Citation Nr: A21020487 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 211213-204341 DATE: December 23, 2021 REMANDED Service connection for chronic pancreatitis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This rating decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) in December 2021, appealing the aforementioned rating decision to the Board and electing the Direct Review option. When a claimant seeks appellate review through the Board's Direct Review docket, the Board only may consider the evidence of record at the time of the rating decision on appeal. See 38 U.S.C. § 7113(a). By selecting this option, the Veteran has opted for a closed evidentiary record. Moreover, the Board is bound by favorable findings in the rating decision on appeal. See 38 C.F.R. § § 3.104(c). Therefore, because the Veteran elected the direct review option, and, in accordance with the modernized review system, the Board can consider only the evidence of record at the time of the June 2021 rating decision. The Board finds that remand is necessary to correct a pre-decisional duty to assist error in failing to obtain a VA examination. The Veteran seeks service connection for chronic pancreatitis, which he contends is due to his conceded herbicide agent exposure during service. His VA treatment records reflect treatment for chronic pancreatitis both during and prior to the appeal period. In April 2021, the Veteran submitted a November 2019 statement from a VA provider indicating that the cause of his chronic pancreatitis is unknown, as he does not have the typical risk factors, but it could be related to his in-service herbicide agent exposure. He has not yet been afforded a VA examination assessing the nature and etiology of his chronic pancreatitis. Under McLendon v. Nicholson, VA must provide a VA examination where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the above contention, and given the November 2019 statement by the gastroenterologist indicating a possible relationship between the Veteran's chronic pancreatitis and herbicide agent exposure, the Board finds that the Veteran should have been afforded a VA examination to determine the nature and etiology of this condition. Accordingly, the Board finds that the RO's failure to obtain a VA examination constitutes a pre-decisional duty to assist error, and remand is necessary. This matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his chronic pancreatitis. The examiner should review the complete claims file, particularly including the November 2019 statement from Dr. A.C. indicating herbicide agent exposure as a possible cause of his chronic pancreatitis. After complete review of the claims file, the examiner should respond to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's chronic pancreatitis is related to service, to include as due to conceded herbicide agent exposure? The examiner is advised that it is insufficient to rely on the fact that chronic pancreatitis is not included on the list of diseases associated with exposure to herbicide agents. All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.