Citation Nr: 1118853 Decision Date: 05/17/11 Archive Date: 05/26/11 DOCKET NO. 07-28 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky - THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide exposure. 2. Entitlement to service connection for asthma, to include as secondary to herbicide exposure. 3. Entitlement to service connection for joint disease of the hands and knees (claimed as bone disease), to include as secondary to herbicide exposure. 4. Entitlement to service connection for type II diabetes mellitus, to include as secondary to herbicide exposure. 5. Entitlement to service connection for positional vertigo, to include as secondary to herbicide exposure. 6. Entitlement to service connection for underactive thyroid, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from January 1967 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 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 The Veteran primarily contends that he has peripheral neuropathy, asthma, joint disease of the hands and knees, positional vertigo, and an underactive thyroid because of exposure to herbicides during his service in the US Navy. He indicates that although he was stationed aboard ships at sea, he did come inland in the Republic of Vietnam as part of his duties, which exposed him to Agent Orange. He also contends that he was exposed to Agent Orange on board ships from barrels that he unloaded. He further relates his disabilities, specifically his asthma, to chemicals and asbestos ot which he claims he was exposed during his service. His DD Form-214 shows he was a System Organizational Maintenance Technician. Additional personnel records show that he served at the US Naval Air Station (NAS) in Corpus Christi, Texas, from September 1967 to March 1960, and with Attack Squadron 122 from April 1969 to August 1969, and Attack Squadron 27 from October 1969 to October 1970. Personnel records also show that he served on the aircraft carrier USS Constellation. In an August 2005 statement, the Veteran asserted that he was on a "beach detachment" in South Vietnam from the USS Constellation and VA-27. He stated that their A-7 aircraft were used to drop bombs and provide ground air support over South Vietnam. He further indicated that when the A-7's landed on emergency runways or had mechanical problems the beach detachment did repairs so the planes could fly back to the carrier. The Veteran recalled that there was a shortage of trained A-7 mechanics at that time, which was why a beach detachment from both VA-97 and VA-27 was sent inland to repair their A-7's. He contends that this was when he had land service in Vietnam, which exposed him to Agent Orange. He also stated that at the NAS in Corpus Christi, he worked for "Special Services" in the base vehicle garage and was not working on aircraft. He also stated that there should be treatment records from the USS Constellation where he was treated for shortness of breath and left knee problems in service. In a later statement in June 2005 he indicated that he was exposed to aviation gasoline (dioxin) during his work as an AMH-3 (Aviation Structural Mechanic, Hydraulics, Third Class), and that he served in-country in Vietnam as part of a multi-squadron beach detachment. At the NAS in Corpus Christi, he stated that he was assigned to the Special Services Garage and worked as an auto mechanic doing brake jobs and sanding and painting base vehicles. He contends asbestos exposure as part of these duties. VA treatment records reflect the Veteran's consistent assertions of having inland Vietnam service while on a beach detachment repairing aircraft on the ground. A February 2003 VA Agent Orange Consultation report notes that he indicated that he served on the USS Constellation in flight operations, loading and unloading planes that sprayed Agent Orange. He also recalled working on the sprayers and on many occasions the barrels would leak. He reported that his asthma started in his 30s. The Veteran says he had right knee surgery in 1969, which would have been during his military service. A March 2003 VA Agent Orange Registry examination report also shows that he reported a history of trauma to the knees in service. The report further shows that the Veteran believed he had an onset of wheezing in the military, which was presumed to be related to chemicals, and that shortly after discharge, he required regular treatment for reactive airway disease. The service treatment records (STRs) are negative for any of the Veteran's claimed disabilities. Post-service treatment records show a diabetes mellitus diagnosis beginning in 2002. Treatment for hyperthyroidism also is shown in 2003. There are no findings of peripheral neuropathy of the lower extremities. There are complaints of numbness and tingling in the upper extremities but this appears to be related to a neck injury that took place after service. The Veteran receives current treatment for asthma. There are no findings of positional vertigo. Most of the Veteran's claims hinge on whether or not he was exposed to either Agent Orange, other chemicals, and/or asbestos in service. The Veteran is not presumed to have been exposed to Agent Orange based on his service in the Navy. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The interpretation of the quoted language has been the subject of extensive litigation. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that, in order for the presumption of service connection based upon herbicide exposure to apply, a veteran must have set foot on the landmass of the country of Vietnam or served in the inland waters of that country. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Although the Veteran served during the Vietnam era on a ship that might have been in the waters off the coast of Vietnam, it is not clear from the evidentiary record whether or not he actually set foot in Vietnam as part of his service in the Navy. The Veteran also is not presumed to have been exposed to asbestos during his military service. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service, and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. Because the Veteran is not legally presumed to have been exposed to Agent Orange, asbestos, or any other chemical, the evidence must show that there was actual exposure in the Veteran's case. In this regard, obtaining the ships logs for the USS Constellation during the Veteran's service and/or National Archive records would be useful to determine whether there is a record of the multi-squadron "beach detachments" that repaired planes on land in Vietnam. Also, additional research should be conducted to determine what duties the Veteran had while serving on the USS Constellation, and whether there were planes that sprayed Agent Orange associated with that ship. Last, any other research should be conducted in attempts to verify the Veteran's claimed exposure to asbestos and other chemicals while serving in a Special Services Garage at the NAS in Corpus Christi, working as an automobile mechanic doing brake jobs and sanding and painting base vehicles. The Veteran also should be asked to provide additional information with respect to the treatment he says he received shortly after service for his asthma, in addition to the claimed trauma to the knees in service and the surgery to his right knee in 1969. The Veteran submitted a VA Form 21-4142 dated in December 2003 that noted treatment with Dr. P. Brooks, and Corbin Physical Therapy. It does not appear that these records were ever searched for or obtained. On remand, this should be remedied. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant evidence with respect to his claims. Specifically, ask the Veteran to provide more information concerning the following: a. Where did the right knee surgery in 1969 take place and what were the circumstances around this treatment? b. What type of trauma did he have to his knees in service? c. When and where was he treated for shortness of breath in service and what were the circumstances around this treatment? d. When and where was he first treated for asthma right after military service? 2. Ask the Veteran to sign the proper release forms for any relevant evidence. Also, provide him with the criteria for substantiating a service connection claim pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). 3. Make efforts to obtain any relevant records identified by the Veteran. Document all attempts and notify the Veteran if any evidence is not obtained giving him a reasonable period of time to respond. 4. Obtain the records the Veteran identified and signed the proper release form for in December 2003, specifically the records from Dr. P. Brooks, and Corbin Physical Therapy. 5. Contact the appropriate service department including the US Navy, the National Archives, and/or the National Personnel Records Center to obtain relevant ships logs for the USS Constellation to determine the following: a. Determine whether there is a record of the multi-squadron "beach detachments" that repaired planes on land in Vietnam on the USS Constellation during the Veteran's service. b. Determine duties the Veteran had while serving on the USS Constellation and whether there were planes that sprayed Agent Orange associated with the ship during his service. c. Make attempts to verify the Veteran's claimed exposure to asbestos and other chemicals while serving in a Special Services Garage at the NAS in Corpus Christi working as an auto mechanic doing brake jobs and sanding and painting base vehicles. 6. All responses should be documented in the record. If any response is negative, the Veteran and his representative should be so notified and given an opportunity to respond. 7. When the development requested has been completed to the extent possible, the case should again be reviewed by the RO on the basis of the additional evidence, and readjudicated. The RO should determine whether there is any confirmed evidence of Agent Orange, asbestos, and/or other chemical exposure whether an examination is warranted to determine whether any of the claimed disabilities are related to this exposure. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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. 2010). ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of th1e Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).