Citation Nr: 1513024 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 07-17 131A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert B. Goss, Attorney ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from August 1965 to May 1969. The Veteran died in January 1993. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2011, the Board reopened and remanded the claim for additional development. The Board denied this claim in a July 2012 decision. The Appellant then appealed the Board's July 2012 decision to the United States Court of Appeals for Veterans Claims (CAVC), and in May 2014, the CAVC issued a Memorandum Decision that vacated the July 2012 decision and remanded it back to the Board for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's service records show that he served in Thailand, at the U-Tapao Royal Thai Air Force Base from March 1968 to 1969. The CAVC observed that the M21-1MR reads: The Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. Follow the steps in the table below to verify exposure to herbicides when a Veteran with service in Thailand during the Vietnam Era claims a disability based on herbicide exposure. M21-1 MR, Part IV, Subpt. ii., ch. 2, sec. C, topic 10(q). The CAVC observed that the M21-1 MR first asks, "Did the Veteran serve in the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases?" Id. The CAVC observed that included in the list of qualifying bases is U-Tapao, where the Veteran served. The second part of the question asks if the veteran served on those bases as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or "otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence." Id. If the answer is yes, exposure to herbicides is to be conceded. The CAVC maintained that it did not appear from the record that VA ever answered the second portion of the question with respect to the Veteran. The CAVC noted that it was certainly apparent from the record that the Veteran was not an Air Force security policeman, security patrol dog handler, or member of the security police squadron, as his personnel records repeatedly state that his duties concerned food service. The CAVC recognized, however, that the Appellant contended that the Veteran's duties in food service often took him to the perimeter of U-Tapao. The CAVC maintained that there was simply no evidence in the record that anyone at VA ever determined whether the Veteran's duties took him near the perimeter of the Air Force base in Thailand. The CAVC further observed that the Board relied on the March 2011 Joint Services Records Research Center Response to find that herbicides were not sprayed during the Veteran's service there, but the CAVC found that this finding was contrary to the M21-1 MR directives. There was no indication in the M21-1 MR that only veterans who served in Thailand during the years of active use of herbicides were eligible for the "presumption of exposure." Rather, the M21-1 MR subheading under which the procedures discussed above appear is entitled "Herbicide Exposure in Thailand During the Vietnam Era." M21-1MR, Part IV, Subpt. ii., ch. 2, sec. C, topic 10(q). The CAVC noted that not only does the phrase "Vietnam Era" encompass the years the Veteran demonstrably served in Thailand, see 38 U.S.C. § 101(29)(B); 38 C.F.R. § 3.2(f) (2013), but also nothing in the M21-1MR limits VA's ability to concede exposure to herbicides to only those veterans who served in Thailand during the years of known herbicide use documented in the Memorandum for the Record [1964 and 1965]. In an October 2014 argument that includes attachments showing maps of U-Tapao Airfield, the Veteran's representative asserts that he "is a 21 year veteran, who was a command pilot in the U.S. Air Force." The representative reported that "[f]light kitchens are located on the flight line, to allow the flight crews to obtain meals when stepping to the jet." As noted above, exposure to herbicides may be established on a factual basis if the veteran served on a recognized base near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Service records show that the Veteran served as a senior cook in a "flight kitchen" whose duties included issuing meals to aircrew members. See performance evaluation report for period 1968 to 1969. A medical opinion is to be obtained as ordered by CAVC. In this regard, the Board notes that in a September 2005 letter, Dr. J.M. reported that the Veteran had had longstanding Type II diabetes and that he also had "multiple other medical problems including morbid obesity, hypertension, and he had colon cancer that had been resected as well." Dr. J.M. reported that it was his "understanding [] that the death certificate for [the Veteran] was filled up by J.P. who [was] not a medical person, and the diagnosis of diabetes was not listed as one of the causative factors of his death." Dr. J.M. maintained that "[i]t is not, however, possible to separate the extensive heart disease he undoubtedly had from the diabetes, which over the time is a microvascular and macrovascular disease leading to great increase in risk for cardiovascular events." Dr. J.M. concluded that it was his opinion that the "diabetes mellitus was certainly a causative factor in the [Veteran's] death." The certificate of death lists the immediate cause of death as heart failure due to underlying apnea syndrome. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion regarding the nature and etiology of the Veteran's cause of death from an appropriate physician (M.D.). The claims file [i.e. both the paper claims file and any relevant medical records contained in the electronic file(s)] must be provided to and reviewed by the physician. The physician is requested to provide an opinion as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran had a diagnosis of ischemic heart disease (including, but not limited to acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). Please address Dr. J.M.'s comment that the Veteran had "extensive heart disease" in the September 2005 letter. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's Type II diabetes mellitus (and/or ischemic heart disease (including, but not limited to acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) if appropriate) was EITHER the principal OR a contributory cause of the Veteran's death? In regard to contributory cause of death, the physician should determine whether the diabetes (and/or heart disease if appropriate) (1) involved an active process affecting a vital organ and resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death or was of such severity as to have a material influence in accelerating death, or (2) otherwise caused the death of the Veteran or contributed substantially or materially, combined, aided or lent assistance to cause the death of the Veteran. In so opining, please specifically discuss Dr. J.M.'s September 2005 letter. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. Thereafter, readjudicate the issue on appeal. If any benefit sought remains denied, the Appellant and her representative should be furnished a supplemental statement of the case and be provided with an appropriate period of time to respond. 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 2014). _________________________________________________ TANYA SMITH 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).