Citation Nr: A25041233 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240916-475287 DATE: May 6, 2025 REMANDED Entitlement to service connection for prostate cancer, to include as due to toxic exposure is remanded. Entitlement to service connection for a pulmonary condition, to include pulmonary fibrosis and chronic obstructive pulmonary disease (COPD), to include as due to toxic exposure is remanded. Entitlement to service connection for hypertension, to include as due to toxic exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1961 to September 1963. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the April 2024 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 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). Entitlement to service connection for prostate cancer, to include as due to toxic exposure. The claim must be remanded because of pre-decisional duty to assist errors. Although the rating decision on appeal indicated that the record did not reflect that the disability had been clinically diagnosed, the Veteran's VA treatment records include a Problem List from February 2022 which noted that adenocarcinoma of the prostate was diagnosed in June 2003, and that state that the Veteran was followed by a private provider. It is unclear whether the Veteran has received follow up treatment for prostate cancer during the period on appeal from this private provider, and the record does not show that VA attempted to obtain these pertinent medical records. Additionally, in the March 2024 claim, the Veteran indicated that his claimed condition occurred at Fort Riley and was due to toxin exposure. There was no further development on his claimed exposure to toxins, to include obtaining an etiology opinion as to whether the toxin exposure was a factor in the Veteran's development of prostate cancer. Remand is necessary to address these errors. 38 C.F.R. § 20.802(a). Entitlement to service connection for a pulmonary condition, to include pulmonary fibrosis and COPD, to include as due to toxic exposure. Entitlement to service connection for hypertension, to include as due to toxic exposure. The claims must be remanded because of a pre-decisional duty to assist error. The April 2024 VA medical examinations for hypertension and respiratory conditions are inadequate. The examiner did not provide any nexus opinions for the hypertension or respiratory claims. Additionally, in the March 2024 claim, the Veteran indicated that his claimed conditions occurred at Fort Riley and was due to toxin exposure. However, review of the record does not show that the AOJ accomplished development on his claimed exposure to toxins. Remand is necessary to address these errors. 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: 1. Contact the Veteran, and with the Veteran's assistance and authorization via VA Form 21-4142, identify and obtain copies of any private medical records pertaining to the Veteran's prostate cancer diagnosis and treatment and add them to the claims file. Any attempts to obtain outstanding records which are unavailable should be documented in the record, with notice to the Veteran. 2. Contact the Veteran, and, with the Veteran's assistance take all necessary steps to develop the Veteran's claim that he was exposed to toxins while he was stationed at Fort Riley. 3. After #1 and #2 have been completed, forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for the Veteran's service connection claims for prostate cancer. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. After reviewing the claims file, the examiner is asked to opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently diagnosed prostate condition was incurred in or is otherwise related to service, to include any exposure to toxins while stationed at Fort Riley. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 4. After #1 and #2 have been completed, forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for the Veteran's service connection claims for hypertension and a pulmonary condition. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. After reviewing the claims file, the examiner is asked to opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently diagnosed hypertension or pulmonary condition was incurred in or is otherwise related to service, to include any exposure to toxins while stationed at Fort Riley. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.