Citation Nr: 1214799 Decision Date: 04/24/12 Archive Date: 05/03/12 DOCKET NO. 07-24 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for recurrent laryngeal carcinoma status post laryngectomy, claimed as throat cancer, as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to September 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. The Veteran testified before a Decision Review Officer in June 2009. He subsequently testified before the undersigned Veterans Law Judge in February 2010. Transcripts of the hearings are of record. This case was previously before the Board in April 2010, when the claim was remanded for further development. The RO issued a supplemental statement of the case in May 2011 and the appeal is once again before the Board. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran has claimed entitlement to service connection for his throat cancer on the basis of exposure to Agent Orange during alleged trips to Vietnam, while stationed in Thailand. An alternative theory proffered by the Veteran is that his throat cancer is the result of his specific military duties during his first and second periods of service. The Veteran reflected in an April 2005 statement that as part of his duties as a munitions specialist, during his first period of service he stored, maintained, transported and otherwise handled munitions such as ammo bombs, missiles, and chemical weapons. He stated that during his second period of service (January 1967 to September 1970), he was sent to Explosive Ordinance Disposal School "E.O.D." where he was trained in defusing and removal of a vast number of weapons and weapons systems. He stated that these included conventional, chemical, and nuclear weapons of foreign and domestic origin. He indicated that all of this training, and later using this training in the field, subjected him to unknown amounts of dangerous chemicals, agents, and materials. He further alleged he had to dispose outdated, damaged, or otherwise unusable domestic ordinances of just about all types, including jet engine starter cartridges. He indicated that disposal would be by burning, dilution, disassembly and/or detonation, bringing him in direct or indirect contact with smoke or other residue. Significantly, it is noted that following the Board's April 2010 BVA Remand, the Veteran's service treatment and personnel records were located and associated with his claims file. A review of the record shows that the Veteran was exposed to various dangerous chemicals, agents, and materials during both periods of service. A performance report from the period between March 1963 and March 1964 reflects that the Veteran's duties included assembling, maintaining, delivering, storing, reconditioning and destroying explosives, incendiary and toxic munitions, non-nuclear warheads, and solid propellant rockets and motors. It was noted that he handled and delivered Conventional and Nuclear Munitions, guided aircraft missiles and guided aircraft rockets, and decontaminated areas and equipment exposed to toxic and radioactive materials. The performance report reflects that the Veteran was assigned as a member of the AIM 9/B Missile Crew where he had observed safety regulations involved in the handling of all munitions delivered and returned from the flight line. It also noted that the Veteran had performed modification on components of the 9/B Missile. A performance report for the period between March 1964 and March 1965 reflected that the Veteran was assigned in the Missile Section. His current duty was listed as a munitions specialist. It was noted that he receives, inspects, stores, and assembles explosive components of the Air Borne Interceptor and Tactical Missiles assigned to the station. A performance report from the period between March 1966 and January 1967 indicated that the Veteran supervised the receipt, storage, shipment, issue and inspection of conventional munitions. A January 1967 to July 1967 performance report noted that the Veteran was the airman in charge of the Conventional Munitions Storage Area. He was responsible for the shipping and receiving, inventorying, storage, function testing, inspection and maintenance of records on all conventional munitions. A performance report from the period between July 1967 and July 1968 reflected that the Veteran was an explosive ordinance disposal specialist who conducted technical munitions disposal activities. It was noted that the Veteran had cross-trained in the Explosive Ordinance Disposal Program and had demonstrated an outstanding ability and desire to familiarize himself in the Explosive Ordinance Disposal Field. The Veteran was responsible for the maintenance of all equipment, tools, and supplies of the EOD Element. A performance report from July 1968 to September 1968 reflected that the Veteran had performed very effectively as a member of the Explosive Ordinance Disposal Element during a highly critical period of time with numerous aircraft, weapons, and hazardous cargo movements. A July 1968 to July 1969 performance report noted that the Veteran performed recovery and disposal of all munitions which have become unserviceable or which have been placed in such a manner as to constitute a hazard to personnel or material. It was noted that on numerous occasions the Veteran had participated in munitions disposal operations and simulated disaster exercises performing his duties in a highly effective manner. Parenthetically, for a majority of the period that the Veteran served in Thailand (March 1965 to March 1966), the Veteran's performance evaluation shows that his duties were as a Recreation Specialist. He coordinated the athletic intramural program and scheduled the base theater program. There is no indication that he handled any type of munitions or chemicals. Moreover, given the description of his official job functions at that time, there is no basis to his assertion that he traveled to Vietnam to transport weapons or munitions. The record also fails to disclose that the Veteran would have traveled to Vietnam, even if he served as a munitions specialist. Nevertheless, the Board finds that the Veteran's allegations of being exposed to dangerous chemicals, agents and materials, and residue from the disposal of munitions to include smoke is reasonable, based on a review of the personnel records. 38 U.S.C.A. § 1154(a) (West 2002). The specific exposure(s) (chemicals or other toxic elements) the Veteran was subjected to is unclear at this juncture. As such, the Board will remand for further development. Moreover, if additional information is obtained regarding the specific chemicals and dangerous agents the Veteran was exposed to, a VA examination to determine if this exposure is the cause of his current throat cancer should be obtained. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the National Personnel Records Center (NPRC), United States Archives, Air Force Historical Research Agency or any other appropriate agency to determine what chemicals or other agents the Veteran was likely exposed to as a: * Munitions specialist (March 1963- March 1964)-, George AFB, California. * Munitions specialist (March 1964- March 1965)- George AFB, California. * Munitions specialist (March 1966-January 1967)- Takhli Thailand and Paine Field, Washington. * Airman in charge of Conventional Munitions Storage Area (January 1967- July 1967)- Paine Field, Washington. * Explosive Ordinance Disposal Specialist (July 1967-July 1968)- Paine Field, Washington. * Munitions Disposal Specialist (July 1968 to July 1969), Hamilton, AFB, California. * EOD Specialist (November 1969-September 1970) Araxos, Greece. 2. If, and only if, the above development provides specific information regarding the conventional, chemical, or nuclear weapons the Veteran was exposed to, or reflects information regarding the hazards the Veteran was exposed to in the disposal of various munitions, a VA examination should be obtained. The VA examination should evaluate the relationship between his throat cancer and active duty service. The claims file must be reviewed in conjunction with the examination. All tests deemed necessary by the examiner must be undertaken. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that the Veteran's throat cancer had its onset during the Veteran's active service or is otherwise causally related to his service, to include the handling and disposal (or otherwise exposure) to the identified chemicals, contaminants, or toxic elements. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated with a supporting explanation. 3. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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. 2011). _________________________________________________ MICHAEL A. HERMAN 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) (2011).