Citation Nr: 1324922 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 12-13 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for ischemic heart disease, including based on exposure to herbicide agents. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from August 1954 to July 1976. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam Era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1) (West 2002); 38 C.F.R. § 3.307(a)(6) (2012). Ischemic heart disease has been determined as one of the diseases that is associated with herbicide exposure for the purposes of this presumption38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). The presumption of exposure to Agent Orange in service applies only to Veterans who served in Vietnam. 38 C.F.R. § 3.307(a)(6). The Veteran has not contended that he served in Vietnam, and official records do not support Vietnam service. However, it has been acknowledged that the military used Agent Orange in locales other than Vietnam, specifically including Thailand, and more specifically including the perimeters of the two U.S. Air Force bases at Udorn and Takhli where the Veteran was stationed. The Veteran's service personnel records show that over the interval from July 1968 to August 1969, the Veteran was stationed at the Udorn RTAFB, Thailand, and was assigned to the 432nd Transportation Squadron. The Veteran's performance report for the interval from March 1968 to March 1969 states that the Veteran's duties consisted of performing vehicle maintenance on special purpose vehicles. That report indicates that he also performed "all other duties assigned." The Veteran was then a technical sergeant. The report shows the Veteran's "outstanding" performance, including his volunteering "to work numerous hours over and above normal duty time" to repair "mission essential equipment," as well as "[o]n many occasions [...] volunteer[ing] to assist and train newly assigned personnel" on procedures and technical information. The report again emphasized the Veteran's "many long hours of overtime." Similarly, the Veteran's performance report for the interval from March 1969 to August 1969 reveals the Veteran's continued duties as a special purpose vehicle repairman duties, as a sergeant, and a noncommissioned officer. Thus, the performance report indicates many activities associated with the Veteran's primary duties, without indication of time spent on volunteer and extra duty, to include perimeter guard duties, even while not ruling out this possibility. The Veteran's service personnel records inform that over the interval from November 1972 to November 1973 the Veteran was stationed at the Takhli RTAFB, Thailand, assigned to the 6280 Transportation Squadron. The Veteran's performance report for that interval informs that the Veteran then worked as NCOIC Aircraft Refueling Vehicle Maintenance, responsible for all scheduled maintenance, the ordering of parts, the monitoring of compliance with directives on equipment, and supervising six local national and one Air Force mechanic. The Veteran's performance report for that interval does not inform of any duties in perimeter guard duty, and does not inform of any activities at the perimeter of the air base. He was then a staff sergeant. At his August 2012 RO hearing, the Veteran testified that he believed he was exposed to Agent Orange while working on palletized trucks, which he explained were specialized trucks including refueling units, fire trucks, and personnel carriers. He added that on one occasion he had to repair a loader truck that was stuck in a drainage ditch adjacent to the perimeter. He also testified that his barracks in Udorn were adjacent to the perimeter, and that he performed some guard activities in the vicinity of his barracks and thus in the vicinity of the perimeter. At his June 2013 hearing before the Board, the Veteran testified that he was exposed to Agent Orange while stationed in Udorn, Thailand, and while stationed at Takhli, Thailand, from Agent Orange used around the base to clear weeds and trees, as well as from his work on loaders that were used to load barrels of Agent Orange onto aircraft. He explained that any spills from these barrels would likely have exposed him to the chemicals. Additionally, the Veteran again asserted that his barracks were adjacent to the perimeter, specifically less than 10 feet away. To support the claim for service connection for ischemic heart disease requires a current diagnosis of disability, or at least a diagnosis of the disability at some point during the claim period. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record reflects the Veteran's diagnosis and treatment for several conditions frequently associated with ischemic heart disease, including hypertension, hypercholesterolemia, obesity, and diabetes mellitus. The Veteran is also a male of advanced age, further informing of a likelihood of the presence of ischemic heart disease. However, the obtained treatment and examination records during the claim period and for several years prior to the claim period do not provide a diagnosis of ischemic heart disease. Accordingly, a VA examination is warranted in this case based on the likelihood of the presence of ischemic heart disease, which is an element to support the Veteran's claim for service connection for the disease based on Agent Orange exposure. See 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012) (criteria for necessity of a VA examination addressing medical questions underlying a service connection claim). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issue currently on appeal. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records not yet obtained. All attempts to secure all this evidence must be documented in the claims file by the RO. If after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the RO must schedule the Veteran for an appropriate VA examination to determine whether any current or previously diagnosed heart disorder is related to the Veteran's military service or to a service-connected disorder. All pertinent symptomatology and findings must be reported in detail. The claims file, all records on Virtual VA, and any additional VA treatment or evaluation records in digital formats must be made available to the examiner, and the examiner must specify in the examination report that the claims file, all records on Virtual VA, and any digital VA records have been reviewed. Following a review of the evidence of record, and conducting any necessary tests, the examiner must provide an opinion as to whether the Veteran has ischemic heart disease and/or whether ischemic heart disease was present at any time during the claim period, beginning in January 2011. If so, the examiner must provide an additional opinion of the nature and extent of current heart disability that is not differentiable from that ischemic heart disease. Additionally, the examiner must provide an opinion as to whether any current or previously diagnosed heart disorder is related to the Veteran's military service, or is due to or aggravated by a service-connected disorder. Any opinion provided must include a complete rationale for the opinion. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of the scheduled VA examination must be placed in the Veteran's claims file. 4. After the requested examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. The examination report must be returned to the examiners if it is deficient in any manner and the RO must implement corrective procedures at once. 5. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand orders, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).