Citation Nr: 1452257 Decision Date: 11/25/14 Archive Date: 12/02/14 DOCKET NO. 07-05 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a colon disability, to include as a result of exposure to radiation and/or herbicides. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from September 1959 to January 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before a Decision Review Officer (DRO) in December 2007. In June 2009, he testified at a Travel Board hearing before the undersigned at the Huntington, RO. Transcripts of both hearings are of record. In August 2009, and again in February 2013, the Board remanded the claim for further development. Still further development is required to ensure that VA has satisfied its duty to assist the Veteran in his appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, although it will result in additional delay in adjudicating this appeal, a remand is required to ensure compliance with the Board's prior February 2013 remand directives. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. 38 U.S.C.A. § 5103A(d) (West 2002); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran asserts that he served on a top secret mission in Thailand during the summer of 1966 and was stationed at Ubon Udom and Nakhon Phanom (NKP) Air Force bases, where he was exposed to herbicides. See May 2005 and August 2011 supporting statements; see also December 2007 DRO hearing transcript, at p. 3. Available service personnel records (SPRs) reflect he had "Top Secret" clearance and that he had 57 days of service in Southeast Asia from June to July 1966, but do not specifically indicate whether this service was in Thailand. The Board's February 2013 remand directed the AOJ to verify whether the Veteran served in Thailand during active service; second, to additionally undertake any necessary action pursuant to M21-1MR, Part IV, Subpart ii, 2.C.10.q to verify whether the Veteran was exposed to herbicides during his service in Thailand; and only if such exposure was established, to additionally arrange for a medical opinion on the possibility of direct service connection. On remand, the AOJ did not attempt to verify Thailand service and potential exposure to herbicides during Thailand service. The requested factual development and determination of herbicidal exposure in Thailand is crucial in furthering the Veteran's claim for direct, as opposed to presumptive, service connection for a colon disability. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). Such should be remedied on remand. See Stegall, supra. Accordingly, the case is REMANDED for the following action: 1. Verify whether the Veteran served in Thailand during active service, to include during the identified period of service in Southeast Asia between June and July 1966. 2. If and only if service in Thailand is established, undertake any necessary action pursuant to M21-1MR, Part IV, Subpart ii, 2.C.10.q to verify whether the Veteran was exposed to herbicides during his service in Thailand. 3. If and only if it is determined that the Veteran was exposed to herbicides during service in Thailand, forward the claims folder to a qualified examiner for the purpose of providing a medical opinion. The examiner should be requested to review the claims folder and address the following: Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed colon disability is attributable to service, to include conceded herbicide exposure therein? No examination of the Veteran is necessary, unless the examiner determines otherwise. The rationale for any opinions, with citation to relevant medical findings, must be provided. If the examiner cannot provide the requested opinion without resort to speculation, he or she should expressly indicate this and explain why an opinion cannot be made without speculation. Thereafter, the issue on appeal should be readjudicated. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Sonnet Bush 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).