Citation Nr: 1333093 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 05-29 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for prostate cancer, with residuals of erectile dysfunction and incontinence, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from May 1970 to May 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of a Department of Veterans Affairs (VA), Regional Office (RO), that, in pertinent part, denied service connection for prostate cancer, with residuals of erectile dysfunction and incontinence, to include as due to Agent Orange exposure. In October 2009, the Veteran testified at a personal hearing over which the undersigned Acting Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in December 2009 and July 2011 at which time it was remanded for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The Board has reviewed such documents in consideration of the issue on appeal. 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 After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development of the record. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). This case was previously remanded by the Board in July 2011, partly for the AMC/RO to comply with the evidentiary development noted in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(p), (n), and (q). The Board specifically indicated that the AMC/RO must request verification of the Veteran's alleged Agent Orange exposure from the United States Army and Joint Services Records Research Center (JSRRC), to include consideration of his contention that he was aboard a C-130 aircraft in October 1972 that was en route to Thailand and that stopped in Vietnam. Pursuant to the July 2011 remand, in August 2011, the AMC/RO contacted the Air Force Historical Research Agency and requested that they attempt to verify whether the Veteran's unit, the 388th Field Maintenance Squadron, which was stationed at the Korat Royal Thai Air Force Base, was aboard a C-130 aircraft that was en route to Thailand and that stopped in Vietnam in October 1972. In an August 2011 response, the Air Force Historical Research Agency indicated that there were no wholesale unit moves from Vietnam to Thailand in October 1972. The Air Force Historical Research Agency indicated that in order to verify if the Veteran was on an aircraft that stopped in Vietnam on the way to Thailand, the actual unit that was flying the aircraft would be necessary. The Air Force Historical Research Agency maintained that if the flying unit was not provided, research could not be conducted. Subsequently, in August 2011, the AMC/RO notified the Air Force Historical Research Agency that the unit was the 388th Field Maintenance Squadron, which was stationed at the Korat Royal Thai Air Force Base. In an August 2011 response, the Air Force Historical Research Agency indicated that the 388th Field Maintenance Squadron did not move from "somewhere" and stop in Vietnam on its way to Thailand in October 1972. The Air Force Historical Research Agency indicated that the 388th Field Maintenance Squadron had been at Korat Royal Thai Air Force Base since April 1966. The Board observes that the AMC/RO requested that the Air Force Historical Research Agency verify that the Veteran's entire unit stopped in Vietnam on the way to Thailand in October 1972. However, the Veteran reported that when he was en route to Thailand in October 1972, he was aboard a C-130 plane that stopped in Vietnam. He stated that passengers aboard the aircraft were taken to the terminal to wait for about an hour while the aircraft's was refueled and the cargo was handled. The Veteran has not asserted that his entire unit, the 388th Field Maintenance Squadron, was on the C-130 plane that landed in Vietnam on its way to Thailand. Additionally, the AMC/RO did not attempt to verify the Veteran's alleged Agent Orange exposure through the JSRRC, as requested pursuant to the July 2011 remand. The RO also did not refer the case to a JSRRC coordinator to make a formal finding whether sufficient information required to verify Agent Orange exposure was provided. The AMC/RO solely contacted the Air Force Historical Research Agency. A remand by the Board confers upon a Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the development requested pursuant to the July 2011 Board remand has not been accomplished, the Board has no choice but to again remand the Veteran's claim for the AMC/RO to comply with the evidentiary development noted in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(p), (n), and (q), and to specifically request verification of the Veteran's alleged Agent Orange exposure from the JSRRC, to include consideration of his contention that he was aboard a C-130 airplane in October 1972 that was en route to Thailand and that stopped in Vietnam. Additionally, the Board notes that the Veteran's complete personnel file is not of record. Further, there is no indication that the Veteran's entire Official Military Personnel File (OMPF), to include the Veteran's Special Orders, has been requested in an attempt to verify the Veteran's reports that when he was en route to Thailand in October 1972, he was aboard a C-130 plane that stopped in Vietnam. At the October 2009 Board hearing, the Veteran also alleged that he was on two airplane trips that landed at an air base in Vietnam, which respectively took him to and from Thailand. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2013). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, an attempt should be made to obtain the Veteran's entire OMPF. Finally, the Board notes that the Veteran was last issued a Supplemental Statement of the Case addressing the issue of entitlement to service connection for prostate cancer, with residuals of erectile dysfunction and incontinence, to include as due to Agent Orange exposure, in January 2011. The Board observes that subsequent to the issuance of the January 2011 Supplemental Statement of the Case, additional medical evidence was obtained, to specifically include a November 2011 VA prostate cancer examination report, with etiological opinions. The Board notes that the Veteran has not submitted a waiver with regard to initial RO consideration of the additional medical evidence. In fact, in a September 2013 informal hearing presentation, the Veteran's representative indicated that the case was not yet ready for appellate review because the AMC/RO failed to comply with the Board's July 2011 remand instructions. The Veteran's representative specifically indicated that the claims file did not contain an appropriate Supplemental Statement of the Case. Thus, the case must be remanded for initial RO consideration of the evidence and for a supplemental statement of the case. 38 C.F.R. 20.1304 (2013); See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following: 1. The AMC/RO shall contact the National Personnel Records Center (NPRC), or any other appropriate service department offices, to obtain the Veteran's entire Official Military Personnel File (OMPF), including all records of his assignments, whether permanent or temporary duty stations; all travel orders; and pay stubs that reflect special pay status, travel vouchers, dislocation allowance, and any TDY orders. Efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record. 2. The AMC/RO must comply with the evidentiary development noted in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(p), (n), and (q). Specifically, the AMC/RO must request verification of the Veteran's alleged Agent Orange exposure from the U.S. Army and Joint Services Records Research Center (JSRRC), to include consideration of his contention that he was aboard a C-130 airplane in October 1972 that was en route to Thailand and that stopped in Vietnam. The JSRRC shall also be asked to provide the histories of the Veteran's unit during the time he was in Thailand and/or Vietnam. 3. The AMC/RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it must be undertaken prior to further claims adjudication. If the appeal is returned to Board without compliance of the Remand directives, another remand will likely result. Stegall, 11 Vet. App. at 271. 4. The AMC/RO will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, he and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time shall be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims remanded by the Board or the Court 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).