Citation Nr: 0809730 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-34 349 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of prostate cancer, claimed as due to herbicide exposure and/or poisonous chemical exposure. 2. Entitlement to service connection for status-post anal fistula and abscess, claimed as due to herbicide exposure and/or chemical exposure. 3. Whether new and material evidence to reopen claims for service connection for a left foot disability, a lower back disability, and a right knee disability has been received. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and an acquaintance ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran served on active duty from April 1961 to June 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision that, in part, denied service connection for residuals of prostate cancer and for status-post anal fistula and abscess. The veteran timely appealed. In January 2008, the veteran and an acquaintance testified during a hearing before the undersigned in Washington, D.C. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran and his representative when further action is required. REMAND Residuals of Prostate Cancer, and Status-Post Anal Fistula and Abscess The veteran contends that his residuals of prostate cancer, and status-post anal fistula and abscess are the result of exposure to herbicides, in service, and/or poisonous chemicals in service. The Board notes that, in the absence of evidence of actual duty or visitation in Vietnam, the veteran is not entitled to a presumption of Agent Orange, or other herbicide, exposure. 38 U.S.C.A. § 1116(f). Direct service connection is for consideration for claims based on alleged exposure to herbicide agents in locations other than Vietnam. See 38 C.F.R. § 3.303(d). VA has obligated itself to take certain steps to verify that a veteran was exposed to herbicides in locations other than Vietnam during the Vietnam era. VA Adjudication Procedure Manual and Manual Rewrite (M21-1 MR). See M21-1 MR, pt. IV, subpt. II, ch. 2, sec. C, para. 10(n). It does not appear that such development has occurred in this case. In this case, the veteran testified that he worked in supply while in the U.S. Air Force from 1961 to 1967, and that he handled types of material fluids in five-gallon buckets that were labeled "poisonous chemical." He testified that he handled a lot of "trichoethylene," and that he put the materials in the "flyaway kits" on jet fighter planes. The veteran also testified that Agent Orange was being stored in the warehouses in 1966 and that at times he was close to the storage, but that he did not handle it. Under these circumstances, the Board finds that the AMC should attempt to verify, through official channels, the likelihood of the veteran's exposure to herbicides and/or poisonous chemicals during the course of his duties in service. The veteran's service personnel records, including a record of his assignments (DA Form 20) have not been obtained. These records could be helpful in corroborating the veteran's claimed exposure. In various correspondence of record, the veteran reported exposure while stationed at the Holloman Air Force Base in New Mexico and at the Tuslog DET 47 Incirlik AB in Turkey. If actual in-service exposure to poisonous chemicals and/or to herbicides, to include Agent Orange, is established, the RO or AMC should take any other appropriate action to adjudicate the claims (to include obtaining a medical opinion regarding a nexus, if any, between in-service exposure and claimed disabilities, if appropriate). In this regard, the Board notes that there is currently no medical opinion, fully based on consideration of the veteran's entire documented medical history and VA examination, that explicitly addresses such a relationship. See 38 U.S.C.A. § 5103A. Left Foot Disability, a Lower Back Disability, and a Right Knee Disability In April 2001, the RO confirmed and continued the previous denial of service connection for a left foot disability, a lower back disability, and a right knee disability. The veteran submitted a notice of disagreement (NOD) in June 2001. In June 2001, the RO acknowledged receipt of the veteran's NOD. The RO or AMC has not issued a statement of the case for the veteran's claims for reopening service connection for a left foot disability, a lower back disability, and a right knee disability-in response to the notice of disagreement. The Board is required to remand the claims for the issuance of such a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED to the AMC for the following action: 1. The AMC should request the veteran's service personnel records for his period of active duty from April 1961 to June 1967, to include a record of assignments while stationed at the Holloman Air Force Base in New Mexico and at Tuslog DET 47 Incirlik AB in Turkey, from the National Personnel Records Center (NPRC); and associate them with the claims file. The AMC should send a copy of the veteran's separation documents with the request. 2. The AMC should attempt to verify (see M21-1 MR, pt. IV, subpt. II, ch. 2, sec. C, para. 10(n)), through official channels (e.g. the Department of Defense), the likelihood of the veteran's exposure to poisonous chemicals and/or herbicides in service-specifically, in assignments at the Holloman Air Force Base in New Mexico and at Tuslog DET 47 Incirlik AB in Turkey. If the evidence establishes likely exposure to poisonous chemicals or herbicides, including Agent Orange, during service, the AMC should arrange for the veteran to undergo VA examination to obtain a nexus opinion for each claimed disability. 3. The AMC should issue a statement of the case with regard to the issues of reopening service connection for a left foot disability, a lower back disability, and a right knee disability. The Board will further consider these issues only if a sufficient substantive appeal is received in response to the statement of the case. 4. After ensuring that the requested actions are completed, the AMC should re- adjudicate the claims on appeal. 5. If the benefits sought are not fully granted, the AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).