Citation Nr: 25003464 Decision Date: 03/12/25 Archive Date: 03/12/25 DOCKET NO. 19-38 478 DATE: March 12, 2025 REMANDED Entitlement to service connection for hepatocellular carcinoma (HCC), to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from September 1963 to September 1967, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in July 2020, December 2020, February 2022, May 2022, February 2023, and January 2024, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In the most recent remand, the Board directed the AOJ to obtain updated VA treatment records and a VA medical opinion as to whether the Veteran's HCC was caused by participation in an in-service toxic exposure risk activity (TERA). In February 2024, the AOJ obtained updated VA treatment records and also obtained a VA medical opinion as to whether the Veteran's HCC was caused by his participation in a TERA. However, the February 2024 VA medical opinion is not fully adequate. While the Board sincerely regrets the additional delay, further development is required in order to obtain a fully adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Entitlement to service connection for HCC, to include as due to exposure to herbicide agents, is remanded. In the most recent remand, the Board noted that the Veteran's exposure to herbicide agents during service had been conceded by virtue of his service in Vietnam, and that he had also had a diagnosis of HCC during the period on appeal. Given that evidence, and pursuant to the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics (PACT) Act of 2022, the Board remanded the claim to the AOJ to obtain a VA medical opinion as to whether the Veteran's HCC was caused by participation in any in-service TERA(s). See 38 U.S.C. § 1168. The Board directed that the VA examiner was to specifically consider the total potential exposure through all applicable military deployments of the Veteran, and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. In February 2024, VA associated a TERA memorandum with the claims file. VA conceded that the Veteran had been presumptively exposed to herbicide agents by virtue of his service in Vietnam, but also noted that the claims file did not contain an Individual Longitudinal Exposure Record (ILER). Still further, the February 2024 VA memorandum also conceded that the Veteran had other, non-deployment related exposures, including by virtue of his military occupational specialty as a security specialist. The memorandum specifically noted that he had exposure associated with force protection duties, including the use of deadly force to protect personnel and resources, enforcing the law, and preventing and suppressing crime, as well as atmospheric emissions produced by firing guns. The memorandum added that he also had exposure to oils, lubricants, and cleaning chemicals and/or solvents. As noted, the AOJ obtained a VA medical opinion in February 2024. The examiner offered a negative nexus opinion. She reasoned that while the Veteran may have been exposed to a TERA, little was known about the long-term effects from a brief exposure to TERA, and that current medical evidence indicated that long-term health problems were unlikely. She then stated that VA continued to monitor veterans' health issues and conduct research, and that past research on "chemical and biological weapons and states on its website that health effects depend on a number of factors, including the amount of exposure." She stated that those with mild to moderate exposure usually recovered completely, and that there was no scientific evidence available that provided any indication of a relationship between the development of HCC and a TERA. The Board finds that the February 2024 VA medical opinion is inadequate for multiple reasons. First, the opinion is based on the inaccurate factual premise that little is known about the long-term effects from brief exposure generally. In that regard, the Board notes that there are many disabilities for which service connection, as due to exposure to herbicide agents, is available based on brief or even presumptive exposure. While HCC is not among the list of diseases for which presumptive service connection is available, VA regulations do not generally require that a claimant be exposed to herbicide agents for a particular amount of time before service connection on the theory that a disability is due to exposure to herbicide agents becomes available. Still further, there is nothing in the claims file to indicate the Veteran's amount or length of exposure, inasmuch as his service in Vietnam demonstrates that he was presumptively exposed to herbicide agents, rather than directly exposed to them. In any event, the examiner appears to have made an assumption, unsupported by any evidence, that the Veteran had only brief exposure. The examiner did not define what she meant by "brief," and the Board again emphasizes that the claims file does not contain evidence that shows the Veteran's amount or length of exposure. Second, the examiner referenced VA research on chemical and biological weapons in her rationale. While herbicide agents may certainly qualify as chemical and/or biological weapons, that is not typically how VA refers to herbicide agents, which were largely used as a defoliant in Vietnam. There is no indication that the Veteran was ever exposed to herbicide agents while they were being directly used as a chemical and/or biological weapon, which calls into question the examiner's reference to those types of weapons. At minimum, the examiner's use of that term calls into question whether she understood the Veteran's conceded exposures, as her opinion does not directly reference herbicide agents. She also failed to cite to any medical articles or research to support her opinion, despite referencing VA research in the opinion itself. Finally, as noted, the February 2024 VA memorandum conceded that the Veteran had other, non-deployment related TERA(s) during service. There is no indication that the examiner considered those other exposures, despite the Board's specific directive that she was to take into consideration the total potential exposure through all applicable military deployments of the Veteran, and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. Under the circumstances, the Board will seek an addendum opinion. As a final matter, the Board notes that while updated VA treatment records were added to the claims file by the AOJ in early February 2024, in a late February 2024 submission, the Veteran stated that he had had further CT (computed tomography) scans of the lungs done in November 2023 and February 2024 at VA and requested that VA obtain a copy of the scans. The VA treatment records added to the claims file in February 2024 are dated only through late January 2024. While those records contain a copy of the November 2023 CT scan, they do not contain a copy of a February 2024 CT scan. In this regard, the Board notes that the AOJ added additional VA treatment records to the claims file in May 2024 and August 2024. However, on both of those occasions, the records contain treatment visits and/or hospitalizations only from those months. At present, the claims file does not contain a copy of the February 2024 CT scan. Inasmuch as VA treatment records are in constructive possession of the agency, the Board finds that on remand, the AOJ should undertake particular efforts to obtain a copy of the February 2024 CT scan. Updated records of any other VA treatment should also be procured. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency).? This matter is REMANDED for the following action: 1. Obtain a copy of the February 2024 CT scan of the lungs performed at the Mountain Home VA Medical Center in Johnson City, Tennessee, referenced by the Veteran in a February 2024 submission, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Obtain copies of records pertaining to any other VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed, arrange to provide the record on appeal to the VA examiner who offered an opinion as to whether the Veteran's HCC was caused by participation in an in-service TERA in February 2024. After reviewing the record, the examiner should offer a specific opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's HCC was caused by participation in any in-service TERAs. In addressing that question, the examiner must specifically consider (a) the total potential exposure through all applicable military deployments of the Veteran, and (b) the synergistic, combined effect of all TERAs of the Veteran. The Board emphasizes that per a February 2024 VA memorandum, VA has conceded that the Veteran participated in TERAs including exposure to herbicide agents by virtue of his service in Vietnam, as well as non-deployment related exposures, including by virtue of his military occupational specialty as a security specialist, which shows exposure associated with force protection duties, including the use of deadly force to protect personnel and resources, enforcing the law, and preventing and suppressing crime, and that he had exposures including atmospheric emissions produced by firing guns, and exposure to oils, lubricants, and cleaning chemicals and/or solvents. The examiner's opinion must reflect consideration of all TERAs of the Veteran. If the examiner places any reliance in her rationale on the amount or length of the Veteran's exposure(s), she must also identify in the record the evidence relied upon to assess the amount or length of exposure(s) in the Veteran's specific case. The need for an in-person examination or video or telephone interview of the Veteran is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.