Citation Nr: 1132347 Decision Date: 09/01/11 Archive Date: 09/12/11 DOCKET NO. 06-07 076 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for upper extremity tremors. 2. Entitlement to service connection for peripheral neuropathy, claimed as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack INTRODUCTION The Veteran served on active duty from September 1966 to September 1970, to include service in Thailand. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2005 rating decision in which the RO, inter alia, denied service connection for bilateral tremors of the shoulders and arms and for neuropathy. In July 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2006. The Board notes that, while the Veteran previously was represented by Military Order of the Purple Heart, in July 2005, the Veteran granted a power-of-attorney in favor of the American Legion with regard to the claims on appeal. The Veteran's current representative has submitted written argument on his behalf. The Board has recognized the change in representation. In June 2010, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After partially completing the requested development, the AMC continued to deny the claims (as reflected in a June 2011 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. In the June 2010 remand, the Board noted the Veteran's assertions that he currently suffers from tremors of the upper extremities and peripheral neuropathy as a result of being exposed to herbicides while on active duty on Korat Air Force Base (AFB), Thailand. It also noted that, in May 2004, a VA examiner opined that exposure to Agent Orange could be the cause of the Veteran's tremors and that, in October 2005, another VA examiner opined that the Veteran's peripheral neuropathy is a direct result of excessive exposure to Agent Orange. The Board further noted that the Veteran's claim of exposure to herbicides in Thailand had not been appropriately developed, as the RO had not complied with the development procedures for such claims, provided for in VA Adjudication Procedure Manual and Manual Rewrite (M21-1 MR). Thus, the Board instructed the RO to complete the steps outlined in M21-1 MR concerning verification of exposure to herbicides in Thailand. M21-1MR, pt. IV, subpt. II, Ch.2 sec. C, para. 10(q) directs that, where a veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the specified Royal Thai Air Force Bases, to include Korat AFB, and, through assessment of the Veteran's military specialty or other credible evidence, it is not found that the Veteran's duties placed him at or near the base perimeter, a copy of Compensation and Pension (C&P) Service's "Memorandum for the Record," shown in M21-1MR, pt. IV, subpt. II, Ch.2 sec. C, para. 10(r), is to be placed in the Veteran's claims file; the information provided by the Veteran regarding the approximate dates, location, and nature of the alleged exposure is to be reviewed together with the "Memorandum for the Record," and a determination is to be made as to whether exposure to herbicides can be acknowledged on a direct or facts-found basis as a result of this review. If exposure to herbicides cannot be acknowledged on a direct or facts-found basis as a result of this review, but there is adequate information to permit a search by the U.S. Army and Joint Service Records Research Center (JSRRC), such a request to the JSRRC for verification of exposure to herbicides is to be made. On remand, the AMC submitted a request to the JSRRC for verification of exposure to herbicides in January 2011, and received a response from JSRRC in February 2011. However, no copy of the C&P Service's "Memorandum for the Record," shown in M21-1MR, pt. IV, subpt. II, Ch.2 sec. C, para. 10(r), was placed in the Veteran's claims file. Furthermore, there is no indication in the June 2011 SSOC, or anywhere else in the record, that the information provided by the Veteran regarding the approximate dates, location, and nature of his alleged herbicide exposure-information that was submitted to JSRRC to facilitate an attempt to verify such claimed exposure-was reviewed together with the "Memorandum for the Record" to determine whether exposure to herbicides could be acknowledged on a direct or facts-found basis. In this regard, in a February 2011 formal finding of lack of information required to corroborate the Veteran's allegation of exposure to herbicides in Thailand, the AMC acknowledged that, pursuant to M21-1MR, a copy of the C&P Service's "Memorandum for the Record" was to be placed in the record, and the information regarding the approximate dates, location, and nature of the Veteran's alleged exposure were to be reviewed together with the "Memorandum for the Record." The AMC further acknowledged that if the issue of exposure to herbicides could be resolved on the basis of such review, then the claim should be decided based on the evidence of record. While noting these procedures, the February 2011 formal finding does not indicate that the C&P Service's "Memorandum for the Record" was ever associated with the claims file or reviewed together with the available information regarding the approximate dates, location, and nature of the Veteran's alleged exposure. Therefore, another remand is in order for the RO to complete such development outlined in the M21-1 MR, pt. IV, subpt. II, Ch.2 sec. C, para. 10(q) concerning verification of exposure to herbicides in Thailand. Also, as the Board noted in the June 2010 remand, VA treatment records suggest that Veteran may have current tremors and peripheral neuropathy related to service, but the record includes no actual opinion addressing the medical relationship, if any, between current tremors and peripheral neuropathy, and service. Therefore, if further development verifies that the Veteran was, or may be presumed to have been, exposed to herbicides while on active duty, the Board finds that such medical opinion, or opinions, should be obtained. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the RO arranges for the Veteran to undergo any VA examination, the Veteran is hereby advised that failure to report to the scheduled examination(s), without good cause, may result in denial of the claims for service connection (as the original claims will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2010). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Additionally, while these matters are on remand, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO 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 (2010). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should 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). 2. If the Veteran responds, the RO should 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, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The RO should complete the steps outlined in the M21-1 MR, pt. IV, subpt. II, Ch.2 sec. C, para. 10(q) concerning verification of exposure to herbicides in Thailand. Specifically, a copy of the C&P Service's "Memorandum for the Record," shown in M21-1MR, pt. IV, subpt. II, Ch.2 sec. C, para. 10(r), should be placed in the Veteran's claims file. Also, the available information regarding the approximate dates, location, and nature of the Veteran's alleged herbicide exposure should be reviewed together with the "Memorandum for the Record," to determine whether exposure to herbicides can be acknowledged on a direct or facts-found basis. Any additional action necessary for independent verification of exposure to herbicides, to include follow-up action requested by any contacted entity, should be accomplished. If the search for corroborating records leads to negative results, the RO should notify the Veteran and afford him the opportunity to respond. 4. If, and only if, exposure to herbicides is independently verified, the RO should arrange for the Veteran to undergo VA neurological examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify whether the Veteran has current upper extremity tremors or peripheral neuropathy (as appropriate). If so, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is medically related to service, to include exposure to herbicides. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must 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. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, the RO must 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 benefits 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).