Citation Nr: 1025775 Decision Date: 07/12/10 Archive Date: 07/19/10 DOCKET NO. 07-08 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for diabetes mellitus type II, to include as due to Agent Orange exposure. 2. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for a liver disorder, including cirrhosis of the liver, to include as due to Agent Orange exposure and/or as secondary to a service-connected disability. 3. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for blood clots and/or deep vein thrombosis, to include as due to Agent Orange exposure and/or as secondary to a service-connected disability. 4. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for a lung disorder, including asthma, to include as due to Agent Orange exposure. 5. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for a brain disorder, including brain hemorrhage, to include as due to Agent Orange exposure. 6. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to Agent Orange exposure and/or as secondary to diabetes mellitus type II. 7. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to Agent Orange exposure and/or as secondary to diabetes mellitus type II. 8. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to Agent Orange exposure and/or as secondary to diabetes mellitus type II. 9. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to Agent Orange exposure and/or as secondary to diabetes mellitus type II. 10. Entitlement to service connection for left hip replacement, osteonecrosis, to include as due to Agent Orange exposure. 11. Entitlement to service connection for right hip replacement, osteonecrosis, to include as due to Agent Orange exposure. 12. Entitlement to service connection for prolapsed trachea, to include as due to Agent Orange exposure. 13. Entitlement to service connection for a thyroid condition, to include as due to Agent Orange exposure. 14. Entitlement to service connection for a dental condition, to include as due to Agent Orange exposure and/or as secondary to diabetes mellitus type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO) that, in pertinent part, denied the Veteran's claims. The Veteran filed a timely notice of disagreement and the RO issued a statement of the case in January 2007. The Veteran filed his substantive appeal in March 2007. In December 2009, the Veteran and his spouse, accompanied by the Veteran's representative, testified at a hearing before the undersigned Acting Veterans Law Judge at the local regional office. At the Board hearing, additional evidence was submitted accompanied by a waiver of RO consideration. This evidence will be considered in reviewing the Veteran's claims. Here, the Board notes that, in December 2003, the RO, in pertinent part, denied entitlement to service connection for diabetes mellitus type II, cirrhosis of the liver (claimed as liver disorder), asthma (claimed as lung disorder and upper airway damage), all as secondary to Agent Orange exposure, and entitlement to service connection for a brain disorder and blood clots. The Veteran did not file a notice of disagreement and the claims became final. The Board notes therefore that, with respect to the claims of entitlement to service connection for diabetes mellitus type II, a liver disorder, to include cirrhosis of the liver, a lung disorder, to include asthma, a brain disorder, and blood clots, before reaching the merits of the Veteran's claim, the Board must first rule on the matter of reopening of the claims. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. See Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues have therefore been styled as set forth above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board finds that the Veteran's claims must be remanded for additional development. First, the Board notes that the Veteran testified before the Board that he has been receiving disability benefits from the Social Security Administration since approximately 1980. In addition, a note at the end of the August 2006 RO decision also notes that the Veteran is receiving benefits from the Social Security Administration. Records related to the Veteran's application for, or award of, disability benefits from the Social Security Administration have not been associated with the Veteran's claims file. Records related to such award, should therefore be associated with the Veteran's claims file. 38 C.F.R. § 3.159. See also 38 C.F.R. § 3.159(c)(2) (when attempting to obtain records in the custody of a Federal department or agency, including the Social Security Administration, VA must make as many requests as are necessary to obtain relevant records; VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). Here, the Board notes that VA's duty to assist claimants is codified at 38 U.S.C. § 5103A. VA has a duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim." Golz v. Shinseki, No. 2009-7039 (Fed. Cir. Jan. 4, 2010); 38 U.S.C.A. § 5103A(a)(1). Relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Id. The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records. Id. Next, the Veteran, in testimony before the Board, indicated that he had tracheal surgery in Denver, Colorado, in 1980. The veteran's medical records indicate that the surgery may have taken place in 1981. These records have not been associated with the Veteran's claims file. Pursuant to the VCAA, VA must attempt to obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). In addition, the Veteran's representative, in an April 2010 brief submitted to the Board, noted the existence of articles indicating that Agent Orange may have been stored and/or used in Guam from 1955 to the late 1960s, and that in the 1990s the Environmental Protection Agency (EPA) listed Anderson Air Force Base (AFB) as a "toxic site with dioxin contaminated soil and ordered clean up of the site." These articles were not provided to the Board. Upon remand, the Veteran should be invited to submit any articles or evidence that may serve to support his contentions that he was exposed to Agent Orange while serving in Guam in 1968, including the articles mention above. In this regard, the Board notes that in Thurber v. Brown, 5 Vet. App. 119 (1993), the Court held that, in rendering a decision on a claim, the Board could not rely on evidence obtained or developed subsequent to the most recent statement of the case or supplemental statement of the case without first providing the claimant with reasonable notice of such evidence and the Board's intended reliance on the evidence. See also 38 C.F.R. § 20.903 (2007). Next, during his testimony before the Board, the Veteran reported that, in January 1968, he was involved in a convoy transporting large barrels or drums of herbicide from the munitions base, where he was assigned, to Anderson AFB. He stated that the truck containing the barrels of herbicide almost turned over and, in the process, lost 3 or 4 of the barrels out of the truck. He stated that at least one or two of the barrels leaked a large amount of the herbicide on the roadway. He reported that the herbicide was very pungent and stung his eyes. The Veteran and two or three other servicemen used brooms to help sweep the herbicide off of the road. The Veteran stated that he lost consciousness as a result of his efforts and woke in the hospital. He stated that the physicians told him he had been exposed to Agent Orange. The Veteran noted that he had asthma as a child and indicated that he thought the exposure to Agent Orange caused a flare of the asthma that led to his hospitalization. In this regard, the Board notes that the Veteran's service personnel records do not appear to be associated with the Veteran's claims file, but that the Veteran's service treatment records show a summary of the Veteran's hospitalization from January 31, 1968 to February 14, 1968. These medical records indicate that the Veteran was in his usual health until approximately two weeks prior to admission when he noted the onset of anterior chest pain and nasal congestion, and later dyspnea on exertion and productive cough. He was treated, but failed to respond and was subsequently admitted for further evaluation and treatment. There is no mention in this summary of any exposure to Agent Orange or a spill of herbicides and the records do not indicate that there was any loss of consciousness that initiated the admittance to the hospital. The Veteran was given a medical evacuation to CONUS and later medically discharged from the service in April 1968. The April 1968 Medical Board Report found that the Veteran was discharged for bronchial asthma, not in the line of duty, and that the disability existed prior to service and was not aggravated by service. In this regard, the Board also notes that the Veteran's service treatment records indicate that the Veteran had asthma and/or hay fever prior to enlistment and that the Veteran was a smoker. On the Veteran's enlistment Medical History, the Veteran checked "yes" to "hay fever" and "had asthma, hay fever, hives." However, the mere noting of a disorder by history at the time of enlistment is not sufficient to rebut the presumption of soundness. The service treatment records also show treatment for bronchitis and asthma attack in February and August 1967. The Veteran's post-service medical records indicate that the Veteran has many different medical conditions including asthma, status post tracheal reconstruction, diffuse mandibular pain, chronic right hip replacement infection, avascular necrosis of the hips, insulin dependent diabetes mellitus, cryptogenic cirrhosis with abnormal liver function, history of subarachnoid hemorrhage, hypothyroidism, history of right lower extremity deep vein thrombosis, peripheral neuropathy, and chronic obstructive pulmonary disease, among other conditions. The Veteran's post- service medical records also note that the Veteran sustained severe smoke inhalation and burns in a grocery store fire in January 1978 that included fumes from Styrofoam and plastics. Over the next three years, the Veteran's medical records indicate that he underwent 40 or 50 hospitalizations for recurrent airway disease manifested by chronic wheezing, secretion retention and dyspnea. As it was determined that his airway obstruction was due in part to tracheal collapse, the Veteran underwent tracheal reconstruction in 1981. Upon remand, the Veteran should be provided an opportunity to provide evidence that he was exposed to Agent Orange in January 1968 during a spill of herbicides in Guam. This may include statements from some of the other servicemen involved with accident and cleanup of the spill. The RO should also request the Veteran's service personnel records from the National Personnel Records Center, including any information regarding storage or use of Agent Orange in Guam during the period when the Veteran served there. The RO should also update records of the Veteran's treatment at the Phoenix VA Medical Center dated since October 2009. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Lewinski, 2 Vet. App. 611, 613 (1992 VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). Relevant to the Veteran's claims, after associating the foregoing records with the Veteran's claims file, the Veteran should be afforded appropriate VA examination and opinions in connection with his claims, including an opinion as to whether the Veteran's claimed disabilities are related to his in-service exposure to Agent Orange. For purposes of the examination, the examiner should assume that the Veteran was, in fact, exposed to Agent Orange as a result of the spill that occurred during his transport of the chemical on the island of Guam in 1968. Since asthma was not noted on service entry, in the event the examiner finds that the Veteran has asthma, he or she should also be requested to provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's asthma preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116 (2003). Finally, the Board notes that in the case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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 addition, specific to requests to reopen a previously denied claim, the Veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate his claims of service connection for each of his claims except for the claims of entitlement to service connection for a lung disorder, to include asthma, and new and material evidence to reopen the claims of service connection for blood clots and asthma. Upon remand therefore, the Veteran should be given proper notice with respect to these claims under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include evidence that informs the Veteran that a disability rating and an effective date for the award of benefits will be assigned if a claim is granted, 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 action: 1. The RO should send the Veteran and his representative a letter explaining the VCAA, to include the duty to assist and notice provisions contained therein with respect to the claims of entitlement to service connection for a lung disorder, to include asthma, and new and material evidence to reopen the claims of service connection for blood clots/deep vein thrombosis and a lung disorder, to include asthma. The letter should also specifically inform the Veteran and his representative of which portion of the evidence is to be provided by the claimant and which part, if any, the RO will attempt to obtain on his behalf, and should include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims addressed in this remand, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disabilities. This should specifically include records related to the Veteran's tracheal surgery in Denver, Colorado, in 1980 or 1981. This should also include records of the Veteran's treatment at the Phoenix VA Medical Center dated since October 2009. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 3. The RO should obtain the Veteran's service personnel records from the National Personnel Records Center or any other appropriate source. In addition, the RO should request from the appropriate agency any information regarding storage or use of Agent Orange in Guam during the period when the Veteran served there. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran should also be invited to submit any articles or evidence that may serve to support his contentions that he was exposed to Agent Orange while serving in Guam in 1968, to include (i) articles indicating that Agent Orange may have been stored and/or used in Guam from 1955 to the late 1960s, and that in the 1990s the Environmental Protection Agency (EPA) listed Anderson Air Force Base (AFB) as a toxic site with dioxin contaminated soil and order clean up of the site, and (ii) lay or buddy statements from other servicemen involved with accident and cleanup of the spill. 4. The RO should request, directly from the SSA, complete copies of any disability determination(s) it has made concerning the Veteran, and copies of the medical records that served as the basis for any such decision(s). All attempts to fulfill this development must be documented in the claims file. If the search for any such records yields negative results, that fact should be clearly noted, with the RO either documenting for the file that such records do not exist or that further efforts to obtain them would be futile, and the Veteran being informed of the circumstances in writing. 5. After associating the foregoing records with the Veteran's claims file, the RO should arrange for an appropriate VA examination for the purpose of determining whether the Veteran has any of his claimed disabilities and, if so, whether such disability had its onset in service, within one year of service, whether the disability is result of exposure to Agent Orange in service, or whether the disability is secondary to a service- connected disability. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to: (a) Does the Veteran have any of the following disabilities, to include diabetes mellitus type II, a liver disorder including cirrhosis of the liver, blood clots or deep vein thrombosis, a lung disorder including asthma, a brain disorder including hemorrhage, peripheral neuropathy of the upper and/or lower extremities, bilateral hip replacement/osteonecrosis, prolapsed trachea, a thyroid disorder, and/or a dental disorder? If so, state the diagnosis or diagnoses. (b) If the examiner finds that the Veteran has one or more of the claimed disabilities, did such disorder have its onset during active duty or within one year of active duty, was such disability caused by exposure to Agent Orange in service, or was such disability caused by a service-connected disability, to include medication taken in connection with such service-connected disability. In this regard, the examiner is asked to comment on the Veteran's service and post-service medical treatment records, and the Veteran's testimony before the Board, and for the purpose of the examination, the examiner should assume that the Veteran was exposed to Agent Orange as a result of the spill that occurred during his transport of the chemical on the island of Guam in 1968. (c) If there is a diagnosis of asthma, the examiner should also provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's asthma preexisted service and was not aggravated by service. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached in a typewritten report. 6. The RO/AMC should read all medical opinions obtained to ensure that the remand directives have been accomplished, and should return the case to the examiner if all the questions posed are not answered. 7. After completing all indicated development, the RO should review the claims in light of all the evidence of record. If any determination remains adverse, the Veteran must be furnished with a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response thereto. The appellant 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to the provisions of 38 C.F.R. § 3.655 (2009) failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2009). _________________________________________________ Michael J. Skaltsounis Acting 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).