Citation Nr: 1317241 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 05-06 177 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Thomas M. Hunter, Attorney-at-Law ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active service from December 1966 to December 1969 followed by service in the Reserve. He died in December 2008. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Winston-Salem, North Carolina, VA RO. In a December 10, 2008 decision, the Board denied the Veteran's claim. The Veteran died on December [redacted], 2008. On January 5, 2009, the Veteran's widow filed a Notice of Appeal at the United States Court of Appeals for Veterans Claims (Court). In December 2009, the Veteran's widow requested that she be substituted into the Veteran's claim pursuant to the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat 4145, 4151, (2008) (codified at 38 U.S.C.A. § 5121A). In a September 2010 Order, the Court granted the motion for substitution nunc pro tunc. Subsequently, in December 2010, the Court granted the joint motion for remand (Joint Motion) filed by representatives for both parties, vacating the portion of the Board's decision which held that new and material evidence had not been received sufficient to reopen a claim for service connection for prostate cancer, and remanding that claim to the Board for further proceedings consistent with the joint motion. In August 2011, the Board reopened and remanded this issue for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Additional development is necessary prior to adjudication of this claim. The Veteran remarked in January 2005 that he was exposed to herbicides while serving with the 586th Heavy Equipment Maintenance Company in Okinawa. The Veteran further specified in February 2005 that the vehicles and/or heavy equipment that he had to decontaminate in service were exposed to agent orange. The appellant's representative asserted in June 2012 that the evidence supports the position that agent orange was stored and used in Okinawa during the time that the Veteran was stationed there. The appellant's representative further asserted in January 2013 that the Veteran was exposed to agent orange while cleaning equipment that had been exposed to agent orange in Vietnam and then shipped from Vietnam. This issue was remanded in August 2011 to allow the RO/Appeals Management Center (AMC) to complete the steps outlined in the M21-1 MR, pt. IV, subpt. II, Ch.2 sec. C, para;. 10(o) concerning verification of exposure to herbicides while serving from November 1967 through May 1969 at Okinawa. The Board directed that any additional action necessary for independent verification of exposure to herbicides, to include follow-up action requested by any contacted entity, should be accomplished. In compliance with the steps outlined in the M21-1 MR, pt. IV, subpt. II, Ch.2 sec. C, para;. 10(o), a response was received from VAVBAWAS/CO/211/AGENTORANGE in October 2011. This response indicated that a listing of herbicide use and test sites outside of Vietnam provided by the Department of Defense (DoD) was reviewed. This response further indicated that, regarding the claimant, the DoD list does not show any use, testing, or storage of tactical herbicides, such as agent orange, at any location on Okinawa. However, despite the assertions set forth by the representative's appellant, the Veteran himself asserted that his herbicide exposure occurred as a result of being exposed to vehicles or heavy equipment that had been exposed to agent orange in Vietnam, not that his herbicide exposure was based on the use, testing, or storage of tactical herbicides in Okinawa. Therefore, due to the fact that the October 2011 response did not address all of the specific allegations regarding the Veteran's claimed exposure to herbicides in Okinawa, the Board finds that a second request should be sent via email to VAVBAWAS/CO/211/AGENTORANGE to attempt to verify the Veteran's alleged exposure to herbicides in service. This request should include a more detailed description of the precise allegations regarding the circumstances of his claimed exposure to herbicides or agent orange. Separately, the Board notes that a request to verify the Veteran's reported exposure to herbicides was sent to the United States Army and Joint Service Records Research Center (JSRRC). Although the response from JSRRC looks complete on its face, the Board notes what may be a critical discrepancy. The JSRRC request form indicated that the Veteran's Duty MOS was 63H2D. However, his personnel records reflect that his Duty MOS was actually 63H20. It is unclear whether correction of this error would result in a different response from the JSRRC. However, upon remand, another request should be sent to the JSRRC to verify the reported in-service exposure to herbicides from November 1967 to May 1969 using the correct Duty MOS. Additionally, the JSRRC suggested that (1) the U.S. Army Medical Research Institute of Chemical Defense (Army Medical Research Institute), and (2) the HQDA, Surgeon General be contacted with regard to the question of whether the Veteran was exposed to herbicides or agent orange in service. With respect to the Army Medical Research Institute, VA directed a June 2012 letter erroneously requesting information concerning whether the Veteran participated in "mustard gas testing." Noting the request was pertaining to participation in "mustard gas testing," the Army Medical Research Institute responded that they had no information concerning the Veteran, nor information concerning the use of toxic chemical at facilities in Okinawa. Because the correspondence with the Army Medical Research Institute erroneously identified "mustard gas" as the toxin in question, versus herbicides, a new request should be sent to the Army Medical Research Institute clarifying that the information sought should pertain to the Veteran's alleged exposure to herbicides or agent orange in service, not mustard gas. With respect to the suggested contact with HDQA, Surgeon General, a June 2012 letter was also sent by VA to them that also erroneously referenced "mustard gas testing." There is no documentation of a response from HDQA, Surgeon General. As such, a corrected request must be sent to HDQA, Surgeon General, requesting information regarding whether or not the Veteran was exposed to herbicides or agent orange during service, and the response from HDQA, Surgeon General must be documented. 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. Send a request via email to VAVBAWAS/CO/211/AGENTORANGE to verify the Veteran's alleged exposure to herbicides in service. This request should contain a detailed description of the precise allegations regarding the circumstances of the Veteran's claimed herbicide exposure based on the assertions of the Veteran and the appellant. 2. Request that the JSRRC provide any available information which might verify whether or not the Veteran was exposed to agent orange or herbicides during service, to specifically include while serving in Okinawa from November 1967 to May 1969. If the Veteran's Duty MOS is required for this request, provide the accurate Duty MOS. 3. As directed in the June 2012 JSRRC response, contact the U.S. Army Medical Research Institute of Chemical Defense to verify whether or not the Veteran was exposed to agent orange or herbicides during service, to specifically include while serving in Okinawa from November 1967 to May 1969. 4. As directed in the June 2012 JSRRC response, contact the HQDA, Surgeon General to verify whether or not the Veteran was exposed to agent orange or herbicides during service, to specifically include while serving in Okinawa from November 1967 to May 1969. 5. To help avoid a 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). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 7. If any benefit sought on appeal remains denied, the RO must furnish to the appellant and her attorney an appropriate supplemental statement of the case (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 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 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). _________________________________________________ MICHAEL A. PAPPAS 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 Court. 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).