Citation Nr: A25006094 Decision Date: 01/23/25 Archive Date: 01/23/25 DOCKET NO. 230731-368261 DATE: January 23, 2025 REMANDED Entitlement to service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Army from June 1975 to September 1977. This matter is before the Board of Veterans' Appeals (Board) from a November 2022 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the July 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of service connection for prostate cancer, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for prostate cancer The Veteran contends he is entitled to service connection for prostate cancer. Specifically, the Veteran contends he was exposed to Per-and polyfluoroalkyl substances (PFAS) while at Fort Devens and Fort Dix. The Veteran's DD 214 shows that he was stationed at Fort Devens. His military occupational specialty was military policeman. Personnel records show that he was stationed at Fort Dix. A January 2022 VA treatment record shows that the Veteran reported finding an "article by the Army Corps of Engineers concerning chemicals that were carcinogens with a high degree of resultant cancer cases specific to Fort Devens." A June 2022, VA treatment record shows that the Veteran's VA urologist referenced a 2021 article suggesting that PFAS combined with a high fat diet may play a role in prostate cancer development. See CAPRI records submitted August 2, 2022. The article(s) referenced in the VA treatment records is not in the claims file. In July 2022 the Veteran's treating VA doctor, Dr. K.W., submitted a letter which noted the Veteran was diagnosed with prostate cancer and had "significant environmental exposure to PFAS" while stationed at Fort Devens and Fort Dix. The doctor notes there is a "possible connection between exposure to PFAS and the subsequent development of cancer in the genitourinary tract." This opinion is equivocal and therefore inadequate. The Veteran underwent a November 2022 VA examination. He reported significant environmental exposure to PFAS while stationed at Fort Devens and Fort Dix. The medical opinion found the Veteran's prostate cancer was less likely than not due to service as the Veteran's prostate cancer and residuals occurred after separating from service. This opinion provides no rationale and is therefore inadequate. The failure to obtain an adequate opinion is a pre-decisional duty to assist error. During the pendency of this appeal, Congress enacted the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT Act), which imposes a statutory duty on VA to provide an examination and medical opinion when a veteran submits a claim for service connection together with "evidence of a disability and evidence of participation in a toxic exposure risk activity" (TERA) during active service, and the evidence of record is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168 (a)(1). Here, the record contains offers no indication that efforts were made to determine whether the Veteran was exposed to toxins while at Fort Devens and Fort Dix. This constitutes a pre-decisional duty to assist error. The matter is REMANDED for the following action: 1. Verify the Veteran's claimed exposure to toxins while at Fort Devens and Fort Dix. If such exposure (or engagement in a TERA) cannot be verified, a formal finding should be issued and associated with the record. 2. After the above development is complete, schedule a VA examination with a different examiner than the examiner who provided the November 2022 medical opinion. The Veteran's claims file and a copy of this remand should be provided to the examiner for review and the examination report must reflect that the claims file was reviewed. There is no need to schedule an examination unless the clinician deems it necessary. The examiner should address the following: (a.) Provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher, that the Veteran's prostate cancer is related his active service, to include reported exposure to toxins while stationed at Fort Devens and Fort Dix. The examiner must consider (1) the total potential exposure through all applicable military deployments and (2) the synergistic, combined effect of all toxic exposure risk activities. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, please state the reason(s) why this is so. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teich, 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.