Citation Nr: 21009345 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-41 644 DATE: February 22, 2021 REMANDED Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is remanded. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1964 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and May 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in May 2019. A transcript of the hearing is of record. On September 14, 2020, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issues of service connection for prostate cancer, erectile dysfunction, and diabetes mellitus, type II, back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court’s remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated October 13, 2020, notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative did not submit any new evidence during this period. See Clark v. O’Rourke, 30 Vet. App. 92 (2018). The substance of the Court’s JMR will be discussed further in the remand section below. 1. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is remanded. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is remanded. 3. Entitlement to service connection for erectile dysfunction is remanded. The Veteran filed a claim for service connection for prostate cancer, erectile dysfunction, and diabetes mellitus, type II, in March and April of 2016. He asserted in a statement submitted with his claim that he had been present at a Thai Air Force Base in February 1968 with duty as a surveyor involved in the positioning of navigation aids around air bases, duties he asserts put him at the perimeter of that Thai base during the Vietnam conflict. On September 14, 2020, 2020, the CAVC issued a Joint Motion for Remand which vacated the July 2019 Board decision that denied entitlement to service connection for prostate cancer, erectile dysfunction, and diabetes mellitus, type II, and remanded to the Board for further consideration and development. No. 19-8142, 2020 U.S. App. Vet. Claims (Sept. 14, 2020) (unpublished). The Court called attention to two areas in its vacatur and remand. First, the Court noted that efforts were insufficient to obtain two sets of federal records that could contain evidence relevant to the Veteran’s theory of herbicide exposure. VA has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A (2012). This includes the duty to make “reasonable efforts to obtain relevant records (including private records)” as long as the claimant “adequately identifies” those records and authorizes VA to obtain them. 38 U.S.C. § 5103A(b)(1). See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009) (“VA is statutorily required to obtain all of the veteran’s relevant service medical records, not simply those which it can most conveniently locate.”) VA has a duty to search for records that would assist a Veteran in the development of his claim, and for which the Veteran has provided the Secretary information sufficient to locate such records, to include making as many requests as are necessary and ending only when such a search would become “futile.” In Gagne v. McDonald, the Court of Appeals for Veterans Claims (CAVC) defined futile, under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159, as “a search where it is apparent that the sought-after records are either not in existence or not in the possession of the record’s custodian.” 27 Vet. App. 397, 403 (2015). To trigger VA’s duty to assist a claimant with obtaining federal records to support a claim, a claimant need not “show that a particular record exists or that such a record would independently prove [their] claim.” Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019) The Court specifically referenced two types of records in its JMR. First, the Court noted the “pay records, morning reports, and temporary duty (TDY) orders for June, July, and August of 1968 from Headquarters Pacific GEEIA (Ground Electronics Engineering Installation Agency) that the Veteran contends would help him support either of his two theories of herbicide exposure. To ensure compliance with its remand, the Court directed a search for 1) the unit’s morning reports from June, July, and August 1968; 2) the Veteran’s military pay records from June, July, and August 1968; and 3) the Veteran’s TDY orders from June, July, and August 1968. Second, the Court called attention to the Board’s discussion of its reasons and bases in the use of the VA M21-1 manual to support the explanation of its negative determination of herbicide exposure, citing Overton v. Wilkie, 30 Vet. App. 257, 264 (2018) ([t]he Board is required to provide a reasoned explanation for why it finds the M21-1 an accurate guideline for its decision). The Court also found that the Board did not consider the Veteran’s personnel evaluations from November 1971 in terms of possible probative value in establishing the Veteran’s presence for the purposes of herbicide exposure. The Board thus finds that remand is necessary to seek the records noted by the Court, and for any other updated records that may prove helpful in substantiating the Veteran’s claim for service connection for his prostate cancer, erectile dysfunction, and diabetes mellitus, type II. The Board also notes that the Veteran has not received a VA medical examination for his claimed disabilities, and as such, will remand for that also. In McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA’s duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but “(A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability.” 38 C.F.R. § 3.159(c)(4)(i); Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003). The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. Pursuant to the Court’s joint motion for remand, a specific search for the “pay records, morning reports, and temporary duty (TDY) orders for June, July, and August of 1968 from Headquarters Pacific GEEIA (Ground Electronics Engineering Installation Agency)” is to be made. To ensure compliance with its remand, the Court directed a search for 1) the unit’s morning reports from June, July, and August 1968; 2) the Veteran’s military pay records from June, July, and August 1968; and 3) the Veteran’s TDY orders from June, July, and August 1968. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. All actions to obtain the records should be documented, and if any of the records cannot be sourced, a memorandum to that effect should be provided for the claims file. 2. After the record search is complete, and any new records are added to the claims file, obtain a VA examination from an appropriate and qualified VA medical professional to address the nature and etiology of the Veteran’s claimed prostate cancer, erectile dysfunction, and diabetes mellitus, type II. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran’s entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s prostate cancer, erectile dysfunction, and/or diabetes mellitus, type II is related to his active duty service, or are otherwise related to any in-service disease, event, or injury, to include the possibility of herbicide exposure. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.