Citation Nr: 21074628 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-18 638A DATE: December 15, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for coronary artery disease is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from March 1965 to March 1969 and from December 1990 to June 1991. He also served in the Air National Guard of the U.S. with periods of federalized active duty in the U.S. Air Force from February 2002 to August 2002 and from February 2003 to September 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for coronary artery disease (CAD) and service connection for prostate cancer. The Veteran's notice of disagreement (NOD) was received in October 2017. The RO issued the statement of the case (SOC) in December 2017, and the Veteran's VA Form 9, substantive appeal was received in December 2017. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In October 2019, the Board remanded the case for further development and adjudicative action. In a September 2020 decision, the Board denied the claims for service connection for prostate cancer and for coronary artery disease. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a July 2021 Court Order granting a Joint Motion for Remand (JMR) the Court vacated the Board's September 2020 decision, and remanded the case for further development in compliance with the directives specified in the JMR. In the JMR, the Court further directed the Board to determine whether, in the September 2020 Board decision, "VA had fulfilled the duty to assist in developing" the Veteran's theory of Agent Orange exposure while serving at Fort McClellan, Alabama, in August 1982. In this regard, the record reflects that the Veteran served in the Army National Guard of Maryland for the entirety of 1982, and his personnel records do not show that he had any periods of federalized active service in 1982, to include at Fort McClellan, Alabama. Rather, with regard to August 1982 in particular, the service personnel records show that he was credited with a total of 2 inactive duty points for service in the Army National Guard of Maryland in August 1982. As the Veteran is not shown to have federalized National Guard service in August 1982, VA did not fail to fulfil a duty to assist. In other words, VA has no duty to assist when there is no reasonable possibility of substantiating the claim. Here, developing his theory of Agent Orange exposure at Fort McClellan in 1982 would serve no useful purpose because the Veteran has no creditable service in 1982 for purposes of establishing service connection for any disease or injury incurred during that time period. 1. Entitlement to service connection for prostate cancer 2. Entitlement to service connection for coronary artery disease The Veteran contends that he has current disabilities of CAD and prostate cancer that are related to service. Specifically, he contends that each disease is related to exposure to numerous chemicals as a result of his military occupational specialty (MOS) of fuels technician, including (i) Jet Propellant 8 (JP-8), an aviation fuel containing the chemical benzene; (ii) carcinogens in the form of fuel system icing inhibitor (FSII) and corrosion inhibitor agents; and (iii) trichlorethylene used to clean oxygen carts. See May 2019 Board hearing transcript, p. 3. The Veteran has alternatively asserted that the CAD and prostate cancer are related to his service-connected hypertension (HTN); he has also asserted that his prostate cancer is due to Agent Orange exposure while training in the woods at Fort McClellan, Alabama in August 1982. See, e.g. Statement in Support of Claim dated January 2019. To comply with the directives set forth in the JMR, a remand is necessary to obtain adequate opinions addressing the Veteran's various theories of entitlement to service connection for both coronary artery disease and for prostate cancer. See, e.g. JMR dated July 2021; see also Remand Directives infra (ensuring compliance with the JMR directives by requesting opinions from qualified VA examiners, based on the language of the JMR, prior to adjudicating the issues on appeal). The JMR specifically pointed out that the Board did not adequately address whether the Veteran's service-connected hypertension caused or aggravates his coronary artery disease, particularly in light of the medical evidence submitted by the Veteran stating that, "hypertension is a major factor leading to CAD." Concerning the Veteran's prostate cancer, the record contains conflicting opinions. Specifically, in December 2019 a VA examiner opined that the prostate cancer is less likely than not related to service. The examiner cited the Veteran's smoking history, and noted that smoking is the "number one cause of . . . prostate cancer." In July 2021, the Veteran submitted a letter from his private urologist indicating that smoking is not the number one cause of prostate cancer. An additional opinion is necessary which addresses the discrepancy between the VA opinion and the private urologist's opinion. The record also contains a private opinion, initially received in December 2019, indicating that exposure to jet engine chemicals is a risk factor for developing prostate cancer. However, based on literature in the record from the American Cancer Society, there are many risk factors for developing prostate cancer, including smoking. The private opinion does not take this into account, and, it relies instead on literature comparing the reported health problems from people who ingested contaminated water at Camp Lejeune, and reported health problems from people who worked around those same chemicals. The literature does not provide any evidence of statistical significance and it does not discuss the Veteran's particular risk factors other than exposure to chemicals during service. Accordingly, a remand is necessary to obtain another medical opinion based on all of the evidence of record and based on all of the Veteran's various risk factors. The matters are REMANDED for the following action: 1. Obtain an opinion from a VA physician, a cardiologist, if possible, as to the current nature and likely etiology of the Veteran's coronary artery disease. If the examiner determines that an examination is necessary, schedule the Veteran for such examination. Specifically, the examiner should opine as to whether it is at least as likely as not (i.e. a 50 percent likelihood or greater) that the Veteran's coronary artery disease is either caused by, or aggravated (increased in severity) beyond natural progression by, his service-connected disability of hypertension. In providing such opinion, the examiner should address the June 2019 letter from the Veteran's private physician, Dr. K.S., M.D., indicating that "hypertension is a major factor leading to coronary artery disease." 2. Obtain an opinion from a VA physician, a urologist, if possible, as to the nature and etiology of the Veteran's prostate cancer. If the examiner determines that an examination is necessary, schedule the Veteran for such an examination. Specifically, the examiner should opine as to whether it is at least as likely as not (i.e. a 50 percent likelihood or greater) that the Veteran's prostate cancer is related to in-service exposures to (i) Jet Propellant 8 (JP-8), an aviation fuel containing the chemical benzene; (ii) carcinogens in the form of fuel system icing inhibitor (FSII) and corrosion inhibitor agents; and/or (iii) trichlorethylene. In providing such opinions, the examiner should address the relevant medical evidence in the record, to include the letters and attached literature from the Veteran's private urologist, Dr. A.W., M.D., as well as the American Cancer Society article entitled Prostate Cancer Risk Factors. The examiner should determine the Veteran's particular risk factors for developing prostate cancer, and analyze each of them. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.