Citation Nr: 21075464 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-08 978A DATE: December 20, 2021 REMANDED Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1966 to March 1970. These matters come before the Board of Veterans' Appeals (Board) from February 2015 and September 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. In a November 2018 decision, the Board denied, in part, entitlement to service connection for prostate cancer and non-Hodgkin's lymphoma, to include as due to herbicide exposure. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In September 2019, the Court issued an Order that vacated the portion of the November 2018 Board decision that denied entitlement to service connection for prostate cancer and non-Hodgkin's lymphoma, to include as due to herbicide exposure and remanded the matter for readjudication consistent with instructions outlined by the parties in a Joint Motion for Partial Remand (JMPR). Consistent with the terms of the JMPR, the Board remanded the Veteran's claim in February 2020 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its most recent remand. Therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure is remanded. 2. Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to herbicide exposure is remanded. As an initial matter, as the facts and analysis are the same for both of these claims, the Board will address them together for the purposes of brevity. The Veteran seeks service connection for his currently-diagnosed prostate cancer and non-Hodgkin's lymphoma. The Veteran asserts that he was exposed to herbicides when he flew into Quy Nhon, Vietnam on a volunteer flight expedition in 1968 while stationed in the Philippines. He provided a detailed description of this event and stated that there was a typed flight order describing the mission which did not make it into his personnel file. In addition to the general provisions regarding service connection, under 38 C.F.R. § 3.309(e), service connection may be awarded for specific diseases associated with exposure to herbicide agents. As relevant in this case, the listed diseases include non-Hodgkin's lymphoma and prostate cancer. Thus, if it is determined that the Veteran set foot in Vietnamand is thereby presumed to have been exposed to a herbicide agents during active military, naval, or air servicethese diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Pursuant to its February 2020 remand, the Board instructed the RO to attempt to verify the Veteran's contentions regarding the Veteran's alleged source of exposure to herbicides during a 1968 volunteer flight expedition to Quy Nhon, Vietnam. If the RO found there was insufficient information to verify exposure to herbicide agents, a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure was requested. In a March 2020 correspondence, the RO requested that the Veteran provide the dates, within 60 days, of when the volunteer mission to Vietnam occurred. The Veteran responded in March 2020 communication informing the VA that asserted in service exposure occurred between July and August 1968. However, January 2021 and August 2021 records research response memoranda contained in the file incorrectly note the alleged dates of exposure as being between October 1, 1968 and December 1, 1968. In addition, in a September 2021 Memorandum, the RO indicated that exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Memorandum also indicated in bold face type, "If unable to concede herbicide exposure, an additional signature of concurrence is required from a Records Research Specialist below." There were no signatures attached to the Memorandum. Therefore, review of the record reveals that this development was not accomplished in full. As such, remand is again required for compliance with the Board's prior remand directives. See Stegall, 11 Vet. App. at 268. Moreover, the February 2020 remand instructed that even if herbicide exposure was not conceded, the RO should provide the Veteran with a VA examination to determine whether his current currently diagnosed prostate cancer and/or non-Hodgkin's lymphoma are the result of active service under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (holding that, even if a claimant is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). However, the record does not include any indication that the RO scheduled the VA examination or that the Veteran declined his opportunity for a VA examination for his prostate cancer and non-Hodgkin's lymphoma. Therefore, the appeal was returned to the Board before the requested development related to the Veteran's claimed disabilities had been completed; thus, the RO did not substantially comply with the February 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, another remand is required to complete the requested development. Accordingly, the matters are REMANDED for the following action: 1. Take appropriate steps to attempt to verify such in-service exposure (noting the Veteran's assertion that he flew into Quy Non on one occasion occurring between July and August 1968). If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. All requests and responses received should be associated with the claims file. 2. If the Veteran's exposure to herbicide agents cannot be conceded, the Veteran should be scheduled for an examination by an appropriate clinician to determine the nature and etiology of his prostate cancer and non-Hodgkin's lymphoma. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. Thereafter, the examiner should provide a fully-articulated opinion addressing the following: (a) Whether the Veteran's claimed prostate cancer is at least as likely as not (50 percent or greater probability) to have begun in or is otherwise the result of military service, to include potential herbicide exposure. (b) Whether the Veteran's claimed non-Hodgkin's lymphoma is at least as likely as not (50 percent or greater probability) to have begun in or is otherwise the result of military service, to include potential herbicide exposure. If there is another likely etiology for the prostate cancer and/or the non-Hodgkin's lymphoma, the examiner should so state and provide a clear rationale. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.