Citation Nr: 21077556 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-30 638 DATE: December 30, 2021 ORDER Entitlement to service connection for prostate cancer is granted. REMANDED Entitlement to service connection for basal cell carcinoma is remanded. FINDING OF FACT 1. The evidence is in relative equipoise as to whether herbicide agents were used in Andersen Airforce Base, Guam. 2. The evidence is in relative equipoise as to whether the Veteran was exposed to herbicide agents while stationed at Andersen Airforce Base, Guam. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1963 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in October 2021. A transcript of the hearing is associated with the Veteran's claims folder. 1. Entitlement to service connection for prostate cancer. The Veteran asserts that he is entitled to service connection for prostate cancer as a result of exposure to herbicide agents while serving at Andersen Airforce Base, Guam from May 1966 to July 1968. There is no indication that he served in Vietnam or Korea, and therefore exposure to herbicide agents cannot be presumed in accordance with 38 C.F.R. § 3.307(a)(6). However, exposure can be shown on a facts-found basis. In January 2018 the RO submitted a request to the Defense Personnel Records Information Retrieval System (DPRIS) for information regarding the Veteran's possible exposure to herbicide agents in Guam. (1/12/2018, Correspondence, p. 1). In April 2018 DPRIS indicated that "after a review of the information, we were unable to document that [the Veteran] was exposed to Agent Orange or tactical herbicides during his tour of Andersen AFB." (4/3/2018, Correspondence, p. 1). While DPRIS was unable to confirm that the Veteran was exposed to herbicide agents in Guam, the Board notes that Andersen Airforce Base is a Superfund site, and that dioxins are one of the contaminants of concern at the site. (8/29/2017, Correspondence, p. 2); See Superfund Site: Andersen Air Force Base Yigo, GU, United States Environmental Protection Agency, https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.contams&id=0902825, last accessed on December 16, 2021. Given that the Environmental Protection Agency has confirmed a dioxin contamination at Andersen Airforce Base the Board finds that the evidence is at least in relative equipoise as to whether herbicide agents were used at the base. The Board will next turn its attention to whether the Veteran was exposed to herbicide agents while stationed in Guam. In support of his claim, the Veteran asserts that herbicide agents were sprayed along the flight line and around where the B52s were parked. (6/1/2015, VA 21-4138, p. 1). He claims to have walked through these areas on a daily basis to get to and from his work, which was along the base flight line. (7/2/2016, NOD, p. 3); (3/17/2015, Military Personnel Record, p. 10). In support of his claim, the Veteran submitted a study conducted by The National Veterans Legal Services Program (NVLSP) and the Jerome N. Frank Legal Services Organization of Yale Law School (LSO), which concluded that veterans who served in Guam from 1962 to 1975 were as likely as not exposed to herbicide agents. The study noted that Andersen Airforce Base is a Superfund site, which supported previous accounts from veteran's that herbicide agents were disposed of at dump sites on the base, which included landfills near the runways. The study additionally noted a 2002 Centers for Disease control health assessment which reported dioxin levels thousands of times above CDC's levels of concern near residential areas. (5/19/2021, Third Party Correspondence, p. 2, 7, 8, 9). Given the Veteran's lay report of walking through defoliated areas of the base, the high levels of dioxin contamination at Andersen Airforce Base, and the NVLSP and LSO study, the Board finds that the evidence is in relative equipoise as to whether he was exposed to herbicide agents while serving in Guam. The Board notes that the Veteran has a current diagnosis of prostate cancer, which is a disease associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). With respect to the requirement that the disability manifests to a degree of 10 percent disabling or more as set forth under 38 C.F.R. § 3.307(a)(6)(ii), the Board finds that the evidence is at least in equipoise on this point. In this regard, the Veteran's VA medical records indicate that he is being treated with enzalutamide. (8/17/2021, CAPRI, p. 4). See 38 C.F.R. § 4.120 Diagnostic Code 7913. In sum, after resolving all doubt in favor of the Veteran, the Board finds that the Veteran was exposed to herbicide agents while stationed in Guam. Accordingly, service connection is warranted for prostate cancer. REASONS FOR REMAND 1. Entitlement to service connection for basal cell carcinoma is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board cannot make a fully informed decision on the issue of entitlement to service connection for basal cell carcinoma because no VA examiner has opined on whether the disease was caused by exposure to herbicide agents, to include tactical and commercial herbicides. While basal cell carcinoma is not presumed to be causally related to herbicide agent exposure, service connection may still be demonstrated on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the Board finds that a remand for a medical opinion is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from July 2021 to the present. 2. Schedule the Veteran for a VA examination for basal cell carcinoma. The examiner must review the claims file and provide a response to the following: Is basal cell carcinoma at least as likely as not related to in-service exposure to herbicide agents, to include tactical and commercial herbicides? The examiner is advised that the Board has concluded that the Veteran was exposed to herbicide agents while serving in Guam. As such, the examiner should assume that the Veteran was exposed to herbicide agents in providing the requested opinion. Further, the examiner is advised that a negative opinion cannot be based solely on the fact that basal cell carcinoma is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.