Citation Nr: 1307290 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-14 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for thyroid cancer, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active service from September 1955 to September 1958, January 1959 to December 1962, and January 1964 to August 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In July 2011, the Board denied a claim of new and material evidence to reopen a claim for entitlement to service connection for esophageal stricture, a claim for service connection for prostate cancer, and a claim for service connection for lung cancer. It also remanded the claim for service connection for thyroid cancer for a VA examination, which occurred in July 2011 and for record development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a statement received at VA in November 2012, the Veteran appears to be raising a claim for service connection for diabetes mellitus, type II. The issue of service connection for diabetes mellitus, type II has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Although the requested development from the prior remand has been completed, the Board has determined that further development is still needed as a result of information and argument received since the Board's prior remand in July 2011. The Veteran asserts that his thyroid cancer developed while in service in Thailand during the Vietnam Era. Specifically, he states that he was stationed at the Ubon Royal Thailand Air Force base (Ubon) from November 1967 to November 1968. His service representative has pointed out to the Board that there is evidence that herbicides such as Agent Orange were used in Thailand at Ubon and there has not been any development regarding whether the Veteran had herbicide exposure at Ubon in accordance with M21-1MRIV, subpart ii, chapter 2, section C, paragraph 10.q. The file contains the Veteran's service treatment records and portions of his service personnel file, which confirm the Veteran was stationed at Ubon in November 1967 to November 1968. Accordingly, the Board has determined that the RO should develop the case in accordance with the VA Adjudication Procedure Manual, M21-1MRIV, subpart ii, chapter 2, section C, paragraph 10.q. To that end, the RO should obtain the Veteran's complete service personnel file as it may help the Veteran substantiate his claim. In addition, the Veteran has stated he was required to travel to Vietnam on eight occasions as part of his duties. He specifically recalls one occasion in January 1968 where he was sent to Da Nang, Vietnam for reenlistment. He asserts that on each time he traveled, he had travel orders and later submitted travel vouchers. He also states that after he was injured in August 1968. He was medically evacuated to the Philippines and then Japan for treatment but the plane first landed in Vietnam. He then returned to Ubon but again the plane landed first in Vietnam. He states that at each time, all passengers of the plane were off loaded. The Board has therefore also determined that the RO should request unit records or flight records that again might assist the Veteran in his claim. Further, although the Veteran was afforded a VA examination in July 2011, the report did not discuss the relationship between herbicide/Agent Orange exposure and the Veteran's thyroid cancer. The Board notes thyroid cancer is not one of the presumptive diseases that result from exposure to Agent Orange and other herbicides. See 38 C.F.R. § 3.309 (e). Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, if the records development does substantiate the Veteran was exposed to herbicides such as Agent Orange in service, the file should be returned to the VA examiner who conducted the July 2011 to request an opinion regarding the relationship between herbicide exposure and the Veteran's thyroid cancer. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide a statement as to whether his duties included perimeter security duty, or otherwise worked near the Ubon air base perimeter as part of his daily work duties. 2. Undertake development to determine whether the Veteran was exposed to Agent Orange or other herbicides between November 1967 and November 1968, while the Veteran was stationed at the Ubon Royal Thailand Air Force Base, while assigned to the 408th Munitions Maintenance Squadron, 8th Tactical Wing, in accordance with M21-1MRIV, subpart ii, chapter 2, section C, paragraph 10.q. 3. Obtain the Veteran's complete service personnel file. 4. Request from the appropriate custodian unit records for the period from November 1967 to November 1968, to specifically include January 1968 and August 1968, from the 408th Munitions Maintenance Squadron, 8th Tactical Wing, to include any travel orders, travel vouchers, morning reports or their equivalents, or other documents that relate to whether the Veteran traveled to Vietnam for duties that required him to be on the ground in Vietnam. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 5. Request from the appropriate custodian any record of a military flight for medical evacuations leaving Ubon in or about August 1968 and whether such flights routinely stopped over in Vietnam to board additional patients for transport before continuing on to the Philippines or Japan and whether the return flights also stopped in Vietnam. If the records do show stops in Vietnam, the RO should determine whether a previously loaded passenger would be off loaded from the plane while it was in Vietnam. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 6. If herbicide exposure is established, have the same examiner who conducted the July 2011 VA examination to review the file including the evidence added to the file since July 2011, and if the physician is not available, another VA examiner to review all of the evidence. If the examiner believes it is necessary, provide the Veteran an examination to ascertain the nature and etiology of the Veteran's thyroid cancer. The claims file should be made available to the examiner in conjunction with the opinion and/or examination. All necessary testing should be conducted. A complete rationale must be provided for any opinion offered. The examiner is asked to prepare an addendum addressing whether it is at least as likely as not (50 percent probability), the Veteran's thyroid cancer is related to herbicide exposure or otherwise related to service. If, after a review of the record, an opinion on causation is not possible without resort to speculation, the VA examiner is asked to clarify whether an opinion on causation is beyond what may be reasonably concluded based on the evidence of record, considering current medical knowledge. Any additional development that would facilitate rendering the opinion should be specified. 7. After the development requested has been completed, adjudicate the claim of service connection for thyroid cancer, to include as due to herbicide exposure. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ U. R. POWELL 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) (2012).