Citation Nr: 21031216
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 17-05 388
DATE: May 20, 2021

REMANDED

Entitlement to service connection for prostate cancer is remanded.

Entitlement to service connection for diabetes mellitus type II is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the Army from December 1971 to December 1974.

This matter before the Board of Veterans' Appeals (Board) is on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota (Agency of Original Jurisdiction (AOJ)).

The Veteran testified at a video conference hearing before the undersigned in January 2020. A transcript of the proceeding is of record.

This matter was previously before the Board in April 2020. The Board remanded on these issues to seek an opinion from an environmental toxicologist regarding Agent Orange. A review of the file reflects that while an opinion on Agent Orange was obtained, the expert that provided it is an MD/MPH. Given the fact that the Board specifically designated the nature of the opinion needed, such an opinion needs to come directly from an environmental toxicologist and no other professional. The Board thus finds that the AOJ has not substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998) and for these reasons, the Board must remand once more. 

The matters are REMANDED for the following action:

1. The AOJ shall seek to obtain an opinion from an environmental toxicologist that addresses the following questions:

	Approximately how long would Agent Orange or its byproducts, including dioxin, remain in loose soil?

	In light of the above, opine whether is it at least as likely as not (50 percent probability or greater) that the Veteran was exposed to contaminants associated with Agent Orange via consumption of river water near the Korean DMZ during his tour of duty from October 1972 to November 1973  located at a site called Lexington Microwave approximately 10 miles from Camp Rice and close to the DMZ? If so, explain as best as scientifically possible the amount of residual Agent Orange or its byproducts that remained in the soil and/or river, and whether it is at least as likely as not that the amount of exposure by the Veteran was sufficient to cause prostate cancer and/or diabetes mellitus, type II. If the examiner cannot provide such an opinion without resort to speculation, please provide the reasons for such a determination. 

Please note the following evidence which is particularly pertinent to the claim:

	the Veteran's January 8, 2020 testimony regarding his duties and location as it relates to the Korean DMZ;

	photographs received on January 15, 2020;

	statement from the Veteran received on January 15, 2020;  

	articles submitted on January 15, 2020 which include discussion of Agent Orange and its half-life; and

	an April 17, 2020 Board remand. 

The claims file must be made available to and be reviewed by the examiner.

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.

2. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Victoria A. Banis, 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.