Citation Nr: 23014358 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 20-28 407 DATE: March 9, 2023 REMANDED Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for chronic lymphocytic leukemia, to include as due to exposure to herbicide agents and/or contaminated water at Camp Lejeune, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to December 1967. Evidence affiliated with the claims file reflects that the Veteran also served in the Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board initially denied this matter in a December 2020 decision, which the Veteran timely appealed to the United States Court of Appeals for Veterans Claims (Court). By way of a May 2022 Order, the Court granted the parties' Joint Motion for Remand (JMR). The case has since returned to the Board. 1. Prostate Cancer 2. Chronic Lymphocytic Leukemia The parties agreed in the JMR that the Board erred in the December 2020 decision by not discussing whether service connection could be established on a direct basis regardless of whether the Veteran was presumptively exposed to herbicide agents. See May 2022 JMR. Where presumptive service connection is not available, service connection may still be established on a direct basis. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164 (1999). The claims file evidence does not adequately prove or disprove either presumptive or direct service connection. Thus, remand is warranted for additional development. First, as noted above, evidence associated with the claims file reflects that the Veteran served in the Reserve. Even though the claims file contains service treatment records and service personnel records indicating the Veteran's education, performance, assignments, points, and awards, the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran's periods of ACDUTRA and INACDUTRA. Any and all outstanding Reserve medical records should also be obtained. Second, the Veteran asserts that he was exposed to herbicide agents by serving "in a Communication Squadron that would fly in many different aircrafts including the C-123 aircraft from December 3, 1967, to August 31, 1972." See April 2018 Correspondence from Veteran. Specifically, he states that the aircraft on which he flew were the C-123 aircraft previously used in Vietnam. On remand, the Board requests that the RO obtain the Veteran's flight records to confirm whether he consistently flew on these types of aircraft, and the RO should obtain the flight logs during the Vietnam Era for any such identified aircraft. Third, the Veteran has previously asserted that he was exposed to contaminated water at Camp Lejeune. See July 2017 VA Form 21-526EZ. The Veteran, through his representative, claims that he was stationed in North Carolina as evidence by service treatment records reflecting that he was treated in North Carolina for a sore throat in August 1972. See February 2023 Appellate Brief. However, the Veteran's service treatment records indicate that he was treated at a Naval Hospital in Cherry Point, North Carolina, not Camp Lejeune. However, the Veteran's personnel records associated with the claims file do not indicate that he was stationed in North Carolina. In light of this inconsistency, the Board finds that remand is warranted for the RO to confirm where and for how long the Veteran was stationed throughout his military career. Fourth, only medical records regarding the Veteran's diagnosed conditions are letters from his private providers. On remand, the Board requests that the Veteran's complete medical treatment records for his claimed conditions be obtained. Also, to date, the Veteran has not been examined to determine the nature and causes of his prostate cancer and/or chronic lymphocytic leukemia. The RO should afford the Veteran an examination on remand and obtain an opinion determining the natures and etiologies of these conditions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also recently claimed that his responsibilities included "dismantl[ing], test[ing], and fix[ing] equipment that had high levels of radio frequency electromagnetic fields as it's a possible carcinogen." See June 2022 Correspondence from Veteran. Because this assertion requires a medical determination that the Board cannot make on its own, the Board requests that the obtained opinion address this theory. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran's award of Reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA, must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All outstanding medical treatment records from the Veteran's Reserve service, if available, should also be obtained. 2. The RO should obtain the Veteran's flight logs and confirm whether any aircraft, including C-123 aircraft, on which the Veteran flew were exposed to herbicide agents, to include by obtaining the flight logs of said aircraft. 3. The RO should confirm where, and for how long, the Veteran was stationed throughout his military career and include a memorandum in the claims file reflecting this information. 4. The RO should request the Veteran to identify any and all outstanding VA and/or private medical records regarding his prostate cancer and chronic lymphocytic leukemia. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any non-VA medical records). He should also be invited to submit these records himself. All actions to obtain the requested records should be documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 5. Then, schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's prostate cancer. The entire claims file, including a copy of this remand, must be made available to the examiner, who must note its review. The examiner should opine as to whether it is at least as likely as not that the Veteran's prostate cancer manifested during, or is the result of, his active duty service and/or ACDUTRA, to include as due to exposure to herbicide agent(s) and/or contaminated drinking water. In formulating his or her opinion(s), the examiner must consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records, including those reflecting treatment for a sore throat at a Naval Hospital in Cherry Point, North Carolina; (ii) The Veteran's service personnel records, including those reflecting where and for how long he was stationed throughout his military career and his periods of active duty service and ACDUTRA; (iii) The Veteran's post-service medical records; and (iv) The Veteran's competent lay statements, including but not limited to statements made to his medical providers, his April 2018 Correspondence, and his June 2022 Correspondence, reflecting his first-hand in-service experiences and the onset and continuity of his symptomatology. If the examiner determines that the Veteran's prostate cancer is less likely than not due to his active duty service and/or ACDUTRA, the examiner should discuss what other factor(s) caused the disorder. In other words, the examiner should ascertain the most likely etiology of the Veteran's prostate cancer. A complete rationale must be provided for all opinions and conclusions reached. 6. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's chronic lymphocytic leukemia. The entire claims file, including a copy of this remand, must be made available to the examiner, who must note its review. The examiner should opine as to whether it is at least as likely as not that the Veteran's chronic lymphocytic leukemia manifested during, or is the result of, his active duty service and/or ACDUTRA, to include as due to exposure to herbicide agent(s) and/or contaminated drinking water. In formulating his or her opinion(s), the examiner must consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records, including those reflecting treatment for a sore throat at a Naval Hospital in Cherry Point, North Carolina; (ii) The Veteran's service personnel records, including those reflecting where and for how long he was stationed throughout his military career and his periods of active duty service and ACDUTRA; (iii) The Veteran's post-service medical records; and (iv) The Veteran's competent lay statements, including but not limited to statements made to his medical providers, his April 2018 Correspondence, and his June 2022 Correspondence, reflecting his first-hand in-service experiences and the onset and continuity of his symptomatology. If the examiner determines that the Veteran's chronic lymphocytic leukemia is less likely than not due to his active duty service and/or ACDUTRA, the examiner should discuss what other factor(s) caused the disorder. In other words, the examiner should ascertain the most likely etiology of the Veteran's chronic lymphocytic leukemia. A complete rationale must be provided for all opinions and conclusions reached. (Signature on next page) DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.