Citation Nr: 1336306 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-32 273 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to service connection for prostate cancer, claimed as due to exposure to ionizing radiation and/or herbicides. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from August 1956 to July 1959, and from March 1961 to November 1969. He also had service in Thailand from July 1966 to July 1967. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2009 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for prostate cancer. This determination was confirmed in a June 2010 rating decision. In June 2011, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in September 2011 and the Veteran filed a substantive appeal (via a statement submitted in lieu of a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2011. In August 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the claims file. The Veteran was also provided a copy of his hearing transcript, at his request, in May 2013. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals additional adjudicatory documents, including a hearing transcript. For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board's review of the claims file reveals that further RO action on the claim for service connection for prostate cancer is warranted. Initially, the Board notes that the Veteran submitted additional evidence in support of his appeal in April 2013, after the issuance of the September 2011 statement of the case (SOC). Neither the Veteran nor his representative has waived initial RO consideration of this evidence. See 38 C.F.R. § 20.1304 (2013). However, as the Veteran's claim is being remanded for further development, as discussed below, the RO will have an opportunity to consider this evidence on remand. The Veteran contends that his prostate cancer was caused by his exposure to ionizing radiation as a participant in Operation PLUMBBOB. In the alternative, he argues that he was exposed to herbicides in Thailand while installing telephone and cables lines along the base perimeters. He stated that he was stationed at the Korat Royal Thai Air Force Base (RTAFB) but that he had temporary duty assignments at Nakhon Phanom, Udorn, the Green Hill Radar Sight, Camp Friendship and U-Tapao. Service personnel records confirm that the Veteran served as a wire workload controller and as an outside wire and antenna maintenance specialist while stationed in Thailand. The Board notes that VA's Adjudication Procedures Manual, M21-1MR, notes that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era. See M21-1MR at IV.ii.2.C.10.qq. Therefore, a request should be sent to Joint Services Records Research Center (JSRRC) for any information that Compensation Services could not provide to corroborate any claimed exposure in an effort to verify the Veteran's exposure to herbicides consistent with his service in Thailand. In addition, the Board notes that the Veteran's service personnel file may include potentially pertinent evidence as it may detail his in-service duties. Thus, to the extent that the Veteran has alleged that his duties required him to work along the base perimeter, the Veteran's service personnel records may document such exposure. As VA has yet to request the Veteran's complete service personnel file, such should be accomplished on remand. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Sacramento California, and that records from that facility dated through November 2009 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain all records of pertinent treatment from the Sacramento VAMC (since November 2009) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the last adjudication of the claim (to include evidence submitted directly to the Board without a waiver of initial RO consideration). Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain the Veteran's complete service personnel file. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain from the Sacramento VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran related to his prostate cancer or its residuals, dated since November 2009. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Also clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After records and/or responses received have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, send a request to JSRRC in an effort to verify the Veteran's exposure to herbicides consistent with his service in Thailand, to include at Korat RTAFB, from July 1966 to July 1967. JSRRC should be provided with any necessary documentation, to include any relevant service records as well as any statements submitted by the Veteran, detailing any duties that required him to be at or near the base perimeters. JSRRC's response should be documented in the claim file. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority, to particularly include all that added to the record since the RO's last adjudication of the claim. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).