Citation Nr: 1634526 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 10-21 714 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as due herbicide exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2009 rating decision in which the RO denied a claim for service connection for diabetes mellitus. In January 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2010. In April 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing has been associated with the record. In April 2012, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further development. After accomplishing further action, the AOJ continued to deny the Veteran's claim (as reflected in the August 2013 supplemental statement of the case (SSOC)), and returned the matter to the Board. In April 2014, after the issuance of the August 2013 SSOC, the Veteran submitted additional evidence in support of his appeal, including two lay statements, an Internet article, and a copy of a January 2014 rating decision in which the Veteran's friend was granted service connection for coronary artery disease and surgical scars. In an April 2014 statement accompanying the submission, the Veteran's representative waived initial AOJ consideration of the evidence. See 38 C.F.R. § 20.1304 (2015). In September 2015, the Board again remanded the claim on appeal to the AOJ for further development. After accomplishing further action, the AOJ continued to deny the Veteran's claim (as reflected in the February 2016 SSOC), and returned the matter to the Board. This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Veteran also has a separate paperless, electronic file in the Virtual VA claims processing system. With exception of the Veteran's VA treatment records, review of the Virtual VA file reveals that the documents are either duplicative of those contained in the VMBS file or irrelevant to the claim on appeal. For reasons expressed below, the claim on appeal is, again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Despite the AOJ's actions, the Board finds that there has not been substantial compliance with the September 2015 remand directives, necessitating further remand of this matter. As detailed in the prior remand, the Board instructed the AOJ to undertake additional development in order to verify whether the Veteran was exposed to herbicides while serving in Thailand. Specifically, the AOJ was instructed to contact the Joint Services Records Research Center (JSRRC) and/or any other appropriate facility to obtain any information regarding the use of herbicide agents at the 7th Radio Research Field Station (RRFS) (also known as Ramasun Station) from August 1, 1968, to August 29, 1969. Additionally, the AOJ was to request information regarding the Veteran's unit, Detachment 4 of the 6922nd Security Wing, and its location at 7th RRFS and Udorn Airfield in Thailand during this period, to include whether the unit was stationed near the perimeter of either base. Finally, the AOJ was instructed to request any information regarding whether the Veteran's specialty code of radio intercept analysis specialist and/or traffic analyst required regular contact with the base perimeter. In December 2012, the AOJ submitted a request to the JSRRC to verify whether herbicides were used at Ramasun Station at any point during the time from August 1, 1968, to August 29, 1969. Additionally, the AOJ requested that the JSSRC verify whether the Veteran's unit was located in an area where herbicides where sprayed, and whether the Veteran's unit was stationed near the perimeter of the base. In December 2012, the JSRRC responded by saying that it was unable to locate records for the Veteran's unit, Detachment 4 of the 6922nd Security Wing, for the time period specified. However, the JSRRC suggested that the AOJ contact the Air Force Intelligence, Surveillance, and Reconnaissance Agency (AFISRA) for additional information. It does not appear that the JSRRC attempted to investigate whether herbicides were used at Ramasun Station. In January 2013, the AOJ submitted a request to AFISRA that was identical to the December 2012 request to JSRRC. The same month, AFISRA responded to the request saying that it was able to confirm that the Veteran's unit was at Udorn Airfield in Thailand during the dates specified. With regard to whether herbicides were used at Ramasun Station, AFISRA stated that the Veteran's unit was a tenant unit located on bases controlled by the Pacific Air Forces (PACAF) and that it would not have any documentation on the use of herbicides at any installation in Southeast Asia. AFISRA suggested that the AOJ contact the Air Force Historical Research Agency (AFHRA). With regard to the location of the Veteran's unit at Udorn, AFISRA stated that, while it could not confirm the specific location of the unit on the base, and although the Veteran's duties mostly entailed inside work, the Veteran may have been exposed to the elements. In March 2013, the AOJ submitted a request to AFHRA that was identical to the December 2012 request to JSRRC and the January 2013 request to AFISRA. That same month, AFHRA responded to the AOJ's request, stating that specific unit histories were maintained by AFISRA. Additionally, AFHRA noted that the 7th RRFS was not a United States Air Force unit, and that neither AFHRA, nor any other Air Force unit, would have the information requested. However, AFHRA stated that it would nevertheless research whether herbicides were used at Udorn. In August 2013, AFHRA responded to the AOJ's request, saying that there was no evidence of herbicide spraying at Udorn during the period the Veteran's unit was stationed there. AFHRA also stated that, since there was no evidence of herbicide use at Udorn, it would not research the location of the Veteran's unit on the airfield. The Board's September 2015 remand further indicated that both AFISRA and AFHRA noted that the Ramasun Station installation was not a part of the United States Air Force. Review of the file reveals that this station was, in fact, a United States Army facility. See Hearing Transcript pg. 3, April 2011; Statement of D.A.M., January 2014. However, in an email dated November 17, 2015, AFHRA indicated that the Udorn Royal Thai Air Force Base, Thailand has no documented use of ever using any commercial grade herbicides at any time on its perimeter fence and at no time did any Thailand United States Air Force (USAF) installation ever use tactical herbicides as a means of vegetation control. Additionally, it was confirmed that Detachment 4 of the 6922nd Security Wing was located at Udorn. AFHRA also indicated the inability to identify the 7th RRFS in that no USAF unit has that designation at that time, or the "Rama Sun Station" in that no USAF installation by that name appears on their listings. In conclusion, AFHRA advised that the agency maintains only the official unit histories of USAF units. See also August 2013 VA JSRRC Memorandum; August 2015 AFHRA Memorandum. In January 2016, in a response to the November 17, 2015 email from AFHRA, the Veteran's representative argued that: VA has established/documented use of herbicides in Thailand through the use of the declassified Project CHECO Southeast Asia Report, as cited on the VA's own website. The site states, 'Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972, contains evidence that there was significant use of herbicides on fenced-in perimeters of military bases in Thailand to remove foliage that provided cover for enemy forces. VA determined that herbicides used in Thailand may have been tactical and procured from Vietnam, or strong, commercial type resembling tactical herbicides.' In addition, the January 2016 response indicates that the Ramasun Station was incorrectly identified as the "Rama Sun Station" in AFHRA's research and also that the station was a U.S. Army installation and not a USAF installation; and as such, the research of a U.S. Army installation is not within AFHRA's area of expertise. In February 2016, the AFHRA responded to the January 2016 argument and agreed that research of a U.S. Army installation is limited and not within AFHRA's area of expertise. In so stating, the AFHRA explained that its research focus was only on USAF Thailand installations, and its use or non-use of tactical herbicides (Agent Orange) or commercial herbicides, and not US Army Thailand installations as this was not the request from VA. AFHRA further explained that the USAF Project CHECO Southeast Asia Report: "Base Defense in Thailand 1968-1972," cited by the Veteran's representative cannot be used "to justify what took place on a U.S. Army installation in Thailand" because the report is a USAF report that only addresses USAF installations in Thailand and it does not address any U.S. Army installations in Thailand or anywhere else as its focus is only on USAF Thailand installations. See February 24, 2016 and February 25, 2016 emails from B.S. of AFHRA. As information pertaining to the use of herbicides at Ramasun Station may still be available, the AOJ should once again attempt to verify whether herbicides were used at Ramasun Station, either through the JSRRC or any other relevant facility. Again, the Board notes that, based on the record, it appears that the facility was operated by the U.S. Army. Thus, the AOJ should once again complete any appropriate development to attempt to verify whether the Veteran was exposed to herbicides at Ramasun Station operated by the U.S. Army. With regard to the Board's request that the AOJ attempt to determine the location of the Veteran's unit at either Ramasun Station or Udorn, the Board notes that the August 2013 correspondence from AFHRA specifically declined to answer the question. To ensure due process and that the duty to assist is fulfilled, the Board finds that, on remand, the AOJ should again attempt to verify the location of the Veteran's unit at Ramasun Station or Udorn. In the regard, the Board again notes that, although the Veteran served in the USAF, Ramasun Station appears to have been operated by the U.S. Army. Accordingly, and consistent with all the above, the AOJ should again attempt to verify whether the Veteran was exposed to herbicides while stationed at Ramasun Station or Udorn Airfield in Thailand. While this matter is on remand, to ensure that the record is complete, and that all due process requirements are met, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the most recent VA treatment records associated with the Veteran's claims file are from the VA Medical Center (VAMC) in Minneapolis, Minnesota, dated to November 6, 2015. On remand, the AOJ should obtain from each facility updated records of any relevant VA treatment of the Veteran. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). The AOJ should also give the Veteran another opportunity to provide any additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The AOJ's adjudication of the claim should include consideration of all additional evidence received prior to and since the last adjudication in the February 2016 SSOC that has not previously been considered-to include the USAF Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran from the Minneapolis VAMC, dated since November 6, 2015. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, current authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Contact the JSRRC or any other relevant facility to include the appropriate facility for U.S. Army installations to request information regarding whether herbicide agents were used at Ramasun Station (7th RRFS) in Thailand between August 1, 1968, and August 29, 1969. Also contact he JSRRC, AFHRA, or any other relevant facility to request detailed unit information for Detachment 4, 6922nd Security Wing from August 1, 1968, to August 29, 1969, at Udorn Airfield in Thailand and at Ramasun Station (7th RRFS) in Thailand to determine the location of these units within the airfield and radio station. Take any additional steps necessary to determine whether the Veteran's specialty code of radio intercept analysis specialist and/or traffic analyst required regular contact with the base perimeter. Follow up on any recommended action (to include referral to any other facility to obtain the requested information). All requests and responses received should be associated with the electronic claims file. All findings should be set forth in a report added to the record. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for service connection for type II diabetes mellitus, claimed as due to herbicide exposure, in light of all pertinent evidence (to particularly include all evidence added to the record prior to and since the last adjudication of the claim, including the USAF Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972) and legal authority. 7. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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 2014). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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 the appeal. 38 C.F.R. § 20.1100(b) (2015). Department of Veterans Affairs