Citation Nr: 1446830 Decision Date: 10/22/14 Archive Date: 10/30/14 DOCKET NO. 05-36 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant, T.H., and J.T. ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1969. He died in September 2004. His widow is the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, denying service connection for the cause of the Veteran's death. The appellant testified, T.H., and J.T. testified at a hearing at this RO before the undersigned in November 2007. In March 2008 and January 2010, the Board remanded for additional development. In September 2011, the Board denied service connection for the cause of the Veteran's death. The appellant once again appealed this adverse determination. In February 2013, the United States Court of Appeals for Veterans Claims (Court) issued an Order granting a Joint Motion for Remand (Joint Motion) filed earlier that month. This Joint Motion called for the Board's decision to be vacated and this matter to be remanded back to the Board. As such, it is before the Board anew for readjudication. Review of the Veteran's paper and electronic claims files reveals that readjudication cannot occur yet, however. This matter accordingly is REMANDED for additional development. REMAND The Veteran's September 2004 Certificate of Death lists his immediate cause of death as head and neck cancer with metastases. Squamous cell cancer of the larynx and basal cell cancer of the lower lip were listed as underlying causes of his death. The appellant contends that these causes resulted from the Veteran's exposure to herbicides while stationed at Eielson Air Force Base (AFB) from January 1968 to July 1969. She recounts that he maintained and cleaned aircraft, to include inside and out, there that transported the herbicide Agent Orange to Vietnam. He recounted the same while he was alive. In the alternative, the appellant contends that the causes of the Veteran's death resulted from his exposure to environmental toxins at Eielson AFB or to excessive sun exposure/damage while stationed in Oklahoma from January 1966 to January 1968. She submitted information from the Environmental Protection Agency (EPA) regarding toxins at Eielson AFB. Although the delay entailed by this remand is regrettable, undertaking additional development prior to Board readjudication of this matter is the only way to ensure that the appellant is afforded every possible consideration. She must be afforded such consideration. VA indeed has a duty to assist her in substantiating her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). This duty includes following applicable evidentiary procedures of the VA Adjudication Manual (M21-1MR). Campbell v. Gover, 14 Vet. App. 142 (2000); Patton v. West, 12 Vet. App. 272 (1999). It also includes otherwise making reasonable efforts to procure necessary evidence such as obtaining a medical opinion. 38 U.S.C.A. § 5103A(a)(1) (West 2002); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). The Board, before denying the appellant's claim, preliminarily determined in its September 2011 decision that the duty to assist the appellant had been satisfied. This determination was deemed inadequate in the Joint Motion. Two points were raised in this regard. First, it was pointed out that the Board did not address whether provisions of the M21-1MR related to possible herbicide exposure during service but outside of Vietnam were followed. That these provisions do not "appear" to have been followed was noted. Second, it was pointed out that the Board did not address whether additional information from the EPA regarding toxics at Eielson AFB was needed. Compliance with the Court, to include the terms of a Joint Motion, is mandatory. Forcier v. Nicholson, 19 Vet. App. 414 (2006). As such, the Board must provide an adequate discussion of whether the duty to assist has been satisfied that encompasses the aforementioned. The only determination possible in a Board decision readjudicating the appellant's claim is that the duty to assist has been satisfied. Determining that it has not been satisfied means that a remand is needed for further development. This is the course undertaken herein given the Joint Motion. The provisions of M21-1MR related to possible herbicide exposure during service but outside of Vietnam are to be followed. These provisions are located at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.o and are set forth herein for the sake of clarity. Information as to the approximate dates, location, and nature of the alleged exposure is already known here. An email containing this information and a request to review the Department of Defense (DoD) inventory of herbicide operations to determine whether there was exposure as alleged must now be sent to the Compensation and Pension (C&P) Service. If the C&P Service does not confirm the alleged exposure and the information known is sufficient to permit a search by the Joint Services Records Research Center (JSRRC), a request for confirmation must be sent there. A formal finding must be issued if there is insufficient known information to permit a JSRRC search. Also, a request must be sent to the EPA and any other appropriate source for more information regarding toxics at Eielson AFB-including data on which toxics have been found, where they were found, and when and how there may have been exposure to them. A decision must then be made as to whether the Veteran was exposed to herbicides and/or to any environmental toxins in service. No medical opinion is necessary if it is determined that there was no such exposure. If it is decided that there was such exposure, regardless of the type, a medical opinion must be obtained. There are criteria for when such opinions are necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). However, they apply only to disability compensation claims and thus are not for consideration here. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). That the Board cannot determine whether the causes of the Veteran's death are related to herbicide exposure and/or exposure to one or more environmental toxins without a medical opinion is clear notwithstanding the absence of criteria to be taken into account in this regard. The Board is prohibited from rendering its own opinion on a medical question. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Whether a condition which is a cause of death is attributable to an exposure is a medical question. The complexities involved with exposures, the several potential risk factors for the causes of death (previously noted by the Board to include a smoking history and family cancer history), and the number of years that passed between the exposure and manifestation of the causes of death are of import. Accordingly, a REMAND is directed for the following: 1. Email C&P Service of the Veteran's alleged herbicide exposure while stationed at Eielson AFB from 1/68 to 7/69 due to maintaining and cleaning (inside and out) aircraft that transported herbicide to Vietnam. Ask DoD to review the inventory of herbicide operations to determine if he was exposed as alleged. Place a copy of the email and response received in the paper or electronic claims file. 2. If the C&P Service does not confirm the Veteran's alleged exposure, determine if the aforementioned information is sufficient to permit a search by the JSRRC. Send a request for confirmation of the alleged exposure there if it is sufficient. Issue a formal finding if it is insufficient. Place a copy of the request along with the response received or the formal finding in the paper or electronic claims file. 3. Send a request to the EPA as well as to any other appropriate source for more information regarding toxics at Eielson AFB. This includes information on which toxics have been found, precisely where they were found to include whether it was a populated or unpopulated portion of the base, as well as when and how those on base may have been exposed to them. Place a copy of each request along with each response received in the paper or electronic claims file. 4. After completion of the above, undertake any other necessary development. This includes, at a minimum, determining whether the Veteran at least as likely as not was exposed to herbicides and/or to any environmental toxins during service. If and only if it is determined that there likely was such exposure, regardless of the type, make arrangements for a qualified medical professional to provide an opinion to be placed in the paper or electronic claims file. This professional specifically shall review the Veteran's paper and electronic claims files and then state whether it is at least as likely as not (50 percent or greater probability) that any of his causes of death are due to the aforementioned exposure. A clear and complete rationale (explanation) supporting the opinion is required. As such, medical principles should be discussed as they relate to the medical and lay (non-medical) evidence. Use of medical literature is encouraged, but a copy or a least a citation of it should be included. 5. Finally, readjudicate this matter. Furnish the appellant and her representative with a rating decision if the determination made is favorable. If it is unfavorable, furnish them with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond before processing for return to the Board. Place a copy of the rating decision or SSOC in the paper or electronic claims file. No action is required of the appellant until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). She also is advised that she has the right to submit additional evidence and argument concerning this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that remands by the Board and the Court be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). This remand is in the nature of a preliminary order and does not constitute a decision by the Board. 38 C.F.R. § 20.1100(b) (2013).