Citation Nr: 1309890 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-12 322 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD R. Giannecchini, Counsel REMAND The service department has indicated that the Veteran served on active duty from November 1969 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal following a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had requested a Board hearing but later withdrew that request in August 2011. In a September 2007 statement, the Veteran reported that he had been stationed at the United States Air Force base in Ubon, Thailand between 1971 and 1972. He also reported that his occupational duties involved working on AC-130 gunships and that he flew missions in the aircraft over Vietnam. His unit of assignment was noted as the 16th Special Operations Squadron (Spectre). In an April 2009 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran again reported that he flew missions over Vietnam in AC-130 gunships. He also felt that his time flying over Vietnam exposed him to Agent Orange. A review of the Veteran's DD Form 214 reflects his military occupational specialty (MOS) as an aircraft maintenance specialist. The Veteran's AF Form 7 (Airman Military Record) identifies him as an aircraft maintenance specialist for the AC-130A gunship and also that he was stationed at Ubon Air Force Base beginning in January 1971. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) (2012) are met. See 38 C.F.R. § 3.309(e) (2012). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include prostate cancer. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). 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. Id; 38 C.F.R. § 3.313 (2012); see also Haas v. Peake, 525 F.3d. 1168, 1174 (Fed. Cir. 2008), cert. denied 129 S. Ct. 1002 (2009); VA Gen. Coun. Prec. 7-93 (July 1993) (service in Vietnam for § 3.313 purposes does not include high altitude missions in Vietnamese airspace). With respect to service in Thailand, a May 2010 Compensation & Pension Service (C&P Service) bulletin reflects that there was significant use of herbicides on the fenced perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. The bulletin explains that, when herbicide-related claims from veterans with Thailand service are received, RO personnel are required to evaluate a veteran's service treatment and personnel records to determine whether the veteran's "service activities" involved duty on or near the perimeter of the military base where the veteran was stationed. The bulletin also notes that the C&P Service has determined that special consideration of herbicide exposure on facts found or on a direct basis is to be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases, which allows for presumptive service connection of the diseases associated with herbicide exposure. In addition, the C&P Service bulletin notes that if a U.S. Air Force veteran served on one of the enumerated U.S. Air Force bases in Thailand, which includes Ubon, as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter (as shown by that individual's military occupational specialty (MOS), performance evaluations, or other credible evidence), then herbicide exposure is to be acknowledged on a facts found or direct basis. In conjunction with the May 2010 C&P Service bulletin, VA has developed specific procedures for developing and considering claims of veterans who allege a disability based on exposure to herbicides (Agent Orange) while serving in Thailand. See VA ADJUDICATION PROCEDURE MANUAL M21-1MR, Part IV, subpart ii, chapter 2, section C, para. 10(o), (q), and (r). See also VBA Fast Letter 09-20 (May 6, 2009) (Developing for Evidence of Herbicide Exposure in Haas-Related Claims from Veterans with Thailand Service during the Vietnam Era.) A review of the Veteran's claims file does not reflect that any of the necessary development based on his claim for a disability secondary to exposure to herbicides while serving in Thailand has been undertaken in accordance with the M21-1MR. Therefore, remand is necessary to allow for such development prior to the Board's consideration of the Veteran's appeal. Also, in a statement (VA Form 21-4138) from the Veteran's prior representative, dated in August 2011, it was noted that a letter was associated with the claims file from a retired U.S. Air Force colonel. The letter reportedly noted that the AC-130 gunships would make stopovers in Vietnam. The Board's review of the physical claims file and the Veteran's Virtual VA electronic claims file does not reflect any letter from a U.S. Air Force colonel as described by the Veteran's representative. Therefore, the RO should notify the Veteran of this fact and invite him to submit the noted letter, or any of evidence of service in Vietnam, in support of his claim. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any available VA treatment records documenting the Veteran's treatment since December 2007. 2. Invite the Veteran to submit evidence of his service in Vietnam, to include submission of an identified letter from a U.S. Air Force colonel in which the colonel reported that AC-130 gunships landed in Vietnam. (See August 2011 VA Form 21-4138). The Veteran should also be asked about specific flights over Vietnam, altitudes at which the missions were flown, and any other war-time activities engaged in by the AC-130 airplane that would have exposed him to herbicides used in Vietnam. 3. Undertake all required development as indicated by the M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), (q), (r) and instructions in the VA Fast Letter 09-20, and send a request, if deemed necessary, to the Army and Joint Services Records Research Center (JSRRC) or appropriate agency in order to attempt to determine whether the Veteran was exposed to herbicides during his period of service in Thailand based on the information of record. The Veteran should be asked about his specific duties in Thailand and the locations of his activities. All documentation of such efforts and responses should be added to the claims file, to include following any recommendations provided by the JSRRC in obtaining relevant records from alternate sources. 4. After the above-requested development has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issue on appeal. If the benefit sought is denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).