Citation Nr: 21030127 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-53 360 DATE: May 17, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2015 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In July 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In November 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to service connection for prostate cancer is remanded. 2. Entitlement to service connection for a skin disability is remanded. VA regulations provide that a veteran who had active service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicide agents unless there is affirmative evidence to establish that the Veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are presumed associated with herbicide agent exposure. The list of those diseases includes prostate cancer, ischemic heart disease, diabetes mellitus, and non-Hodgkin's lymphoma. 38 C.F.R. § 3.309(e). If a Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide agent-related disease under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in those instances. However, once exposure to herbicide agents has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide agent-related diseases is applicable. The finding that a disease is not a disease for which presumptive service connection based on exposure to herbicide agents is warranted does not preclude the Veteran from pursuing a claim for service connection to be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran contends that he developed prostate cancer and a skin disability as a result of herbicide agent exposure while in active service. Correspondence received in July 2019 indicates that herbicide agent testing was conducted at Fort Gordon from December 1966 to October 1967. The Veteran's service personnel records indicate that he was stationed at Fort Gordon during active service. The Veteran asserts that the herbicide agent testing occurred in the fields where he worked. As a result, it is his assertion that the claimed disabilities developed as a result of that exposure. A November 2019 Board remand requested an attempt to verify any herbicide agent exposure of the Veteran for the relevant time periods during service with the Joint Services Records Research Center or the appropriate service department agency. In December 2019 correspondence, a VA entity stated that Department of Defense (DoD) documents showed that Agent Orange testing occurred at a remote forested location of three acres at Fort Gordon, Georgia, during July 1967 to October 1967. That was not near any military base personnel and testing was conducted by civilians under the direction of Fort Detrick personnel. There was no other use, testing, or storage of Agent Orange at Fort Gordon. As to possible exposure in Germany, the DoD provided the Compensation Service with a listing of locations outside Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored. The list does not contain names of individuals involved with Agent Orange. Additionally, there are no references to routine base maintenance activities such as range management, brush clearing, and weed killing. Those were accomplished with commercial herbicides on all military bases worldwide. Commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i). Since the December 2019 correspondence from VA Central Office the Veteran has submitted additional information that may assist in determining if the Veteran was exposed to herbicide agents while in service. Consequently, in light of the evidence and arguments of record, the Board finds that additional development is necessary prior to adjudication of the claim. An opinion, report, or other evidence from the appropriate records depositories is needed to address the issue of whether the Veteran was exposed to herbicide agents during active service. The Board notes that, as the record currently stands, it is unclear, at best, that the Veteran has a diagnosed current, chronic skin disability. However, because the evidence does contain some notations of skin tags, crusted papules, and rashes, the Board finds that a VA opinion to diagnose and determine any relationship between any claimed skin disability and service should be scheduled. 3. Entitlement to service connection for a respiratory disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a respiratory disability. Medical records show that the Veteran is currently diagnosed with chronic obstructive pulmonary disease (COPD). The Veteran contends that the diagnosed respiratory disability is due to herbicide agent exposure. In the alternative, the Veteran asserts that COPD is due to carbon monoxide exposure in service or a chest injury sustained in service. The Veteran has not been provided a VA examination which addresses any etiological relationship between any respiratory disability and service. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Because the claimed disability may have been caused by service, the Board finds that a VA opinion to determine any relationship between the claimed disability and service should be scheduled. V A should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences or failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Joint Services Records Research Center (JSRRC) or, if necessary, the Defense Personnel Records Information Retrieval System (DPRIS) or another appropriate Federal department, make a determination as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran was exposed to herbicide agents during active service. Any research must not only include the Veteran's individual personnel record, but also an analysis of any operations and deployments of his unit. Specifically, the researcher must consider the Veteran's Military Occupational Specialty and location at Fort Gordon while serving in the 12th Engineer Battalion, and the evidence submitted regarding the use of herbicide agents at Fort Gordon. The relevant time periods include December 1966 through October 1967. The researcher should also consider the Veteran's service in Germany as it pertains to herbicide agent exposure. A copy of any requests sent to the JSRRC or other appropriate entity, and any reply, to include any negative reply, should be associated with the claims file. If the event is not verified, an official determination so indicating should be entered into the record. 2. If any requested Federal records cannot be obtained, document in a memorandum of unavailability to the file the attempts that were made to obtain them and explain why additional attempts to obtain the records would be futile. Provide to the Veteran and representative a written notification of the specific records that could not be obtained, explaining the efforts VA has made to obtain this evidence, and describing any further action VA will take to develop the claim. The Veteran and representative should be allowed an opportunity to respond. 3. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 4. Then, schedule the Veteran for a VA examination to diagnose and determine the nature and etiology of any skin disability. The examiner must review the claims file, including this Remand, in its entirety and should note that review in the report. The examiner should address the Veteran's lay statements, to include hearing testimony, regarding the claimed skin disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner is asked to diagnose any skin disabilities that occurred during the pendency of this appeal. If a skin disability is diagnosed, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed skin disability is etiologically related to active service or any event, disease, or injury during service, including whether any skin disability (1) began during active service, (2) manifested within one year after separation from service, (3) was noted during service with continuity of the same symptomatology since service, (4) was caused by any service-connected disability or treatment for any service-connected disability, or (5) was aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability. (6) If the Veteran is found to have been exposed to herbicide agents, asbestos, or any other environmental or chemical hazard while in-service, the examiner should opine whether any skin disability is at least as likely as not (50 percent or greater probability) due to the in-service exposure. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The fact that a claimed disability is not on the list of diseases presumed service connected for Veterans exposed should not be the basis for a negative opinion. 5. Schedule the Veteran for a VA examination to diagnose and determine the nature and etiology of any respiratory disability. The examiner must review the claims file, including this Remand, in its entirety and should note that review in the report. The examiner should address the Veteran's lay statements, to include hearing testimony, regarding the claimed respiratory disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The Board notes that a current diagnosis of chronic obstructive pulmonary disease has been conceded by VA. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed respiratory disability, to specifically include COPD, is etiologically related to active service or any event, disease, or injury during service, including whether any respiratory disability (1) began during active service, or (2) was noted during service with continuity of the same symptomatology since service. (3) The examiner must discuss the significance of the Veteran's in-service chest injury and any carbon monoxide exposure in service in relation to current respiratory disabilities. If the Veteran is found to have been exposed to herbicide agents, asbestos, or any other environmental or chemical hazard while in-service, the examiner should opine whether any respiratory disability is at least as likely as not (50 percent or greater probability) due to the exposure in service. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The fact that a claimed disability is not on the list of diseases presumed service-connected for Veterans exposed should not be the basis for a negative opinion. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.