Citation Nr: 21076212 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-44 645 DATE: December 22, 2021 REMANDED Entitlement to service connection for fibromyalgia, to include as due to exposure to toxic herbicide agents, is remanded. Entitlement to service connection for colon cancer, to include as due to exposure to toxic herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 to April 1978. She testified at an August 2021 videoconference hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran contends that she has fibromyalgia, manifested by severe chronic pain throughout her body, that is attributable to her exposure to toxic chemical agents while in service at Fort McClellan, Alabama. This includes her purported exposure to toxic herbicide agents. She seeks service connection for the condition based on this purported exposure. At the outset, the Board notes that the Agency of Original Jurisdiction (AOJ) denied this claim on the basis that the Veteran did not have a diagnosable condition manifested by chronic pain. While this may have been true at the time of those previous adjudications, that is, a July 2017 rating decision and August 2017 statement of the case, more contemporary VA medical records dating from 2019 and 2020 reflect that the Veteran has been diagnosed with fibromyalgia, thus satisfying the first criteria for a grant of service connection, that is, a currently diagnosed condition. The critical missing element to support a grant in this case is whether there is a nexus between the diagnosed fibromyalgia and service. To that end, the Veteran asserts that she was exposed to toxic chemical agents, to include toxic herbicides, while stationed at Fort McClellan, Alabama, during service in 1976 and 1977. As an aside, Veterans who served in the Republic of Vietnam are presumed to have been exposed to Agent Orange 38 C.F.R. § 3.307(a)(6)(iii). Veterans who were otherwise exposed to herbicide agents may also take advantage of those presumptive health effects. However, unlike Vietnam veterans, they are required to prove that they were, in fact, exposed to herbicides during their military service, as they do not have the benefit of a presumption of exposure as do Vietnam veterans. In support of her contentions, the Veteran has submitted numerous internet research articles suggesting that there is a correlation between the development of several chronic diseases and long-term habitation in the area immediately surrounding a former Monsanto chemical plant located in Anniston, Alabama, where Fort McClellan was also located. The Veteran also testified during the August 2021 hearing that she personally witnessed chemicals from the Monsanto chemical plant being stored in warehoused adjacent to Fort McClellan while she was stationed there. The Board acknowledges that current VA law and regulations do not recognize Fort McClellan as an area for exposure to toxic substances, including herbicide agents. This is despite the fact that VA has recognized veterans as having had such exposure outside Vietnam, to include in the Republic of Korea. 38 C.F.R. § 3.307(a)(6)(iv). VA has also recognized Air Force personnel who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(v). In addition, VA has presumed that certain diseases are the result of exposure to toxic substances in the water at Camp LeJeune, North Carolina. 38 C.F.R. § 3.307(a)(7). Nevertheless, the Board finds that the Veteran's testimony, coupled with the research evidence she has submitted in support of her claim, satisfies the very low threshold necessary to trigger VA's duty to engage in development in further support of her claim, to include obtaining an examination and opinion as to the likely etiology of the claimed fibromyalgia. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the AOJ should attempt to verify with an official records repository that the Veteran was potentially exposed to toxic chemical agents while stationed at Fort McClellan, Alabama, in 1976 and 1977, to include toxic herbicide agents. Thereafter, the Veteran should be afforded a VA examination with an opinion regarding the likely etiology of the claimed fibromyalgia. 2. Entitlement to service connection for colon cancer is remanded. The Veteran similarly contends that her colon cancer is attributable to her exposure to toxic chemical agents during service when she was stationed at Fort McClellan, and that service connection is warranted for the condition. Although the AOJ did acknowledge that the Veteran had a history of colon cancer, it nevertheless did not engage in any development in support of her colon cancer claim, to include affording the Veteran a VA examination. In light of the discussion above, the Board finds that the Veteran has satisfied the low evidentiary threshold for warranting a remand in order to engage in further development in support of her colon cancer claim. McLendon, supra. Therefore, following the development detailed above, the Veteran should also be afforded a VA examination with an opinion regarding the likely etiology of the claimed colon cancer. The matters are REMANDED for the following action: 1. Send the Veteran a notice letter notifying her that she can submit evidence in support of her contentions that she was exposed to toxic chemical agents during service while stationed at Fort McClellan, Alabama. Advise her that such evidence includes, but it not limited to, any military records; statements from service medical personnel; "buddy" certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian or private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; insurance examinations reports; and anything that may support the assertion of herbicide agent exposure and/or exposure to hazardous materials at Fort McClellan. To that end, the Veteran must also be advised that she should detail the circumstances of her purported exposure to hazardous materials at Fort McClellan, to include any information regarding her duties while stationed at Fort McClellan and the likelihood that those duties would result in potential exposure to hazardous materials. 2. Contact the National Personnel Records Center (NPRC), Military Records Research Center, or any other appropriate facility and attempt to obtain the Veteran's missing service treatment records. Furthermore, those same repositories should be contacted in order to attempt to verify the Veteran's claimed exposure to toxic herbicide agents and/or her purported exposure to hazardous materials while in service at Fort McClellan. In carrying out these instructions, the AOJ must ensure that it complies with the currently applicable provisions regarding the substantiation of claims of in-service exposures to hazardous materials. If unsuccessful, the reporting agency should acknowledge that the records sought do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of the records must be verified and should be documented for the record. 3. After engaging in the above development, schedule the Veteran for a VA examination by an appropriate clinician to assess the nature and likely etiology of the claimed fibromyalgia and colon cancer. The entire claims file should be provided to and reviewed by the examiner. All indicated testing and evaluations should be undertaken prior to setting forth any opinion. After thoroughly reviewing the claim file, the chosen examiner must consider whether it is it at least as likely as not (an approximate balance of positive and negative evidence) that the fibromyalgia and/or colon cancer had its onset during service or is otherwise attributable to service, to include as due to any exposure to toxic chemical agents while in service. The chosen examiner must consider and comment upon medical literature submitted by the Veteran in August 2021 suggesting a potential link between chemicals present at or near Fort McClellan and the development of a variety of medical conditions. It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. The Board notes the anatomical distinctions between the musculoskeletal and neurologic conditions listed above and recognizes that separate examinations may be necessary in this case. However, the Board leaves this to the discretion of the RO and/or the examining medical facility. In addition, 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. To the extent that telehealth technology permits an alternative to an in-person examination, such opportunity is fully acceptable in lieu of an in-person examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.