Citation Nr: 21073229 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-24 629A DATE: December 7, 2021 REMANDED Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange, is remanded. Entitlement to service connection for prostate hypertrophy, include as due to Agent Orange and/or chemical exposure, is remanded. Entitlement to service connection for neoplasms of the thyroid, to include as due to Agent Orange and/or chemical exposure, is remanded. Entitlement to service connection for neoplasms of the kidney, to include as due to Agent Orange, chemical exposure and/or radiation, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to Agent Orange and/or as secondary a service-connected disability, to include posttraumatic stress disorder (PTSD), is remanded REASONS FOR REMAND The Veteran served on active duty from May 1966 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2014 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2019, the Board remanded the issues noted above, in addition to a claim for service connection for an acquired psychiatric disorder, to include PTSD, for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a May 2021 rating decision, the RO granted service connection for PTSD. As the Veteran has not appealed either the evaluation or effective date assigned to this disability, this matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Claims In the June 2019 remand, the Board noted that at his November 2018 Board hearing, the Veteran reported that he was exposed to Agent Orange while stationed in Okinawa. The Veteran noted that while in charge of the missile base, he had to walk through vegetation and foliage, to include near silos, which had been sprayed with Agent Orange. He also noted that he was exposed to firefighting foam while on the missile base. He stated that there would be mock-up fire explosions in which foam was sprayed around him. He stated that drills occurred on a monthly basis and that no protective gear was worn. He also stated that he was exposed to radiation as a Hawk Missile Technician. The issues on appeal were remanded, in part, so an attempt could be made by the RO to verify or confirm corroboration of herbicide exposure, the claimed exposure to chemicals, to include firefighter foam, and exposure to radiation during the Veteran's service in Okinawa, Japan. A review of the claims file shows a VA response regarding the Veteran's claimed exposure, dated in December 2019, directed to the U.S. Army and Joint Services Records Research Center (JSRRC) coordinator at the RO, which stated that the Department of Defense (DoD) had provided Compensation Service with a listing of locations outside Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored. The list did not contain names of individuals involved with Agent Orange. Additionally, there were no references to routine base maintenance activities such as range management, brush clearing, and weed killing. These were accomplished with commercial herbicides on all military bases worldwide. Commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i). Regarding the Veteran, DoD had not identified any location on the island of Okinawa where Agent Orange was used, tested, or stored. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations on Okinawa during those years and so there was no need for Agent Orange use there. Additionally, Okinawa was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi to South Vietnam via merchant ships. Therefore, Compensation Service could not provide evidence to support the claim. The Veteran submitted a correspondence in December 2019 which noted that he had served at the Kadena Air Force Base and missile sites 9, 10, 11, 12 and 13 from August 1, 1967 to October 1, 1967. It is also noted that the Veteran submitted articles regarding Agent Orange in support of his appeal. A report titled "Investigations into the Allegations of Herbicide Orange on Okinawa", dated in January 2013, has been associated with the Veteran's claims file. A November 2020 VA Formal Finding notes the inclusion of the article when determining that sufficient information required to verify the claimed. A VA memorandum, dated in March 2021, regarding Radiation Exposure shows that the VA had determined that the information required to corroborate radiation exposure described by the Veteran was insufficient to allow for meaningful research of the Defense Threat Reduction Agency (DTRA) records. Thus, exposure to herbicides, chemicals and/or radiation was not conceded. The Veteran was afforded VA examinations for the claimed disabilities on appeal in February 2020. For the Veteran's claimed diabetes mellitus, the VA examiner provided a positive nexus opinion and stated that the Veteran reported handling Agent Orange while in service and that type II diabetes mellitus was a presumptive condition recognized by the VA for service connection. For the Veteran's claimed erectile dysfunction, prostate hypertrophy, neoplasms of the thyroid, and neoplasms of the kidney disabilities, the VA examiner provided a negative nexus opinion and stated that stated that the Veteran reported handling Agent Orange and worked around radars which emitted radiation while in service. The VA examiner indicated a review of the Veteran's claims file which showed that the service treatment records were silent for complaints, diagnosis or treatment for the claimed disabilities. The VA examiner also noted that prostate hypertrophy, neoplasm of the thyroid and neoplasm of the kidney were not presumptive illness recognized by the VA for service connection due to Agent Orange or other herbicides during military service. On review of the medical literature, studies of people who may have been exposed to RF radiation at their jobs (such as people who work around or with radar equipment, those who service communication antennae, and radio operators) had found no clear increase in cancer risk. References to articles were included in the report. The Veteran was again afforded VA examinations for the claimed disabilities in August 2020. For the Veteran's claimed diabetes mellitus, the VA examiner provided a positive nexus opinion and stated that the Veteran had reported being stationed in Okinawa where he handled Agent Orange and that it was sprayed on the base. The VA examiner stated that it was now known that Agent Orange was indeed stored in Okinawa in the timeframe that the Veteran was stationed there. The VA examiner included references to articles were included in the report. For the Veteran's claimed erectile dysfunction disability, the VA examiner stated the disability was directly due to the Veteran's diabetes mellitus; therefore, his diabetes mellitus with erectile dysfunction was directly due to his Agent Orange exposure. Also, diabetes mellitus type II was well known to cause erectile dysfunction. The VA examiner also stated that the erectile disfunction was not related to a psychiatric disorder. For the Veteran's claimed prostate hypertrophy, neoplasms of the thyroid, and neoplasms of the kidney disabilities, the VA examiner provided a negative nexus opinion and stated that stated that the diagnosis of benign prostatic hyperplasia was not prostate cancer, and therefore is not related to Agent Orange exposure. Also, he had renal cell carcinoma and status post total nephrectomy which was not yet a recognized as an Agent Orange related condition. Subsequently, in the September 2021 Supplemental Statement of the Case, VA noted that the VA examiner's opinion and rationale regarding the claimed diabetes mellitus disability was unsubstantiated by the evidence of record and that a medical opinion may be discounted if it materially relies on a layperson's unsupported history as the premise for the opinion. It was noted that VA had been unable to concede the exposure to Agent Orange, chemical exposure and/or radiation, the VA examiner's opinion had been discounted. For the Veteran's claimed erectile dysfunction disability, it was noted that the Veteran is not service connected for diabetes mellitus, therefore the claim was denied. For the Veteran's claimed prostate hypertrophy, neoplasms of the thyroid, and neoplasms of the kidney disabilities, it was noted that the disabilities were not denied based on the August 2020 VA examiner's opinion. Here, the Board finds that another remand is needed to fully and fairly adjudicate the issues on appeal. The statements made by the VA examiner regarding Agent Orange raise questions on whether herbicides were, in fact, present and in use during the Veteran's service in Okinawa. As the current evidence of record is insufficient for the Board to make a determination as to this fact, the Board must remand this claim for further development. The Veteran provided the information requested of unit of assignment, the circumstances surrounding his exposure, and the date the claimed exposure occurred. The Agency of Original Jurisdiction (AOJ) offered no explanation for why this information was insufficient for a request for verification from the (former) JSRRC. Therefore, remand is necessary for the AOJ to consider the information provided by the Veteran, and if warranted, submit the matter of alleged exposure to Agent Orange on Okinawa to the appropriate facility for verification (and if the information remains deemed insufficient, advise the Veteran what specific additional information is necessary and afford him opportunity to submit it). If the Veteran's Agent Orange exposure is not conceded, the Board finds that new VA examinations should be afforded the Veteran. Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has held that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is to say, the Agent Orange presumption does not preclude a Veteran from establishing direct service connection. These examinations must rest on an accurate factual predicate, however, in regard to Agent Orange exposure. The matters are REMANDED for the following action: 1. Undertake all appropriate development procedures for verifying the Veteran's allegations of exposure to herbicides, chemicals, and radiation while serving on Okinawa, to include Kadena Air Force Base from August 1, 1967 to October 1, 1967. If exposure is not corroborated, the AOJ should prepare a formal finding that sufficient information required to verify the claimed exposures do not exist. 2. If, and only if, the Veteran's exposure to herbicides, chemicals, and radiation, cannot be established, schedule the Veteran for VA examinations for the current diabetes mellitus, prostate hypertrophy, neoplasms of the thyroid, neoplasms of the kidney, and erectile dysfunction disabilities. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. Significantly, in this instance, the examiner must be made aware that VA was unable to substantiate evidence of herbicide agent exposure in Okinawa, and attention must be directed to the aforementioned formal finding that herbicide agent exposure was not substantiated. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. For the diabetes mellitus, prostate hypertrophy, neoplasms of the thyroid, and neoplasms of the kidney disabilities, opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the currently diagnosed disability had its onset during, or was otherwise related to, the Veteran's active military service. The examiner must provide a comprehensive report, including complete rationales for all opinions and conclusions reached. For the claimed erectile dysfunction disability, the examiner is to provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the currently diagnosed erectile dysfunction had its onset during, or was otherwise related to, the Veteran's active military service. If not, the VA examiner should express an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any diagnosed erectile dysfunction condition was caused or aggravated by the service-connected PTSD (or, if service connection is found to be warranted for diabetes mellitus, to be found secondary to that disability). Aggravation is defined as a worsening beyond the natural progression of the disease or disability. The examiner must provide a comprehensive report, including complete rationales for all opinions and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.