Citation Nr: A21020394
Decision Date: 12/22/21	Archive Date: 12/22/21

DOCKET NO. 210405-150011
DATE: December 22, 2021

REMANDED

Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1966 to February 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In October 2018, the Court of Appeals for Veterans' Claims (CAVC) vacated the Board's November 2017 denial of this claim and remanded the claim to the Board for further development.  The Board, in April 2019, then remanded the Veteran's claim to the agency of original jurisdiction (AOJ).  A supplemental statement of the case (SSOC) was issued in April 2021.  Also in April 2021, the Veteran opted into the Appeal Modernization Act (AMA) review system and requested the direct review docket.  The Board finds remand is again required because the development directed in the April 2019 Board Remand was not accomplished, thus constituting a pre-decisional duty to assist error. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure

According to several service records and the Veteran's testimony, the Veteran's foreign service includes service at Andersen Air Force Base in Guam from March 1968 to September 1968, and at Kadena AB in Okinawa, Japan from March 1969 to September 1969. Furthermore, the Veteran provided competent and credible testimony that his squadron was routed to the Royal Thai Air Force Base (RTAFB) at U-Tapao due to Hurricane Cora in August 1969.   

In September 2014, the Joint Services Records Research Center (JSRRC) issued a finding indicating that the Veteran did not participate in the evacuation of Kadena AB in 1969.  However, the JSRRC did not specifically address the Veteran's contention that he was routed to U-Tapao because of the typhoon, and exposed to herbicides during his time there, regardless of whether he participated in the evacuation.  

The Board notes that the Veteran withdrew his request for continued JSRRC development after a two-year wait.  The Board also notes that the applicable Adjudication Procedural Manual (M21-1) development procedures apply to a relatively small collection of veterans.  Nonetheless, the Board finds that VA's pre-decisional duty to assist, as well as the Court's mandate in Stegall v. West, require the AOJ to carry out the April 2019 Board Remand order.  Specifically, the AOJ should conduct research into whether the facts warrant a finding that the Veteran was routed to U-Tapao RTAFB because of Hurricane Cora, and exposed to herbicides while there in 1969.  The AOJ should take every possible step to expedite this research.

 The matters are REMANDED for the following action:

Using every available means to expedite this process, attempt to verify the Veteran's asserted in-service exposure to herbicide agents, to include: on U-Tapao AFB after his rerouting there from Kadena AB during a bombing mission due to Hurricane Cora, as well as his contended exposure to herbicides while stationed at Andersen AFB, based on a January 2009 article from the U.S. Environmental Protection Agency and a November 2018 article from the Government Accountability Office, noting soil contamination with 2,4,D, and 2,4,5-T, two main ingredients in Agent Orange).  If more details are needed, contact the Veteran to request whatever information is necessary to investigate his claim.  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.

 

 

M. Pryce

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Z. Maskatia