Citation Nr: 1322682 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 06-38 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to Agent Orange and/or exposure to smoke and other chemicals. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active service from December 1948 to September 1952 and from April 1956 to August 1972. He died in April 2006. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2006 of a Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In a June 2009 decision, the Board denied service connection for the cause of the Veteran's death, to include as secondary to herbicide exposure. The appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion to Vacate and Remand (Joint Motion) in February 2010. By order dated in March 2010, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. In August 2010, February 2012, and November 2012, the Board remanded the case to the RO for further evidentiary development in accordance with the directives in the Joint Motion. However, as will be explained below, another remand is necessary. 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 The evidence demonstrates that the Veteran served in Thailand during his active duty service, specifically Don Muang Royal Thai Air Force Base. His death certificate reflects that the cause of his death was lung cancer. As such, the question is raised whether service connection may be established for the cause of the Veteran's death due to lung cancer 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 respiratory cancers, including, but not limited to lung cancer. See 38 C.F.R. § 3.309(e). 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 herbicide use 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 (MOS), 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 upon the above, with respect to the Appellant's claim for service connection for the Veteran's death, the issue is whether the Veteran's service at Don Muang involved him being in or near the perimeter of that base. Pursuant to the February 2010 Joint Motion and the March 2010 Court Order, the Board in September 2010 remanded the Appellant's claim for service connection for cause of the Veteran's death for development in accordance with the Manual M21-1MR procedures. The remand included adjudication by the RO on the theory of presumptive service connection associated with herbicide exposure based upon the Veteran's service in Thailand. It appears the RO denied the Appellant's claim relying upon the May 2010 bulletin, which also reported herbicide use at Panburi Military Base in Thailand in April through September 1964 and the Veteran's service did not include service at Panburi. As noted, however, the Veteran served at Don Muang and the May 2010 bulletin notes there is evidence of herbicide use in the perimeters at Don Muang. While there is no evidence the Veteran served as a military policeman at Don Muang, the evidence of record demonstrates the Veteran served as a firefighter while stationed at Don Muang. The Appellant's service representative argues the Veteran would have been in the perimeter for brush fires and range fires. There is no evidence in the Veteran's personnel file that the Veteran had to put out a brush fire or range fire in the perimeters of Don Muang. There is evidence that he had to deal with at least one fuel spill in the period March 26, 1968 and July 24, 1968, but that appears to have occurred on the flight line in the interior of the base. Nevertheless, the Board has determined that the Veteran's MOS as a firefighter may have resulted in his presence in the perimeters of the Don Muang Air Force Base if a fire occurred in this area. Such an event would be consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a). The Board has therefore determined an inquiry should be made to the JSRRC for verification. The Appellant, through her service representative has also raised the theory that the Veteran's 23-year occupational exposure history as a firefighter with the Air Force to smoke and various chemicals caused or contributed to the Veteran developing lung cancer. In this regard, the Board also points out that the Veteran had known tobacco use during his lifetime. In a July 2003 Radiation-Oncology report, he gave a history of smoking one pack of cigarettes per day beginning at approximately age 16. He quit smoking in 1996. He was diagnosed with lung cancer in July 2003, and died from complications of the disease in April 2006. Thus, in February 2012, and November 2012, the Board remanded the Appellant's claim for service connection for the cause of the Veteran's death. The Board requested an opinion as to whether it is at least as likely as not that the Veteran's fatal lung cancer is causally related to his occupational exposure to fires and other chemicals during his 23-year military history as a firefighter. In June 2012, a VA physician concluded that the Veteran's lung cancer was more likely related to smoking exposure than any other factor, but did not address the question of whether the Veteran's fatal lung cancer was causally related to his occupational exposure to fires and other chemicals during his 23 years as a firefighter in the military. Additionally, the VA physician's statement that there was a "less clear established relation with lung cancer like fire-fighter occupation" was unclear, and suggested there was some relationship between lung cancer and the Veteran's occupation as a firefighter Accordingly, in November 2012, the Board remanded again requesting an opinion as to whether the Veteran's service contributed to the Veteran's fatal lung cancer. An opinion was obtained May 2013, but a second VA physician stated it would be difficult to determine (without speculating) whether smoking or chemical exposure contributed to the veteran's lung cancer. The physician also stated there is a possibility both could have contributed to the Veteran's lung cancer and it would be difficult to determine, again without speculating, which factor was the predominate factor. The Board has determined that this opinion is also inadequate. As noted by its prior requests, service does not have to be the sole or predominate cause of the fatal lung cancer. Instead, the claim may be proven if the competent evidence establishes that it is a factor that resulted in either the principal or contributory cause of death. See, e.g., 38 C.F.R. § 3.312. Furthermore, it is inadequate for the physician to state an opinion would be speculative without explaining further the basis for that conclusion. In this regard, in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court of Appeals for Veterans Claims (Court) held that the Board may not accept an opinion by a VA examiner that an opinion cannot be reached without resorting to speculation when it is unclear whether the limits of medical knowledge had been exhausted or instead further information to assist in making the determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data is required that might reasonably illuminate the medical analysis. The Court further indicated there must be some assurance that VA exhausted all due diligence in seeking relevant medical information that may have bearing on the requested opinion, and the examiner must explain the basis for such an opinion that he cannot comment conclusively. The Court recognized, however, there will be times when this requested opinion simply cannot be provided, such as when it cannot be determined from current medical knowledge that a specific inservice injury or disease can possibly cause the claimed condition or that the actual cause cannot be selected from multiple potential causes. The Court held that when the record leaves the issue in doubt, it is the Board's duty to remand for further development. It is not clear from the May 2013 VA physician opinion whether additional evidence, such as records of exposure, would be necessary in order for an opinion to be non-speculative. If so, that evidence should be identified and attempts made to obtain it. Otherwise, the examiner must state whether the limits of medical knowledge had been exhausted or that the actual cause cannot be selected from multiple potential causes. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the June 2012 VA opinion and May 2013 opinion are inadequate, the Board finds that the claim must be remanded for a clarifying opinion Accordingly, the case is REMANDED for the following action: 1. Request from the JSRRC or the appropriate custodian for unit records, logs, and incident reports of all fires, including brush fires and range fires occurring in the perimeters of Don Muang Royal Thailand Air Force Base while the Veteran was stationed there between September 1967 and August 1968, assigned to the 631st Combat Support Group (PACAF). Complete any other development in accordance with M21-1MRIV, subpart ii, chapter 2, section C, paragraph 10.q. If the records do not exist or further efforts to obtain the records would be futile, notify the Appellant in accordance with 38 C.F.R. § 3.159(e). 2. After the foregoing development is completed, and if there is no basis to grant presumptive service connection based upon herbicide exposure, arrange for the VA physician who wrote the May 2013 opinion, or suitable substitute, to provide a clarifying opinion on the etiology of the Veteran's fatal lung cancer. The examiner must review the entire claims file, including the Veteran's service treatment records, submitted treatise evidence ("Occupational Exposure and Lung Cancer Risk: A Population-based Case Reference Study in Sweden"), medical records, lay statements, and occupational and tobacco use history. After a thorough review of the records, the examiner should answer the following question and identify the basis upon which the opinion is based: Whether it is at least as likely as not, (i.e., is there a 50/50 chance), that the Veteran's fatal lung cancer is causally related to his occupational exposure to fires and other chemicals during his 23-year military history as a firefighter. The VA physician is advised that the occupational exposure does not need to be the sole cause or predominate cause of the fatal lung cancer, but instead, the physician is asked to determine if it is a contributing cause of the Veteran's death as stated above. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the examiner cannot reach an opinion, the examiner should explain if the reason that the opinion cannot be provided is because the limits of medical knowledge has been exhausted or, instead, because further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data is required. If additional evidence is identified by the examiner, the RO should attempt to obtain that evidence and readjudicate the claim, including obtaining another medical opinion if necessary. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After the development requested is completed, readjudicate the claim for service connection for cause of the Veteran's death. If the benefit sought remains denied, furnish the Appellant and her representative a supplemental statement of the case and a reasonable period to respond, and then 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).