Citation Nr: 1416064 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 09-07 007A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for loss of teeth including as secondary to radiation treatment for prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to February 1969. This appeal comes before the Board of Veterans' Appeals Board from September 2007 and November 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the appealed claims by a May 2012 decision. As granted by the United States Court of Appeals for Veterans Claims (Court) in June 2013, a June 2013 Joint Motion for Remand (Joint Motion) vacated the May 2012 decision. The appealed issues return to the Board for actions consistent with the Joint Motion. 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 June 2013 Joint Motion finds that the Board in its May 2012 decision failed to adequately discuss in its reasons and bases the applicability of M21-MR.IV.ii.2.c.10.q, particularly whether procedures as delineated in M21-MR.IV.ii.2.c.10.q were followed regarding potential exposure to herbicide agents while the Veteran was stationed at or near bases in Thailand during the Vietnam Era. This case specifically involves the question of the Veteran's alleged herbicide agents exposure while stationed during service at the Ubon Royal Thai Air Force Base, Thailand (hereinafter, Ubon RTAFB). The Veteran seeks to establish this exposure to qualify for service connection for claimed disabilities based on such exposure. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(m), 3.309(e) (2013). The Board in its vacated May 2012 decision had ruled out the possibility of the Veteran having been exposed to those herbicide agents while stationed in Thailand, based on a finding, in essence, of absence of opportunity for such exposure. The Board then reviewed a VA Compensation and Pension Memorandum for the Record distributed in FAST Letter 09-20 in May 2009 and included in VA Adjudication Manual M-21MR.IV.ii.2.C.10.rr. This VA Compensation and Pension Memorandum for the Record informs of information obtained from the Department of Defense detailing that tactical herbicides were sprayed in Thailand during a five-month period in 1964 at a Thai Army base not near any Royal Thai Air Force base. The Department of Defense study also informed that tactical herbicides were neither stored nor used in Thailand. The Board also reviewed the entire text of the previously classified report prepared by the Air Force as part of Project Contemporary Historical Examination of Current Operations (CHECO) entitled "Base Defense in Thailand" dated 18 February 1973. CHECO report, 58, 73. As the Board noted in its May 2012 decision, this CHECO report detailed herbicide use and other methods used to clear vegetation around bases in Thailand. Service personnel records showed that the Veteran was assigned to the 8th Combat Support Group at Ubon RTAFB from February 1967 to February 1968 with duties as an aircraft refueler. At his June 2009 hearing the Veteran asserted that he worked on a flight line refueling fighter, cargo, and weather aircraft. He then denied handling herbicide, but asserted that he viewed drums of herbicide being loaded on C-130 cargo aircraft and may have been exposed to leaking drums. The Board in its May 2012 decision denied the claim based on the span of years between tactical herbicide spraying in Thailand and the Veteran's stationing in Thailand, the absence of herbicide storage in Thailand, and the absence of other possible exposure of the Veteran to certain (tactical) herbicides as addressed within 38 C F R §§ 3.307(a)(6)(m). The Board notes that the provisions of the VBA Adjudication Manual, M21-MR, provide certain development procedures for claims for herbicide exposure in Thailand, for those serving at certain the Royal Thai Air Force Bases (RTAFBs) including at Ubon, Takhli, and Korat. See M21-MR.IV.ii.2.c.10.q. The provisions of the M21-MR do not have the force of law and are not binding on the Board unless the Court specifically determines that the provision(s) at issue are substantive in nature. The Court has not reached this determination with respect to the M21-MR provision at issue here. In other words, there is no published, precedential decision of the Court which holds that M21-R.IV.ii.2.c.10.q, is a substantive rule which is binding on the Board. Notwithstanding the Board's prior careful analysis in its May 2012 decision and the non-binding nature of the M21-MR provisions in question, the Joint Motion determined that the Board's May 2012 decision was deficient for failure to discuss these M21-MR.IV.ii.2.c.10.q provisions and specifically failure to discuss whether the guidelines contained therein for confirming alleged exposure to herbicides while stationed in Thailand were followed. In an excess of caution in the face of the Joint Motion, the Board concludes that the prudent course for the Board, to avoid further joint motions for remand ordering additional process concerning M21-MR.IV.ii.2.c.10.q, is to remand the case for procedural development as directed within M21-MR.IV.ii.2.c.10.q. The Board notes that VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency. See 38 C.F.R. § 3.159(c)(2) (2012). VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. See Id. If identified records cannot be obtained, the Veteran must be properly notified. 38 C.F.R. § 3.159(e) (2012). After the M21 provisions are followed, and any evidence regarding exposure is obtained, VA will be in a better place to address the claim for service connection for prostate cancer and the claim for service connection for loss of teeth, including as secondary to radiation treatment for prostate cancer. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran again to clarify his dates of stationing, places of stationing, duties, and activities while in service and stationed in Thailand. In addition, he should again be asked to provide any specific information he has concerning avenues or potential avenues of his exposure to herbicide agents in service. The Veteran should also be afforded the opportunity to submit additional evidence or argument in furtherance of his claims. 2. Based on all available information, attempt to verify the whether the Veteran was exposed to herbicides in Thailand (to include at Ubon RTAFB) through the U.S. Army Joint Services Records Research Center (JSRRC), in accordance with M21-MR.IV.ii.2.c.10.q. All applicable provisions within M21-MR.IV.ii.2.c.10.q should be followed. The Veteran should be notified of any negative results of these efforts. All notice provided, requests made, actions taken, and records and responses received must be carefully documented in the record. 3. After the development requested above has been completed to the extent possible, the record should again be reviewed, and the agency of original jurisdiction should re-adjudicate the matters on appeal. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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. 2013). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2013).