Citation Nr: 0910685 Decision Date: 03/23/09 Archive Date: 04/01/09 DOCKET NO. 06-35 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970, and from July 1973 to December 31, 1991. He died in March 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the RO. In her November 2006 Substantive Appeal, the Veteran requested the opportunity to testify at a hearing held before a Veterans Law Judge at the RO. The RO scheduled the hearing for May 2008. The appellant did not appear for the hearing and, since that time, has not requested the opportunity to testify at another Board hearing. In light of the above, the Board finds that the appellant's request to testify at a Board hearing has been withdrawn. See 38 C.F.R. § 20.704. REMAND After a careful review of the claims folder, the Board finds that the appellant's claim must be remanded for further action. In this case, the record indicates that the Veteran died on March [redacted], 2005 at the age of 56. The immediate cause of death on the death certificate was terminal lung cancer with metastasis. No other conditions were identified as significant in contributing to the Veteran's death and an autopsy was not performed. At the time of the Veteran's death, the Veteran was not service connected any disability. The appellant in this case contends that the Veteran was exposed to Agent Orange in service and that this caused his terminal lung cancer. Here, the Board notes that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed to Agent Orange during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. The Board also notes that VA is to concede exposure to herbicides on a factual basis if a Veteran alleges service along the DMZ in Korea, and was assigned to one of several particular units between April 1968 and July 1969. See M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l). And if a Veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases, to include respiratory cancers, will be established even though there is no record of such disease during service. Id.; 38 C.F.R. § 3.309(e). In this case the Veteran's service records indicate that the Veteran served in the Republic of Korea from July 6, 1969 to September 18, 1970. He was assigned to Company B of the 2nd Engineering Battalion of the 2nd Infantry Division, Eighth Army. The Veteran's personnel records indicate that he was assigned to Camp Casey, Korea, which was located in the city of Dongducheon, 11 miles southeast of the DMZ. Prior to his death, the Veteran reported that he frequently worked as a combat engineer in the area of the DMZ where Agent Orange was sprayed. In addition, the Veteran's claims file contains a copy of the Imjin Scout Insignia for commendable service along the DMZ in March 1970. In order to warrant presumptive service connection for Agent Orange exposure in the Republic of Korea, the Board notes that the Department of Defense (DoD) has identified specific units that served in areas along the demilitarized zone (DMZ) in Korea where herbicides were used between April 1968 and July 1969. VBA's Adjudication Procedure Manual, M21-1 provides that VA is to concede exposure to herbicides on a factual basis if a Veteran alleges service along the DMZ in Korea, and was assigned to one of these units between April 1968 and July 1969. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l). If the Veteran served in Korea between April 1968 and July 1969 and was not assigned to one of the listed units, then a request is to be submitted to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the location of a Veteran's unit. In this regard, the Board notes that the Court has consistently held that the evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1, are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). In this case, the Veteran's unit is not listed among those delineated in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l), and the Veteran's claims file does not indicate that a request was made to the JSRRC for verification of the location of a Veteran's unit. A remand is therefore necessary in order that the evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1 may be followed in this case. Specifically, the M21-1MR provides that the following development should be performed: a) Ask the appellant and her representative for the approximate dates, location, and nature of the alleged exposure. b) Furnish the description of exposure to C&P service via e-mail at VAVBAWAS/CO/211/Agent Orange, and request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. c) If C&P Service review does not confirm that herbicides were used as alleged, submit a request to The United States Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(m). Based on the foregoing, the Board concludes that this matter must be remanded and that the agency of original jurisdiction must comply with the procedures set forth in the VA Adjudication Manual. Then, in light of all the evidence of record, the RO must readjudicate whether the Veteran was exposed to herbicides while serving in the Republic of Korea, and thus, whether presumptive service connection is warranted for the cause of the Veteran's death from lung cancer. In addition, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate her claim, but she was not provided with notice of the type of evidence necessary to establish a disability rating or effective date. Upon remand therefore, the appellant should be given proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that informs the appellant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, and also includes an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should send the appellant and her representative a letter that contains a notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim addressed in this remand, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should comply with the evidentiary development noted in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l), (m), as described above. Provide the appellant with the information obtained and give her an opportunity to respond. 3. After completing the requested development, the RO should again review the record and readjudicate the claim. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case (SSOC), and an appropriate time should be given for them to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on this matter. 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. 2006). _________________________________________________ STEPHEN L. WILKINS 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) (2008).