Citation Nr: 1337211 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-02 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for prostate cancer due to herbicide exposure. 2. Entitlement to service connection for diabetes due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from August 1961 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran seeks service connection for prostate cancer and diabetes due to herbicide exposure. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. 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 The evidence of record clearly demonstrates that the Veteran served in Thailand during his active duty service. In addition to his various statements wherein he detailed his active duty service at the Air Force base in Takhli, Thailand, the Veteran's DD 214, and the Veteran's performance report for his Air Force Commendation medal clearly show the Veteran was served at the Takhli Air Force Base in Thailand. As such, his presence at Korat and Takhli Air Force Bases is confirmed. The Veteran claims that he was exposed to herbicidal agents during his active duty service the Takhli Air Force Base. Based on this alleged exposure, the Veteran asserts that he is entitled to service-connection for prostate cancer, and diabetes disease on a presumptive basis. Regulations provide that if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for prostate cancer, and type two diabetes. 38 C.F.R. § 3.309(e) (2013). Additionally, VA's Compensation & Pension Service has issued information concerning the use of herbicides in Thailand during the Vietnam War. According to a May 2010 bulletin, Compensation & Pension Service determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand, a practice that was intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although the Department of Defense indicated that the herbicide used was commercial in nature, rather than tactical (such as Agent Orange), Compensation & Pension Service has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. ("M21-1MR"). Given this information, Compensation & Pension Service has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, Compensation & Pension Service stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identified several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. As such, Compensation & Pension Service indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. This applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). Based on the above, the salient issue with respect to the Veteran's claim of entitlement to service connection for prostate cancer and diabetes is whether his active duty service at the Takhli Air Force base involved him being on or near the perimeter of those bases. The evidence of record demonstrates that the Veteran served as a Munitions System Supervisor at the Takhli Air Force Base in 1972 and 1973. The Veteran stated that the munitions area where he spent nearly twelve hours a day was twenty-five feet from the perimeter of the base. The Veteran also stated that he volunteered for safety patrol and walking the perimeter on numerous occasions. The only personnel record associated with the claims file is the Veteran's performance report for his Air Force Commendation Medal. No other service personnel records have been associated with the claims file. As such, in order to satisfy VA's duty to assist, the Board finds that a remand is required in order for the RO to undertake efforts to obtain all of the Veteran's service personnel records. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to contact the appropriate authorities and attempt to secure the Veteran's complete service personnel records. If no additional records are available, that fact should be documented, in writing, in the record, and the Veteran should be provided notice of that fact. 2. A request also should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for any information it can provide to corroborate the Veteran's claimed exposure to Agent Orange exposure while the Veteran was stationed at Takhli, in Thailand from July 1972 to August 1973. In particular, the JSRRC should attempt to verify that whether the Veteran's military occupational specialty as a munitions system supervisor would have placed him near the perimeter of the base. If possible, along with the request, the RO should request any aerial photograph or map of Takhli Air Force Base and ask JSRRC to identify the munitions dump in relation to the perimeter of the base. 3. Thereafter, the RO should produce a formal memorandum for the file documenting efforts to obtain information regarding Agent Orange exposure. 4. The RO should re-adjudicate the Veteran's claim on appeal, taking into consideration all of the relevant evidence of record and the guidance provided in VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. ("M21-1MR") concerning exposure to herbicidal agents at Air Force bases in Thailand. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).