Citation Nr: 1317413	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  09-22 929	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUES

1.  Entitlement to service connection for the cause of the Veteran's death.

2.  Entitlement to a total disability rating for compensation based on individual unemployability for the purpose of accrued benefits.

REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to July 1972.  He died in April 2005.  The Appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2006 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In October 2012, the Appellant appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the record.  

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND

On the claim of service connection for the Veteran's cause of death, the death certificate lists the immediate cause of death as complications of end-stage renal disease due to diabetes mellitus.  Peripheral vascular disease and atherosclerotic coronary vascular disease were listed as contributing to the cause of death.  The Appellant asserts that the Veteran's fatal diabetes mellitus and atherosclerotic coronary vascular disease were caused by exposure to Agent Orange in Thailand.  

The service personnel records show that Veteran was an aero photo system repairman while serving during the Vietnam era at the Royal Thai Air Force Base in Ubon, Thailand, from September 1969 to September 1970.  



VA has recognized that Agent Orange was used on the perimeter of military bases in Thailand, including Ubon, during the Vietnam era.  M21-1MR, Part IV, Subpart ii, 2.C.10.q.  As the record is inconclusive about the Veteran's proximity to the perimeter of air base at Ubon, further development under the duty to assist is needed.  

The Veteran had a pending claim for a total disability rating for compensation based on individual unemployability at the time of his death, and the Veteran was receiving disability benefits from the Social Security Administration.  Although the combine rating for the service-connected disabilities was 40 percent, which did not meet the threshold requirements for a schedular total disability rating for compensation, there was evidence that the Veteran was unemployable by reason of service-connected posttraumatic stress disorder, rated 30 percent.  Where the minimum percentage standards are not met, but the Veteran was unemployable by reason of a service-connected disability the claim should be submitted to the VA's Director of Compensation and Pension for extraschedular consideration.  38 C.F.R. § 4.16(b). 

Accordingly, the case is REMANDED for the following action:

1.  Ask the Department of Air Force to provide:

a.  The unit history for the Det. 3, 601st Photo Flight, Ubon, Thailand, from September 1969 to September 1970; and, 
 
b.  The proximity of the unit's daily work location and barracks to the perimeter of the airbase.  

If the records requested do not exist or further efforts to obtain the records would be futile, notify the Appellant in accordance with the provisions of 38 C.F.R. § 3.159(e). 

2.  Request records of the Social Security Administration. 

If the records do not exist or further attempts to obtain the records would be futile, notify the Appellant in accordance with 38 C.F.R. § 3.159(e).

3.  In accordance with 38 C.F.R. § 4.16(b), submit the claim for a total disability rating for compensation based on individual unemployability to the VA's Director of Compensation for extra-schedular consideration. 

4.  After the development has been completed, adjudicate:

The claim of service connection for the cause of the Veteran's death, including the fatal diabetes and coronary vascular disease as due to Agent Orange exposure at the airbase at Ubon Thailand, during the Vietnam era.  M21-1MR, Part IV, Subpart ii, 2.C.10.q.  





The claim for a total disability rating for compensation based on individual unemployability on an extraschedular basis under 38 C.F.R. § 4.16(b). 


If any benefit sought is denied, furnish the Appellant and her 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 matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims 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).



_________________________________________________
George E. Guido Jr.
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).