Citation Nr: A25035297 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240416-441775 DATE: April 16, 2025 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for chronic lymphocytic lymphoma leukemia (CLL) is remanded. REASONS FOR REMAND The Veteran had active service from April 1970 to August 1970, with additional service in the Army National Guard. These matters are on appeal from an April 16, 2024 higher level review rating decision. Although these claims have been previously denied by the Agency of Original Jurisdiction (AOJ), they were adjudicated on the merits. The Board finds that this in an implicit finding that new and relevant evidence has been submitted by the Veteran. Therefore, the Board will adjudicate the claims on the merits. In the May 2024 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 April 3, 2024, AOJ decision that was subject to higher level review. 38 C.F.R. § 20.301. Any evidence submitted after the April 3, 2024, 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 claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for prostate cancer is remanded. 2. Entitlement to service connection for CLL is remanded. In August 2019, the Veteran wrote that he was exposed to herbicide agents while he was stationed at Fort Chaffee from 1972 to 1975. He observed chemicals being sprayed to control weeds around his barracks and at other locations while on base. The Veteran reiterated his contention in a February 2024 statement. The Board observes that the AOJ has not undertaken the necessary development of determining the nature of the Veteran's National Guard service. This development is critical in this case, as the criteria to establish service connection for disabilities may have been incurred during periods active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). Specifically, while service connection may be established for disabilities resulting from injuries incurred in periods of ACDUTRA and INACDUTRA, service connection is warranted for diseases initially manifesting on periods of ACDUTRA only. Upon review of the evidence, the Board notes that pertinent records are not associated with the claims folder. An Army National Guard retirement points statement and a complete copy of the Veteran's National Guard records have not been associated with the record. Therefore, the Board is unable to determine whether the Veteran had qualifying periods of service other than from April 1970 to August 1970. The failure to obtain these records constitutes a predecisional duty to assist error. On remand, all available National Guard personnel records, should be obtained and associated with the claims file. Upon receipt of any National Guard records, any additional periods of ACDUTRA and INACDUTRA should be specified. Additionally, the AOJ received guidance from the Department of Defense regarding the Veteran's alleged exposure to herbicide agents. Herbicide agents were used at Fort Chaffee from July 1967 to October 1967. The Veteran was in the Army National Guard from February 1970 to February 1976. Therefore, exposure to herbicide agents may not be conceded. However, the Board finds the Veteran's reports of exposure to commercial herbicides to be competent and credible. Although exposure to commercial herbicides does not warrant presumptive service connection, direct service connection may still be awarded. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). If it is determined that the Veteran's reported exposure to commercial herbicides occurred during a qualifying period of service, the AOJ should obtain medical opinions regarding whether it is at least as likely as not that the Veteran's prostate cancer and CLL were caused by his exposure to commercial herbicides. The matters are REMANDED for the following actions: 1. The AOJ should verify the dates of the Veteran's service in the Army National Guard, to include the dates of all periods of ACDUTRA and INACDUTRA. A summary of all dates of ACDUTRA and INACDUTRA served by the Veteran must be associated with the claims file. If necessary, the Veteran's complete personnel file and pay stub from the National Personnel Records Center (NPRC) and Defense Finance and Accounting Service (DFAS), respectively, should be sought and obtained. 2. If it is determined that the Veteran's reported exposure to commercial herbicides occurred during a qualifying period of service, obtain medical opinions from an appropriate clinician regarding whether the Veteran's prostate cancer and CLL are at least as likely as not ? related to active service, to include his conceded exposure to commercial herbicides. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.