Citation Nr: 1525063 Decision Date: 06/11/15 Archive Date: 06/19/15 DOCKET NO. 13-32 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to August 1973. He died in January 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND This claim must be remanded for further development to ensure it is afforded every due consideration, and to aid the Board in making an informed decision. The appellant contends that the lung cancer from which the Veteran died (as reflected in the January 2008 Certificate of Death) was caused by herbicide exposure from contact with the base perimeter at the U-Tapao or Udorn Royal Thai Air Force Bases (RTAFB) in 1971 and 1972. Lung cancer is a disease that has been associated with exposure to tactical herbicides such as Agent Orange used during the Vietnam Era, and for which a presumption of service connection is available based on such exposure. See 38 U.S.C.A.§§ 1112, 1116 (West 2014); 38 C.F.R. §§ 3.307(a)(6) 3.309(e) (2014). Under the VA Adjudication Procedures Manual (M21-1MR), Part IV, Subpt. ii, ch. 2, sec. C, topic 10(q), when there is credible evidence of service near the base perimeter of one of the listed RTAFB's, including the two bases where the Veteran was stationed, herbicide exposure will be found. See VA Compensation Services "Memorandum for the Record: Herbicide Use in Thailand During the Vietnam Era" (noting that there was sporadic use of non-tactical (commercial) herbicides within fenced perimeters of RTAB's, and thus if a Veteran's duties regularly took him or her to the base perimeter, there was a greater likelihood of exposure). Further development is warranted under the procedures set forth in M21-1MR.IV.ii. 2.C.10.q. To better assess whether the Veteran had service at the perimeter of the base, the Air Force or other appropriate entity should be contacted for any information as to whether his duties involved going to the base perimeter. In this regard, performance review reports show that from September 1971 to July 1972, the Veteran's duties as a supply clerk included delivering items to sixty maintenance shops around U-Tapao RTAB. The appellant should also be requested to provide any additional information about the approximate dates, location, and nature of the alleged herbicide exposure. Notably, the appellant is also a Veteran and served on active duty with her husband. She may thus have pertinent information as a first-hand witness. Based on the information provided by the appellant, a request must be made to the Joint Services Records and Research Center (JSRRC) for verification of exposure to herbicides. See id. If the appellant does not provide sufficient information to attempt verification via the JSRRC, a memorandum for the record must be made to this effect in accordance with M21-1MR. Finally, whether or not the AOJ finds that herbicide exposure is established, in order to help avoid the possibility of another remand should the Board ultimately find in favor of such exposure, a VA opinion must be obtained to assess whether there is affirmative evidence that the Veteran's cancer was due to smoking rather than herbicide exposure. In this regard, presumptive service connection for an herbicide-related disease will only be established if the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Under these provisions, when there is evidence which in sound medical reasoning and in the consideration of all evidence of record supports a conclusion that the disease was not incurred in service, such as an intercurrent disease or injury which is a recognized cause of the disease or disability in question, then the presumptive provisions of § 3.309 will be rebutted by "affirmative evidence to the contrary." 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). In this case, a November 2007 private treatment record reflects that when cancer of the right femur was found, a CT scan of the chest was also performed due to the Veteran's history of smoking and the possibility of a metastatic malignancy process. The CT scan showed a left upper lobe mass. The physician found that "based on [the Veteran's] extensive smoking history and his thoracic findings by x-ray . . . he likely has metastatic nonsmall cell lung cancer" (emphasis added). A December 2007 private treatment record reflects that the Veteran smoked two packs of cigarettes per day for forty-three years. An October 2013 letter from Dr. D. Nibel, who had treated the Veteran's cancer, states that the Veteran's smoking history "undoubtedly contributed to his lung cancer," although Dr. Nibel also noted that exposure to herbicides "cannot be ruled out as a causative factor." Thus, even if herbicide exposure is established, the Board is not free to disregard this evidence or the provisions of § 3.307(d). See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (VA has discretion to arrange for a medical examination or opinion when necessary to make an informed decision). Accordingly, the case is REMANDED for the following action: 1. Request the appellant to provide any additional information about the approximate dates, location, and nature of the alleged herbicide exposure. Notably, the appellant served on active duty with her husband and may have pertinent first-hand information on this issue. 2. The appellant should also be invited to obtain and submit an explanation from Dr. D. Nibel as to why herbicide exposure may have caused the Veteran's cancer, as stated in the October 2013 letter. 3. Contact the Air Force or other appropriate entity (as determined by the AOJ within its discretion) for any information as to whether the Veteran's duties as a bench stock resupply and delivery clerk at U-Tapao Royal Thai Air Force Base from September 1971 to July 1972 would have involved going to the base perimeter. In this regard, performance review reports show that the Veteran's duties included delivering items to sixty maintenance shops around the U-Tapao base. 4. Based on the information provided by the appellant, a request must be made to the Joint Services Records and Research Center (JSRRC) for verification of exposure to herbicides. See id. If the appellant does not provide sufficient information to attempt this verification, a memorandum for the record must be made to this effect in accordance with M21-1MR. 5. Then, whether or not herbicide exposure is found, obtain a VA opinion addressing the likelihood that the Veteran's metastatic lung cancer and lymphoma of the right hip were caused by herbicide exposure as opposed to his history of smoking (the record shows that he smoked two packs per day for 43 years). For the purposes of the opinion, herbicide exposure should be assumed by the clinician. The claims file must be made available for review. A complete explanation must be provided. 6. Then, review the claims file and ensure that all requested development actions have been completed in full. If the VA opinion does not adequately respond to the above remand directives, it must be returned to the clinician for corrective action. 7. Finally, after completing any other development that may be indicated, readjudicate the claim on the merits. If the benefits sought are not granted, the appellant and her representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board. The appellant 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. 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 2014). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).