Citation Nr: 1330344 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-46 937A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for prostate cancer, to include due to exposure to herbicides. 2. Entitlement to special monthly conpensation based on loss of use of a creative organ. REPRESENTATION Appellant represented by: Vermont Veterans Affairs Section, Military Department WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from October 1968 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In September 2012, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. This case was previously before the Board in December 2012. For the reasons discussed below, the Board finds that there has not been substantial compliance with the mandates of the remand order. See Stegall v. West, 11 Vet. App. 268 (1998). 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims. See 38 C.F.R. § 19.9 (2013). In the December 2012 remand, the Board requested that the agency of original jurisdiction (AOJ) obtain a copy of the appellant's travel orders, travel vouchers, and/or TDY (temporary duty) orders from the U.S. Army and Joint Services Records Research Center (JSRRC) and/or other appropriate depository relating to the appellant's alleged stopover in Vietnam on his way to his assignment in Vietnam from April 1, 1971. The AOJ was instructed to document all efforts to obtain the records and the responses received and instructed to continue to make efforts to obtain the records until it was reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. The AOJ contacted the JSRRC in May 2013 with the following inquiry "Veteran states that in March 1971, he was reassigned to Thailand. He states the military flight he took to Thailand stopped over at Tan Son Nhut Air Force Base, Vietnam. Please verify." In June 2013 the JSRRC responded, "[w]e researched the available March 1971 historical report submitted by the 8th Tactical Fighter Wing, the higher headquarters of the 8th Combat Support Group, station Ubon Air Force Base, Thailand. The histories did not document that personnel from the Wing were stopped over in Vietnam when en route to Thailand." The AOJ issued a Formal Finding of lack of information required to corroborate the appellant's allegation of exposure to herbicides in Vietnam or Thailand. However, the AOJ did not make any attempts to obtain the appellant's travel orders, travel vouchers or TDY orders, as requested in the remand order. The appellant was also stationed in Thailand from April 1, 1971. Thus, as the inquiry to the JSRRC was limited to March 1971, it may have missed information from April 1, 1971. The Board also requested that the AOJ attempt to verify the appellant's report that he was exposed to herbicides while on guard duty in Thailand. At the September 2012 hearing, the appellant stated that he was at Udorn from approximately September 1971 to February of 1972. See Board Hearing Transcript (Tr.) at p. 11. He stated that he performed perimeter guard duty at Udorn and that there was no vegetation. Tr. at p. 9. A service personnel record indicates that the appellant was stationed at Udorn Royal Thai Air Force Base at that time. In an inquiry to the JSRRC, the AOJ incorrectly noted that the appellant had stated that while he was stationed at Ubon Royal Thai Air Base, he volunteered for guard duty and noticed that the area was devoid of vegetation. As the appellant specifically testified that he had performed guard duty at Udorn, the inquiry was incorrect, and a new inquiry should be made regarding the appellant's service at Udorn Air Force Base. 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 (1998). Thus, the Board must be remanded for full compliance with the December 2012 remand orders. The appellant's claim for entitlement to special monthly compensation based on loss of use of a creative organ is inextricably intertwined with the appellant's claim for entitlement to service connection for prostate cancer, which is being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, the issue of entitlement to special monthly compensation based on loss of use of a creative organ must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the appellant's travel orders, travel vouchers and/or TDY (temporary duty) orders from the U.S. Army and Joint Services Records Research Center (JSRRC) and/or other appropriate depository relating to his alleged stopover in Vietnam on his way to his assignment in Thailand from April 1, 1971. Provide the JSRRC or other depository with the appropriate information, as needed, showing service dates, duties, units of assignment and copies of the appellant's statements. Associate all documents obtained with the claims file. All efforts to obtain these records, and the responses received, must be documented in the claims file. 2. Request the JSRRC to verify the appellant's claim that he may have been exposed to Agent Orange or tactical herbicides while serving on perimeter guard duty from approximately September 1971 to February 1972 at Udorn Royal Thai Air Force Base. See Board hearing transcript at p. 9-11. Any response from the JSRRC should be added to the claims file. 3. Thereafter, readjudicate the issues on appeal of entitlement to service connection for prostate cancer, to include due to exposure to herbicides, and entitlement to special monthly compensation based on loss of use of a creative organ. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). 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). _________________________________________________ MILO H. HAWLEY 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).