Citation Nr: 21021033 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 19-18 214 DATE: April 9, 2021 REMANDED Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1963 to November 1966, to include service in Korea. He also had periods of reserve service. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. Because the development sought was not completed, a further remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for CLL, to include as due to exposure to herbicide agents, is remanded. 2. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is remanded. The Veteran contends that his CLL and prostate cancer were incurred in or caused by service, to include as due to exposure to herbicide agents. Specifically, he contends that he was exposed to herbicide agents while stationed in Korea during service, and while stationed at Fort Ord during service. In support of his claims, the Veteran has submitted copies of several prior Board decisions pertaining to other veterans, and he has also submitted military and medical articles on the use of herbicide agents and other chemicals in Korea and at Fort Ord. In its December 2020 remand, the Board addressed the prior Board decisions pertaining to other veterans and found that only a decision from February 2012 reasonably related to the Veteran’s claims. The Board also noted that the Veteran was afforded a VA examination in February 2018, but that the February 2012 Board decision, along with the articles on the use of chemicals at Fort Ord, were submitted subsequent to February 2018, and that the examiner was therefore unable consider them. In its December 2020 remand directives, the Board specifically instructed the February 2018 examiner (or another qualified examiner) to prepare a supplemental report and opinion, taking into consideration the articles on chemical use at Fort Ord and the analysis as set out in the February 2012 Board decision. In December 2020, the AOJ obtained an addendum opinion from a different examiner than the one who provided the opinion in February 2018. The examiner offered a negative nexus opinion. In support of his opinion, he first cited to a February 2015 opinion from J.L., M.D., Ph.D., one of the Veteran’s private treatment providers. In his February 2015 opinion, Dr. L. stated that it was “at least possible” that the Veteran’s exposure to chemicals at Fort Ord “may have” contributed to his CLL and prostate cancer. The December 2020 examiner stated that he assigned the opinion little weight as it was not supported by medical evidence, and further stated that from scientific literature documents, the precise pathogenesis of the Veteran’s condition was incompletely understood. He then described two types of medical opinions, stating that the first was based on credible authoritative literature search and review, and that in many conditions, the ‘at least as likely as not’ threshold could be achieved. He stated that the second type was generally for secondary gain, that in this situation a provider used language that was loosely worded and which did not meet the 51 percent threshold in most instances, and that this scenario applied to the Veteran’s case. He went on to reason that the National Academy of Medicine (NAM) had recognized 15 conditions as presumptive to exposure to herbicide agents at known locations, and that Fort Ord was not one of them. He opined that if there was a preponderance of evidence to link any illnesses to U.S. based locations, NAM would have already done so. The Board finds the December 2020 addendum opinion inadequate for several reasons. First, the Board did not instruct the examiner to consider Dr. L.’s February 2015 opinion in its December 2020 remand. The Board specifically found, rather, that Dr. L.’s opinion was too speculative for an award of service connection, inasmuch as he expressed his opinion in terms of possibility, rather than probability. More importantly, the December 2020 examiner did not address the question asked. His rationale focused solely on why presumptive service connection was not warranted, rather than addressing whether direct service connection was warranted. Additionally, the examiner appeared to confuse the evidentiary burden of “at least as likely as not” with that of “the preponderance of the evidence,” which the Veteran is not required to meet. Finally, it does not appear from review of the opinion that the December 2020 VA examiner considered either the articles on chemical use at Fort Ord or the analysis set out in the February 2012 Board decision submitted by the Veteran. The examiner certainly did not mention either piece of evidence in providing his opinion. Under the circumstances, a new opinion is required. See Stegall, supra; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board also notes that in February 2021, the Veteran submitted additional evidence in support of his claim, including an additional statement from Dr. L., three additional Board decisions pertaining to other veterans, and duplicates of three Board decisions which he had previously submitted. In a February 2021 opinion, Dr. L. again outlined the Veteran’s diagnoses and course of treatment and stated that he reviewed the Veteran’s service records along with articles on the use of chemicals at Fort Ord. He noted that the contamination of the drinking water and ground water was documented in the articles, and opined that it was at least as likely as not that the Veteran’s exposure to chemicals during his service at Fort Ord “may” have contributed to his B-cell malignancies. While clearly supportive of the Veteran’s claims, the Board finds that Dr. L.’s February 2021 opinion is too speculative for an award of service connection. Both his February 2015 and February 2021 opinions are expressed in terms of possibility, rather than probability. Regarding the Veterans’ February 2021 submission of six prior Board decisions pertaining to other veterans, the Board notes that the decisions are from January 2009, September 2010, August 2015, September 2018, November 2018, and November 2019. As noted by the Board in the December 2020 remand, prior Board decisions pertaining to one veteran are not precedential with respect to another. 38 C.F.R. § 20.1303. However, such decisions may be considered to the extent that they reasonably relate to the case, keeping in mind that each case presented to the Board will be decided on the basis of the individual facts in light of applicable procedural and substantive law. Id. The January 2009, September 2010, and September 2018 decisions were previously submitted by the Veteran, and in its December 2020 decision the Board found that those decisions did not reasonably relate to the Veteran’s claim. The Board again notes that the January 2009 prior Board decision relates to a veteran who was granted service connection based on exposure to chemical cleaning agents in service generally. While the veteran in that case served at Fort Ord, he also served and was exposed to chemicals at many other locations during service, and the award was not based on service in any particular location. The September 2010 decision also relates to a veteran who was granted service connection based on exposure to chemical cleaning agents in service generally, and service at Fort Ord is not mentioned in that decision. The September 2018 decision relates to a veteran who served in Vietnam. As such, the Board emphasizes again that these prior Board decisions do not reasonably relate to the Veteran’s case. By contrast, the August 2015, November 2018, and November 2019 decisions all relate to veterans who were granted service connection based on exposure to chemicals or toxins while serving at Fort Ord. As such, the Board finds that the analysis in the August 2015, November 2018, and November 2019 decisions (as well as the analysis in the previously submitted February 2012 Board decision) should be considered by the new examiner. These matters are REMANDED for the following action: 1. Arrange to provide the expanded record to an appropriate VA clinician other than the examiner who provided an addendum opinion in December 2020. The examiner should review the expanded record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s CLL and/or prostate cancer had their onset in, or are otherwise attributable to, service, to include as due to in-service exposure to herbicide or other chemical agents. In so doing, the examiner should consider the February 2018 VA examiner’s report and opinion and the articles on chemical use at Fort Ord which were submitted by the Veteran subsequent to the February 2018 opinion. The examiner should also consider the analysis set out in the February 2012, August 2015, November 2018, and November 2019 Board decisions of record, pertaining to other veterans. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.