Citation Nr: 21025285 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-24 603A DATE: April 27, 2021 REMANDED Entitlement to service connection for hypogonadism (claimed as testicular issues), to include as due to Agent Orange exposure or as a residual of medication prescribed by VA under 38 U.S.C. § 1151, is remanded. Entitlement to service connection for gynecomastia (claimed as breast enlargement), to include as due to Agent Orange exposure or as a residual of medication prescribed by VA under 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1969 to September 1978, with additional inactive service thereafter. In March 2019, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. This appeal was initially before the Board in August 2019, where a claim for a higher rating for the left knee disability was denied, and the claims for service connection for hypogonadism and gynecomastia were remanded for further development. However, although the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran’s appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. The Board finds that all of the 2019 directives were not substantially complied with, so the Board must again remand the matters. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, additional development is necessary to conduct a search for records and information and for addendum opinions. First, the Board requested the Veteran’s list of assignments/duty stations or for the RO to otherwise take appropriate action to confirm his service in Vietnam. The Veteran submitted a letter with travel and overseas duty history in December 2019, but the RO did not develop this information, nor was a request made for his duty stations. Further, the RO proceeded to deny that the Veteran served in Vietnam and did not concede that he had exposure to herbicide agents. The Board finds this conclusion was potentially erroneous. The Veteran submitted records that he was stationed in Taiwan from February 1970 to May 1971, and stated he was sent to Vietnam TDY with the 6217th CBSPT Grp. The Veteran’s service medical records explicitly indicate that in December 1970, he was seen by sick call at Tan Son Nhut Air Base in Vietnam, which supports his assertions of a TDY assignment. He was then on a temporary duty assignment (TDY) in Thailand from June to December 1972 and then served in Korea from January 1975 to January 1976. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. See 38 U.S.C. § 5103A. The Veteran contends that the claimed disabilities should be service connected on a presumptive basis (as to due exposure to herbicide agents) and asserts that he was exposed to various chemicals/compounds used as herbicides while he was stationed in Korea, Thailand, and Vietnam. As noted in the previous remand, the Board instructed the RO to take action to confirm this service, and they failed to do so. Therefore, upon remand, the RO must contact the appropriate service department agency and the Joint Services Records and Research Center (JSRRC) to request development to verify the Veteran’s allegations of exposure during his service in Korea, Thailand, and Vietnam to Agent Orange (and chemicals/compounds listed in 38 C.F.R. § 3.307 (a)(6)) in his assignment as field maintenance and ground equipment and gasoline engine repairman. It must be noted he was also part of Palace Dog and assigned a TDY for 179 days in Thailand, as clearly noted in the travel request he submitted in December 2019. Second, the Board finds that the 2019 VA examination is not entirely probative but is more conclusory. For example, the examiner’s opinions that these conditions are not related to service was that “there is no known association between Agent Orange exposure” and these disabilities; but simply stating a condition is not on the list of those presumptively associated with herbicide agents is not a sufficient rationale for a negative opinion. Rather the opinion must specifically consider the Veteran’s medical history and risk factors. However, the examiner relied on the fact the claimed conditions are not presumptively associated with herbicide agent exposures. As the neither of the opinions provided a rationale or discussion as requested, the examiner’s opinions are not fully adequate as to the opinion related to herbicide agent exposure to allow for just adjudication of these claims. Third, the Board acknowledges the 2019 examiner’s opinion that it is not likely the Veteran’s hypogonadism and gynecomastia are due to the carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in prescribing the Androderm patches medication. However, part of the rationale was that the disabilities had preceded the medication being prescribed (though the notation in June 2001 indicated that the workup for gynecomastia in 1997 was negative) and that there is no evidence of failure on the part of VA to timely diagnose or treat the Veteran. The Board notes that the 2019 remand did provide an extensive overview of possible evidence in the record, none of which was discussed or considered by the examiner. Further, the examiner herself stated in her opinion that “he is been on numerous medications including some that have been associated with gynecomastia” and that “Androderm is a replacement for testosterone which is low in the diagnosis of hypogonadism” (emphasis added). Although she does not state which medications are associated with gynecomastia, and she stated Androderm has a low association with hypogonadism, these statements indicate there may be an association nonetheless and must be discussed. Therefore, an addendum opinion is required on remand. Finally, as part of the 2019 examiner’s opinion, she stated the Veteran had been diagnosed with gynecomastia in 1997 (see above contradictory notation), but records of this mammogram are not in the file. It appears some medical records from the 1990s are in the file, but those records pertain to his left knee disability and the earliest records from the Wilmington VAMC begin in October 1998. A request and search for these records must be attempted on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all paper records from the Wilmington VAMC prior to October 1998. Searches must be made of archived/retired paper records with documentation of negative responses. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). ** If the 1997 mammogram discussed by the VA examiner was performed at a private facility, the Veteran should notify the RO of this fact and complete a release authorizing VA to request this record. In the alternative, he can submit the report to VA himself. 2. The RO should send the December 2019 statements, along with the other statements made by the Veteran, to the National Personnel Records Center (NPRC), if appropriate, and the US Joint Service Records and Research Center (JSRRC), for any documents that would assist in determining whether the 6217th CBSPT Grp. was present at Tan Son Nhut Air Base in Vietnam in approximately December 1970, on TDY from Ching Chuan Kang Air Force Base in Taiwan. Any supplied and/or obtained evidence should be included in the electronic claims file for future review. 3. Then, the RO should follow development procedures for verifying alleged herbicide exposure during the Veteran’s tours in Thailand and Korea. 4. DO NOT SCHEDULE THE FOLLOWING until the above records have been obtained, to the extent possible. 5. Then, if and only if exposure to herbicide agents is conceded, obtain a new medical opinion regarding the etiology of the Veteran’s gynecomastia and hypogonadism. The entire claims file, including this remand, must be provided and reviewed. Then, the examiner should opine on the following: (a.) Whether it is as at least as likely as not that the Veteran’s hypogonadism is related to his active service, to include in-service herbicide exposure. The examiner is advised that the absence of hypogonadism from the list of conditions which are presumed to be the result of exposure to herbicides in Vietnam is not, by itself, a sufficient explanation for a negative opinion. The examiner must specifically address the relationship between Agent Orange exposure and hypogonadism. (b.) Whether it is as at least as likely as not that the Veteran’s gynecomastia is related to his active service, to include in-service herbicide exposure. The examiner is advised that the absence of gynecomastia from the list of conditions which are presumed to be the result of exposure to herbicides in Vietnam is not, by itself, a sufficient explanation for a negative opinion. The examiner must specifically address the relationship between Agent Orange exposure and gynecomastia. The examiner must explain the rationale for all opinions. The examiner should discuss the pertinent supporting clinical data and medical/scientific data upon which the opinion is based. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge in general or, there is evidence that, if obtained, would permit the opinion to be provided. 6. Regardless if herbicide exposure is conceded, request a VA medical opinion under 38 U.S.C. § 1151. The examiner must review the complete claims file, including this remand. Then, the examiner must address the following, with full supporting rationales: (a.) Whether it is at least as likely as not the Veteran’s hypogonadism and/or gynecomastia are a result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA related to medication prescribed by VA of Androderm patches. (The examiner should explicitly state whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in prescribing the medical patches). (b.) Whether it is as likely as not the Veteran’s hypogonadism and/or gynecomastia were aggravated by medication under 38 U.S.C. § 1151. (c.) Whether it is at least as likely as not (50 percent probability or greater) that such is a result of an event not reasonably foreseeable? Following a review of the record, the examiner should specifically address the following: • the Veteran’s theory that, due to the use of the above prescribed medication, such resulted in his diagnosis of hypogonadism and gynecomastia, and then lowered his dosage due to side effects; • June 2001 medical notation that “early gynecomastia workup in 1997 was negative”; • February 2008, he had his testosterone levels checked and he was prescribed the Androderm patches; • January 2012 VA pharmacy department showing a new Androderm patch was being prescribed that was a lower dosage of testosterone but that he should continue to use the old patches if he had any remaining; • The January 2012 prescription side effects warning included possible side effects of change in sex drive, fatigue, breast growth, change in the size or shape of the testicles, and urination problems; and • The October 2015 letter from the Veteran stating he had been told by Dr. G. to stop taking his prescription of the Androderm that had been prescribed to the Veteran at the NJ VAMC, due to the effects of the higher dosage. A full rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.