Citation Nr: 1323683 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-02 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from July 1968 to June 1970. He died in March 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appellant provided testimony before Decision Review Officers (DROs) in October 2009 and July 2012. Transcripts of both of the hearings have been associated with the claims file. In connection with the appellant's representative's July 2013 Informal Hearing Presentation, he submitted additional evidence consisting of a 1966 Report of Staff Visit, Philippines, Taiwan, and Okinawa as well as An Ecological Assessment of Johnston Atoll and waived agency of original jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The appellant claims that service connection for the cause of the Veteran's death, identified as rectal cancer on the death certificate, is warranted. Specifically, she alleges that he was exposed to herbicides coincident with his service on Kadena Air Base in Okinawa, Japan, where he was stationed from November 1968 to May 1970, which presumptively caused his prostate cancer which, in turn, led to his fatal rectal cancer. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). In the context of a claim for dependency and indemnity compensation (DIC), which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. VA must perform a different analysis depending upon whether a veteran was service-connected for a disability during his lifetime. The Court concluded that notice under 38 U.S.C.A. § 5103(a) for a DIC claim must include: (1) a statement of the disabilities, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected disability; and, (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disorder not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352- 53 (2007). In this case, the Board finds that the October 2007 letter from the RO to the appellant does not contain the level of specificity set forth in Hupp. Specifically, it did not contain information regarding how to establish service connection for the cause of the Veteran's death based on a nonservice-connected disorder. Such is especially relevant as the Veteran was not service-connected for any disabilities at the time of his death. The Court held in Hupp that the Section 5103(a) notice letter should be "tailored" and must respond to the particulars of the application submitted. Therefore, the Board finds that a remand is necessary in order to afford the appellant proper VCAA notice pursuant to Hupp, supra. As relevant to the appellant's allegation that the Veteran was exposed to herbicides on Kadena Air Base in Okinawa, Japan, her representative has submitted a Report of Staff Visit, Philippines, Taiwan, and Okinawa dated in September 1966 that reflects a visit to Kadena Air Base and addresses the methods of pest control, termite control, roach control as well as the use of herbicides. The article regarding An Ecological Assessment of Johnston Atoll suggests that Agent Orange was possibly stored in Okinawa. Additionally, the appellant submitted an internet article indicating barrels of Agent Orange were buried in Okinawa at the end of the Vietnam War at the Futenma Air Station. VA regulations provide that 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, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish the veteran was not exposed to an herbicide agent during such service. The presumption of exposure has recently been amended to include service with specific units in or near the Korean demilitarized zone between April 1, 1968, and August 31, 1971. The appellant contends that the Veteran was exposed during service in Okinawa, Japan. As there is no evidence that the Veteran served in the Republic of Vietnam or Korea, the aforementioned presumptions do not apply in this case. Regarding the appellant's assertions that the Veteran's herbicide exposure occurred in Okinawa, Japan, VA has developed specific procedures to determine whether a Veteran was exposed to herbicides other than in the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), directs that a detailed statement of the claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the inventory of herbicide operations maintained by the Department of Defense (DoD) to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. VBA Fast Letter 09-20 (May 6, 2009). In this case, it does not appear that the required evidentiary development procedures have been developed. Therefore, the Board concludes that this matter must be remanded for compliance with the procedures set forth in the VA Adjudication Manual. The appellant further argues that the Veteran's prostate cancer (which, as noted, she argues should be service-connected as presumptively related to herbicide exposure) led to the rectal cancer which ultimately led to his death. The record shows that the Veteran died in March 2007. According to the Certificate of Death, the immediate cause of death was rectal cancer. November 2006 and May 2007 letters from the Veteran's private treating physicians document the Veteran's prostate cancer. The Board notes, however, no treatment records have been associated with the claims file. The appellant signed a release for medical records in November 2007, and in May 2010; however, is no indication that the AOJ attempted to obtain the treatment records. The Board finds that remand is necessary in order to obtain all treatment records, to include the Veteran's terminal hospitalization records. After completing the aforementioned development, if it is determined that the Veteran was exposed to herbicides while serving on active duty, the AOJ should conduct any additional development deemed necessary for the adjudication of the claim, to include obtaining any required medical opinion(s). Accordingly, the case is REMANDED for the following action: 1. Send the appellant and her representative notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes (1) a statement of the conditions for which the Veteran was service-connected at the time of his death, if any; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected in accordance with Hupp, supra. 2. The AOJ shall comply with the evidentiary development noted in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o). Specifically, the AOJ should contact the VA Compensation Service to request a review of DOD's inventory of herbicide operations based on the information in the Veteran's service personnel records, the documents provided by the appellant and her representative, and the appellant's statements regarding the Veteran's alleged herbicide exposure in Okinawa. Following this action, if herbicide exposure to the Veteran is not verified, the AOJ should then ask the JSRRC for verification as to whether the Veteran was exposed to herbicides as alleged during his period of service in Okinawa. The Veteran's service personnel records, the documents provided by the appellant and her representative, and a summary of the appellant's allegations regarding the Veteran's herbicide exposure in Okinawa must be provided for review. All requests and responses received should be associated with the claims file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted). 3. Provide the appellant with another opportunity to identify or submit any additional treatment records relevant to the Veteran's rectal cancer, to include terminal hospitalization records. After securing any necessary authorization from her, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After completing the aforementioned development, if it is determined that the Veteran was exposed to herbicides while serving on active duty, the AOJ should conduct any additional development deemed necessary for the adjudication of the claim, to include obtaining any required medical opinion(s). 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).