Citation Nr: 1535597 Decision Date: 08/19/15 Archive Date: 08/31/15 DOCKET NO. 10-17 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served in the Marine Corps from June 1956 to February 1961, and the Air Force from February 1961 to July 1986. He died in March 2007 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in New Orleans, Louisiana, currently holds jurisdiction over the claim. In a VA Form 9 (Appeal to the Board of Veterans' Appeals) received in April 2010, the appellant requested a Board hearing before a Veterans Law Judge sitting at the RO. However, she withdrew this hearing request in a written statement received in March 2012. 38 C.F.R. § 20.704(e) (2015). In April 2014, the Board denied the claim of entitlement to service connection for the cause of the Veteran's death. The appellant appealed such decision to the United States Court of Appeals for Veterans Claims (Court). On June 30, 2015, the Court remanded the appeal to the Board pursuant to the terms of a June 2015 Joint Motion for Remand (JMR). In addition to a paper claims folder, the record on appeal includes documents stored electronically in the Veterans Benefits Management System (VBMS) and Virtual VA. In pertinent part, the June 2015 Court order, the June 2015 JMR and a July 2015 Post-Remand Brief are located in VBMS. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The appellant seeks to establish service connection for the cause of the Veteran's death. He died in March 2007. His death certificate lists the immediate cause of death as obstructive pneumonia due to metastatic carcinoma to the thoracic spine due to carcinoma of the lung. The medical records associated with the claims folder identify lung cancer as the primary malignancy. The record reflects multiple theories of potential entitlement to service connection. The appellant primarily argues that the Veteran's lung cancer should be presumptively service-connected as a result of herbicide exposure in service. See 38 C.F.R. § 3.309(e) (listing respiratory cancers, including cancer of the lung, as a disease associated with exposure to certain herbicide agents). See also Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober 120 F. 3d. 1239 (Fed. Cir. 1997); writ of cert den. 522 U.S. 1151, 140 L Ed. 2d 181, 118 S. Ct. 1171 (1998) (presumptive service connection refers to the primary cancer site and not a metastatic site). In this regard, the appellant alleges that the Veteran's herbicide exposure occurred by stepping foot in Vietnam during the Vietnam Era. In support of her claim, the appellant has presented witness statements recalling the Veteran's statements of being sent onsite in Vietnam to repair airplane communication equipment. See Witness Statements received in April and May 2009. The Veteran's service personnel records (SPRs) reflect that he was considered an expert technician in airborne communications equipment. Prior to overseas service during the Vietnam War, he had a history of temporary duty orders (TDYs) to different locations in the United States to troubleshoot equipment malfunctions. See, e.g., Performance Report for the time period from December 1966 to June 1967. During the Vietnam War, the Veteran had duty assignments at Udorn Royal Thai Air Force Base (RTAFB), U-Tapao Air Force Base (AFB) and Clark Air Base (AB). A Performance Report from Udorn RTAFB, covering the time period from March 2, 1968 to June 20, 1968, notes that strict security measures prevented a complete and detailed account of the Veteran's activities. A Performance Report from Clark AB, covering the time period from March 4, 1969 to November 30, 1969, notes that the Veteran logged over 500 hours flying maintenance support of aircraft. However, there is no mention in the SPRs that the Veteran set foot in Vietnam. Notably, in December 2009, the National Personnel Records Center (NPRC) informed the appellant that there were no available travel orders pertaining to the Veteran's Air Force service. Even so, the Board finds that the AOJ should seek verification from the Joint Services Records Research Center (JSRRC) as to whether the allegations of the Veteran flying to the Vietnam mainland for the purpose of repairing airborne communications equipment is consistent with his known MOS and units of assignment at Udorn RTAFB, U-Tapao AFB, and Clark AB during the Vietnam War. The appellant also asserts that the Veteran had herbicide exposure during his military service at Udorn RTAFB and U-Tapao AFB. The Veteran's SPRs document his service at Udorn RTAFB from June 6, 1967 to June 20, 1968. His duties included serving as an airborne radio repairman and being a technical advisor to foreign nationals on maintenance problems related to airborne communications. He served at U-Tapao AFB from June 22, 1974 to June 17, 1975. His duties included coordinating and managing in-shop and flight-line repairs as well as being an assistant ground operator. VA's Adjudication Procedures Manual, M21-1, notes that 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 during the Vietnam era, to include Udorn and U-Tapao. See M21-1, Part IV.ii.1.H.5. Further direction indicates that, if a Veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure is acknowledged. Here, the appellant has submitted a partial reference map of U-Tapao Airfield showing the locations of various military buildings. The upper edge of the reference map lists "FLIGHT LINE." However, this reference map does not provide the location of the runway or otherwise depict the proximity of the flight line and ground operations building to the perimeter of the airfield base. The record does not include any information concerning the proximity of the Veteran's workplace duties to the perimeter of Udorn RTAFB. Based upon the above, the Board finds that the case should be referred to JSRRC for verification of the Veteran's exposure to herbicides while serving in Thailand. In this regard, the Board finds that the record indicates that the Veteran served at Udorn RTAFB from June 6, 1967 to June 20, 1968, and U-Tapao Air Force Base from June 22, 1974 to June 17, 1975. His duties at both air bases involved in-shop and flight-line airborne equipment repair. At U-Tapao AFB, the Veteran also served as an assistant ground operator. Therefore, the Board finds that a remand is necessary in order for the AOJ to send a request to JSRRC in an effort to verify the Veteran's exposure to herbicides consistent with his service in Thailand. The appellant has recently asserted that the Veteran was exposed to herbicides as a result of performing maintenance duties on C-123 aircraft used in spraying tactical herbicides during Operation Ranch Hand. In June 2015, VA published an interim rule establishing a presumption of exposure to certain herbicides for Veterans who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray a herbicide agent (Agent Orange) during the Vietnam era and later develop an Agent Orange presumptive condition. 80 Fed. Reg. 35246-01 (June 19, 2015) (currently codified at 38 C.F.R. § 3.307(a)(6)(v) (2015). Notably, the designation of "UC-123" indicates that the particular aircraft was equipped with spray apparatus. See Institute of Medicine, National Academy of Sciences, Post-Vietnam Dioxin Exposure in Agent Orange Contaminated C-123 Aircraft 10 (2015). VA has also published a list of military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. Here, the Veteran's SPRs do not document his work on any UC-123 aircraft. The appellant has provided a list of Air Commando and Special Operations aircraft used at major bases during the Vietnam War which specifically lists "UC-123B/K Ranch Hand" aircraft based at Bien Hoa, but no C-123 aircraft are listed at Udorn or U-Tapao. The Veteran's units of assignment are also not listed among those currently recognized in VA's current list of military personnel who had regular and repeated exposure to contaminated ORH C-123s. Nonetheless, the claims processing procedures for C-123 exposure claims appear to be in the process of development. See M21-1, Part IV.ii.1.H.3. This issue should be reviewed for development and adjudication by the AOJ in the first instance. The Board next observes that it must review all issues and theories that are reasonably raised by the claimant or the evidence of record even if not specifically alleged by the claimant. Robinson v. Peake, 21 Vet. App. 545 (2008) aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). During his lifetime, the Veteran claimed that his lung cancer was due to asbestos exposure during service. In particular, he alleged that, from 1957 to 1960, he worked on aircraft whose cables and insulations were made of asbestos. See VA Form 21-526 (Veteran's Application for Compensation and/or Pension), Part B, Section II, Box 6c., received February 2007. The Board, therefore, finds that this theory of entitlement has been reasonably raised by the record, and is properly before the Board. See Bingham v. Principi, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and are part of the same claim). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, M21-1, Part IV.ii.1.I.3 provides information concerning claims for service connection for disabilities resulting asbestos exposure. The Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1, Part IV.ii.2.C.2.a. Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1, Part IV.ii.2.C.2.d. Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. M21-1, Part IV.ii.2.C.2.b. Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). M21-1, Part IV.ii.2.C.2.f. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1, Part IV.ii.2.C.2.h. Here, the Veteran had over 20 years of service with the U.S. Air Force. His SPRs reflect that he was an expert technician for repairing and maintaining airborne communications equipment. As indicated above, he alleged asbestos exposure from aircraft wiring and insulation. VA has created an "ASBESTOS MOS HANDOUT" which lists the probability of exposure for many military occupational specialties (MOS). M21-1, Part IV.ii.1.I.3.c. The Veteran's duties during his Air Force service are consistent with the MOS classifications of "Aviation Radioman," "Aviation Support Equipment Technician," and/or "Aviation Electronic Technician" - all of which are considered "probable" for asbestos exposure. Thus, the Board must conclude that the Veteran had probable asbestos exposure in service. The available medical evidence reflects that the Veteran died of lung cancer which, as discussed above, is recognized as a disease potentially associated with asbestos exposure. Thus, the Board finds that VA has a duty to obtain medical opinion in this case as to whether the Veteran's lung cancer is etiologically related to his asbestos exposure in service. 38 U.S.C.A. § 5103A(d). Finally, in June 2014, the appellant submitted an article reporting that the on-base water supply at Castle AFB in California had been contaminated with trichloroethylene (TCE). The Veteran's SPRs reflect that he was assigned to Castle AFB from February 1961 to March 1963. The Board observes that VA has developed special adjudicatory procedures for Veterans stationed at Fort Lejeune who drank contaminated water which included TCE. See Veterans Benefits Administration (VBA) Fast Letter 11-03 (April 27, 2011 revised January 28, 2013). According to VBA Training Letter 11-03 (November 29, 2011), the Chemical Abstract Services (CAS) of the American Chemical Society finds that TCE "is reasonably anticipated to be a human carcinogen" with animal studies showing that high levels of TCE exposure may be associated with lung cancer. Here, the appellant has presented some evidence of the Veteran's potential TCE exposure while stationed at Castle AFB from February 1961 to March 1963. This issue is remanded to the AOJ for development and adjudication in the same manner of the Camp Lejeune claims. M21-1, Part IV.ii.2.C.5.j. Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder to an appropriate examiner for an opinion as to whether the Veteran's cause of death, due to lung cancer, is etiologically related to his asbestos exposure in service. The examiner should be advised that, during his lifetime, the Veteran described working on aircraft whose cables and insulations were made of asbestos which is consistent with his 20 years of service with the U.S. Air Force as an expert technician repairing and maintaining airborne communications equipment. His exposure to asbestos during these duties is deemed "probable." The Veteran also had a 70-pack year history of cigarette smoking and a history of sigmoid colon adenocarcinoma in 1994. In 2006, he was first diagnosed with metastatic lung cancer with bone metastasis. Following review of the claims folder, the examiner is requested to provide opinion as to whether it is at least as likely as not that the Veteran's in-service asbestos exposure caused his death, or contributed substantially or materially to the cause of his death? A rationale for all opinions expressed should be provided. 2. If the development conducted in paragraph 1 above does not fully resolve the claim in favor of the appellant, the AOJ should follow all current development procedures for the development of the appellant's claim that the Veteran had regular and repeated contact with C-123 aircraft known to have sprayed an herbicide agent pursuant to M21-1, Part IV.ii.1.H.3. 3. The AOJ should follow all current development procedures for the development of the appellant's claim that the Veteran's lung cancer was due to TCE exposure at Camp Castle from February 1961 to March 1963 pursuant to M21-1, Part IV.ii.2.C.5.j. 4. Send a request to JSRRC in an attempt to verify the following: a) whether the Veteran's service at Udorn RTAFB from June 6, 1967 to June 20, 1968 - which included performing in-shop and flight-line airborne equipment repair - required him to be at or near the base perimeters; b) whether the Veteran's service at U-Tapao AFB from June 22, 1974 to June 17, 1975 - which included performing in-shop and flight-line airborne equipment repair and being an assistant ground operator - required him to be at or near the base perimeters. In so doing, the AOJ should send JSSRC a copy of the U-Tapao Airfield Reference Map (received in March 2012) and request JSSRC to identify the proximity of the flight line and ground operations building to the base perimeter; and c) whether the allegations of the Veteran flying to the Vietnam mainland for the purpose of repairing airborne communications equipment is consistent with his known MOS and units of assignment at Udorn RTAFB, U-Tapao AFB and Clark Air Base AB during the Vietnam War. The Veteran's SPRs must be provided for review. Any response from JSRRC (positive or negative) should be associated with the claims file. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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) (2015).