Citation Nr: 1307477 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 04-11 979A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for cardiovascular disease, to include as secondary to a service-connected disability, and to include as due to exposure to an herbicidal agent. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from November 1953 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). In a November 2009 remand, the Board found that the issue of entitlement to a total rating based on individual unemployability (TDIU) had been reasonably raised by the record. Based on a review of the record since then, the Board has found no indication that the RO has undertaken any development of this issue. As such, Board again refers the issue of entitlement to a TDIU to the RO for appropriate action. Additionally, the Board finds that the record reasonably raised the issue of entitlement to service connection for peripheral vascular disease, to include as secondary to his service-connected low back condition. The RO has not developed or adjudicated this matter and, thus, the Board does not have jurisdiction to consider this issue herein. As such, the Board also refers the issue of entitlement to service connection for peripheral vascular disease, to include as secondary to the Veteran's service-connected low back condition, for the appropriate action. This appeal has been advanced on the Board's docket pursuant to. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The above-captioned matter was previously before the Board in June 2011, when the Board denied the Veteran's claim. The Veteran appealed the June 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in August 2012, the Court vacated the Board's June 2011 decision and remanded the case to the Board for development consistent with the directives of a Joint Motion for Remand. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND The evidence of record clearly demonstrated that the Veteran served in Thailand during his active duty service. In addition to his various statements wherein he detailed his active duty service at Air Force bases in both Korat and Takhli, Thailand, the Veteran's service treatment records demonstrated various instances of treatment while stationed at Takhli Air Force Base in 1965 and 1966. As such, his presence at Korat and Takhli Air Force Bases is confirmed. In addition to his assertion of entitlement to service connection on a secondary basis, the Veteran claims that he was exposed to an herbicidal agent during his active duty service at the Korat and Takhli Air Force Bases. Based on this alleged exposure, the Veteran asserts that he is entitled to service-connection for cardiovascular disease on a presumptive basis. Regulations provide that if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for ischemic heart disease, including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, including coronary spasm, and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 38 C.F.R. § 3.309(e) (2012). Additionally, VA's Compensation & Pension Service has issued information concerning the use of herbicides in Thailand during the Vietnam War. According to a May 2010 bulletin, Compensation & Pension Service determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand, a practice that was intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although the Department of Defense indicated that the herbicide used was commercial in nature, rather than tactical (such as Agent Orange), Compensation & Pension Service has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. ("M21-1MR"). Given this information, Compensation & Pension Service has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, Compensation & Pension Service stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identified several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. As such, Compensation & Pension Service indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). Based on the above, the salient issue with respect to the Veteran's claim of entitlement to service connection for cardiovascular disease is whether his active duty service at the Korat and Takhli Air Force bases involved him being on or near the perimeter of those bases. The evidence of record demonstrated that the Veteran consistently reported that he served as an Electronics Technician, a Weapons Control System Technician, and/or Mechanic; however, the Veteran's service personnel records have not been associated with the claims file. As such, in order to satisfy VA's duty to assist, the Board finds that a remand is required in order for the RO to undertake efforts to obtain all of the Veteran's service personnel records. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must contact the Veteran and request that he provide a detailed description of the duties associated with his active duty service while stationed at both the Air Force bases in Korat and Takhli, Thailand. 2. Regardless of whether a response is received from the Veteran regarding the nature of his duties while stationed at the Korat and Takhli, Thailand Air Force bases, the RO must undertake all reasonable actions to obtain the Veteran's service personnel records from the appropriate agency. If, after making reasonable efforts to obtain the Veteran's personnel records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claim on appeal, taking into consideration all of the relevant evidence of record and the guidance provided in VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. ("M21-1MR") concerning exposure to herbicidal agents at Air Force bases in Thailand. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 or by the Court 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).