Citation Nr: 21010842 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-06 010 DATE: February 25, 2021 REMANDED Entitlement to service connection for prostate cancer as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2018, the Board remanded the issue on appeal for additional development and, in December 2019, denied service connection for prostate cancer. The Veteran appealed the December 2019 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2020 Joint Motion for Remand (JMR), the Court vacated the December 2019 Board decision and remanded it to the Board for further appellate consideration. Entitlement to service connection for prostate cancer as due to exposure to herbicide agents. In the October 2020 JMR, the parties found the Board provided an inadequate statement of reasons or bases for its December 2019 decision. Specifically, the parties agreed the Board failed to address whether there was substantial compliance with the Board’s July 2018 remand. In this regard, such directives ordered development pursuant to the Veterans Benefits Administration Adjudication Procedure Manual, IV.ii.1.H.7.a. According to such, the Agency of Original Jurisdiction (AOJ) was to send an e-mail with the dates, location, and circumstances of claimed herbicide exposure to Compensation Service and request a review of the Department of Defense’s inventory of herbicide operations. The record includes a copy of such e-mail and shows that, in March 2019, the Compensation Service advised that it was unable to provide any evidence in support of the claim. Therein, Compensation Service reported that the Department of Defense information shows that testing for Agent Orange aircraft spraying techniques was conducted at testing site C-52A at Eglin Air Force Base (AFB) from 1962 to 1971. for exposure to be considered, a veteran would need to provide evidence of working at, or being associated with, the test site C-52A during the actual testing. Thus, as the Veteran had not reported for duty on Eglin AFB until two years after termination of Agent Orange testing, VA could not acknowledge Agent Orange exposure. In the event that Compensation Service was unable to confirm the Veteran’s exposure, the Board remand directed that the AOJ submit the relevant information to the Joint Services Records Research Center (JSRRC) to determine whether such exposure could be verified. In this regard, the Board instructed that the AOJ submit multiple requests, as necessary, to the JSRRC covering the relevant time window (in this case, from February 1973 to August 1975) in 60-day increments. The Board further directed that all a summary of the findings should be provided in a memorandum and, if such verification was not possible, such should be so certified. Pursuant to the July 2018 remand, the record shows the AOJ submitted a single request to the JSRRC identifying one 60-day period that spanned from February 1973 to March 1973, and a response received in June 2019 indicates the JSRRC was unable to locate the “1973 unit records” submitted by the 1st Battalion, 29th Infantry. Due to the lack of unit records available, the JSRRC was unable to document the Veteran’s exposure to Agent Orange or other tactical herbicides while training at Eglin Air Force Base. Notably, the record does not show the AOJ submitted the necessary multiple requests to the JSRRC to cover the entire period relevant to the Veteran’s service, or included a memorandum of a summary of the findings and certification that verification was not possible. Consequently, the Board finds there has not been substantial compliance with the prior Board remand directives, and a remand is warranted so as to ensure such compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board observes that, since the October 2020 JMR, the Veteran has submitted additional evidence in support of his claim, to include a November 2020 lay statement from a fellow service-member, M.G. Therein, M.G. stated that the areas of operation of their “C” Company Rangers at Eglin Air Force Base included training site areas C-52 and C-52A. In this regard, as noted above, Compensation Service reports that a veteran would need to provide evidence of working at, or being associated with, the test site C-52A at Eglin AFB for consideration of exposure. However, Compensation Service specifically required that such exposure occur during the actual testing (emphasis added), which would exclude the Veteran’s period of service. Furthermore, although the Veteran submitted a favorable opinion from Dr. N.R. in December 2020 in which he opined that it is at least as likely as not that the Veteran’s prostate cancer is related to his exposure to herbicide/Agent Orange residuals at Eglin AFB, the rationale reflects that such opinion was based on a finding that the Veteran had “extensive exposure to Agent Orange,” which has yet to be confirmed. Moreover, the Board must highlight that the Veteran’s specific assertions in this case rely on his exposure to residuals of herbicide agents as the VA has acknowledged the use of herbicides on various parts of Eglin AFB, to include training site areas C-52 and C-52A, for specified time periods in 1952, 1953, and, as above, from 1962 to 1971. In this respect, the Board recognizes the intricacies of such contentions and the multiple pieces of evidence in support thereof and notes that, even if service connection may not be awarded on a presumptive basis, the Veteran may still prevail via evidence supporting a favorable nexus to service. As a result, the Board finds a medical opinion would be useful in the instant case to determine whether the Veteran’s prostate cancer is related to any in-service exposure to residuals of herbicide agents. Thus, such opinion should be obtained on remand. The matter is REMANDED for the following actions: 1. Submit as many requests as necessary to JSRRC to ascertain whether the Veteran was exposed to herbicide agents while training at Eglin AFB from February 1973 to August 1975. All requests and responses received should be associated with the record and a summary of the findings should be provided in a memorandum associated with the record. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted). 2. If the Veteran’s exposure to herbicide agents has not been verified, forward his file, to include a copy of this remand, to an appropriate clinician for a medical opinion addressing the nature and etiology of his prostate cancer. After a review of the evidence, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s prostate cancer is related to his reported exposure to residuals of herbicide agents while performing duties at training site areas C-52 and C-52A at Eglin AFB from February 1973 to August 1975. In providing such opinion, the clinician should consider the medical literature, lay statements, and opinions submitted by the Veteran in support of his appeal. He or she is also advised that VA has acknowledged the use of herbicides on various parts of Eglin AFB, to include training site areas C-52 and C-52A, for specified time periods in 1952, 1953, and 1962 to 1971. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.