Citation Nr: 25009019 Decision Date: 07/09/25 Archive Date: 07/09/25 DOCKET NO. 18-05 922 DATE: July 9, 2025 REMANDED Entitlement to service connection for residuals of colon cancer is remanded. Entitlement to service connection for residuals of kidney cancer is remanded. REASONS FOR REMAND The Veteran had active service from November 1960 to November 1964. The rating decision on appeal is dated March 2017. In May 2019, the Veteran testified during a Board hearing before the undersigned. The transcript is of the record. In March 2023 the Board denied the issues of entitlement to service connection for colon cancer and kidney cancer. The Veteran appealed the March 2023 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2024 Memorandum Decision, the Court set aside the March 2023 Board decision and remanded the matters to the Board. ? Issues 1-2: Entitlement to service connection for colon cancer and kidney cancer. As discussed by the Board in the March 2025 remand, in the June 2024 Memorandum Decision, the Court noted that the Board found the Veteran's statements that he transported chemicals to Vieques on a regular basis lacked credibility because they were "inconsistent with his training, as reflected in his service personnel records in communications and as a technician", however the Veteran contends that the Board erred in rejecting his statements because it improperly believed he served in the communications field or as a technician. The Court concluded that the Board did not support its adverse credibility determination with adequate reasons or bases for the following reasons. First, although service personnel records establish that the Veteran underwent some degree of communications or technician training, other service records, indicated that he did not complete that training. In December 1960, he volunteered for "communications technician duty," and in January 1961, he agreed to extend his service commitment by 1 year to attend Class "A" School for Radiomen. In May 1961, he was transferred to the Naval Communications Training Center in Pensacola, Florida, to begin the Class "A" School. However, in October 1961, approximately half-way through Class "A" School, the Veteran "dropped for inaptitude." The Court found that the Board failed to address the records indicating that the Veteran did not complete the communications training. Second, the Court stated that the Board focused on the Veteran's training before he was transferred to Roosevelt Roads Naval Station as opposed to considering his duties and designations while stationed in Puerto Rico. The Court noted that the Veteran contends that while in Puerto Rico he was assigned several designations, including seaman and boatswain's mate, however the Board did not address his duties and responsibilities while serving as a seaman or boatswain's mate or whether those designations would lend credence to his assertions of transporting hazardous materials and substances to and from Vieques. The Court pointed out that the Board noted that the Veteran's records documented "one occasion" of transporting ammunition to Vieques to support its conclusion that the Veteran's assertions of regularly transporting hazardous materials was inconsistent with his training in communications. Thus, the Court determined that the Board failed to adequately address the Veteran's service duties and responsibilities. The Court also stated that a response received from the Military Records Research Center (MRRC) in January 2023 was limited to a 4-month period from January to April 1962, however the Veteran was stationed at Roosevelt Roads for 2 years (January 1962 to November 1964). The Court noted that the Board acknowledged the deficiency but did not explain why additional requests to the MRRC were not conducted or not needed. The Court noted that the Board overlooked an October 2021 VA internal email correspondence stating that DOD acknowledges multiple, small-scale herbicide testing was conducted on Puerto Rico between 1963 and 1967. In other words, DOD acknowledged that herbicides were used on Puerto Rico, the island on which Roosevelt Roads Naval Station is located, while the Veteran was stationed there yet the Board failed to seek verification of herbicide exposure from MRRC for any part of the Veteran's service beyond April 1962. Therefore, the Court concluded both that the Board failed to provide adequate reasons or bases for its determination that the Veteran's statements asserting exposure lacked credibility and the Board clearly erred in its determination that VA's duty to assist had been satisfied. In order to comply with the directives of the June 2024 Memorandum Decision, the Board in the March 2025 remand instructed that the MRRC be contacted in order to verify the Veteran's exposure to herbicides like Agent Orange, heavy metals, depleted uranium, or any other toxin/contaminant during service in Puerto Rico, while the Veteran was stationed at Roosevelt Roads Naval Station from January 1962 to November 1964. In April 2025 the Records Research Response was received, the exposure incident was listed as beginning on May 16, 1962, and ending August 31, 1962, and the location was indicated to be the US Naval Station Roosevelt Roads in Puerto Rico. It was noted that a professional researcher from the Veterans Benefits Administration, Office of Field Operations, Records Acquisition and Research (RAR), completed comprehensive research on the Veteran's claimed exposure to Agent Orange while transporting Agent Orange to Vieques, whereby the Veteran supervised loading the personnel and cargo being transported by these trucks onto boats. It was noted that the 1962 Command History Report submitted by the US Naval Station Roosevelt Roads was reviewed as well as an unredacted 2019 DOD Tactical Herbicide Location list. It was concluded that there was no evidence to verify herbicide exposure as claimed by the Veteran. However, this response did not comply with the Board's remand directives for the following reasons. First, the Board requested that verification of the Veteran's exposure to herbicides be verified for the entire period he was stationed at Roosevelt Roads Naval Station from January 1962 to November 1964. Second, the Board also requested that the Veteran's exposure be verified for heavy metals, depleted uranium or any other toxin/contaminant during service in Puerto Rico while stationed at Roosevelt Roads Naval Station. Instead, the research was limited only to herbicide exposure for the period from May 16, 1962, to August 31, 1962. Thus, there was a lack of compliance with the Board's remand directives. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, given that the Board in March 2025 remanded the issues for further development in order to comply with the directives of the Court's June 2024 Memorandum Decision and the AOJ did not comply with the Board's remand instructions, pursuant to Stegall the Board has no choice but to remand the matters for further development. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Contact the MRRC in order to verify the Veteran's exposure to herbicides like Agent Orange, heavy metals, depleted uranium, or any other toxin/contaminant during service in Puerto Rico, while the Veteran was stationed at Roosevelt Roads Naval Station from January 1962 to November 1964. Note the following in the request: the Veteran's enlisted performance record shows that during his service in Puerto Rico he served as a seaman or boatswain's mate; his service personnel records show he participated in ammunition offloading operations at Vieques; and the Veteran contends that he transported chemicals to Vieques on a regular basis. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. After completing the above, undertake any other development indicated. A VA medical examination complete with an opinion should be scheduled, for example, if any exposure during service is verified. 3. Review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. ? 4. Then readjudicate service connection for colon cancer residuals and for kidney cancer residuals. Allow the Veteran and his representative time to respond before returning either or both issues, if a denial is continued, to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mac, M. 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.