treatment records should be obtained as well. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2021 to the present. 2. Obtain a nexus opinion from an appropriate clinician regarding the etiology of the Veteran's prostate cancer. The need for an in-person examination is left to the examiner's discretion. The examiner must review the pertinent evidence in the claims file, as well as a copy of remand and, if possible, the December 1998 HHS study referenced by the Veteran and cited in the text above. The Veteran asserts he was exposed to herbicide agents during his service along or near the Korean DMZ in 1975 because of the known half-life of dioxins (like those found in herbicide agents) on the surface and sub-surface of land. The 1998 HHS study should be reviewed specifically for the premise that the half-life of dioxins (like those found in herbicide agents) on the surface is 9 to 25 years and on the sub-surface is 25 to 100 years and that such would have resulted in the Veteran's exposure to herbicide agents in 1975. In doing so the examiner is advised that the Veteran's personnel records indicated he served as an executive officer for a HAWK battery 'located on the Korean DMZ' from September 1975 to December 1975. The examiner is then asked to provide a response to the following: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran was exposed to herbicide agents during his service along or near the Korean DMZ from September 1975 to December 1975 in the manner in which he has asserted. A complete rationale for the opinion must be provided. If the requested opinion cannot be provided without resorting to speculation, then the clinician must explain why this is so. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Caban, 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.