Citation Nr: 1604303 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 14-19 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than December 1, 2010 for the grant of service connection for coronary artery disease (CAD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to March 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2015, the Veteran testified before the Board via a video conference hearing. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal, which was processed using the Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing system, is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is service connected for CAD as secondary to his service connected diabetes mellitus. He has been assigned an effective date of December 1, 2010 for the grant of this disability based on the December 1, 2010 date he filed a claim for service connection for such disability. See 38 C.F.R. § 3.400. However, he asserts that he should be awarded service connection for CAD on the basis of his exposure to Agent Orange rather than as secondary to his DM, thus entitling him to an earlier effective date for the grant. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Under the provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Here, ischemic heart disease (to include coronary artery disease) was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e) effective August 31, 2010. See 38 C.F.R. § 3.114(a) (for liberalizing laws and regulations). Additionally, in cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). A Nehmer class member is identified as a Vietnam Veteran who has a covered herbicide-related disease [emphasis added]. 38 C.F.R. § 3.816(b)(1)(i). The term "covered herbicide diseases" includes coronary artery disease. 38 C.F.R. § 3.816(b)(2)(i) (2015). However, the regulation applies to claims for disability compensation that were either pending before VA on May 3, 1989, or were received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, which is this case is August 31, 2010. 38 C.F.R. § 3.816(c). In light of the forgoing, further development is warranted with respect to determining whether the Veteran is presumed exposed to an herbicide agent. The Veteran's service personnel records do not show that he was stationed in Vietnam nor does he contend as much. Rather, he contends that he was sent to Vietnam on two occasions on temporary orders in mid-1969. In this regard, he has repeatedly requested that in addition to trying to obtain his temporary duty (TDY) orders, that VA obtain his pay records from the Defense Finance and Accounting service (DFAS) which will show that he received a tax credit for being in Vietnam for combat related special compensation eligibility. Unfortunately, it does not appear that such records have been requested. In this regard, while there are pay records from the DFAS on file, these records pertain to the Veteran's military retirement pay and not to his pay while on active duty. Accordingly, a search should be made for TDY orders that would confirm the Veteran's temporary transfer from his duty station in Thailand to Vietnam during the period from November 1968 to November 1969. In addition, the DFAS should be contacted for the purpose of obtaining the Veteran's military pay records/orders for the same period. These documents would verify whether the Veteran received hazardous duty or combat pay during the relevant period, which would indicate service in a combat area such as Vietnam. The Veteran also asserts exposure to herbicides based on his service in Thailand. In this regard, special consideration of herbicide exposure on a factual basis has been extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. More specifically, if a Veteran served in one of the Royal Thai Air Force Bases in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang, as an Air Force security policeman, security patrol dog handler, a member of a security police squadron, or otherwise near the air base perimeter as shown by the evidence of daily work activities, performance evaluation reports, or other credible evidence, Compensation Service will concede herbicide exposure on a direct/facts-found basis. See VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5 (M21-1). See also VA Public Health Thailand Guidance, http://www.publichealth.va.gov/exposures/agentorange/thailand.asp. The Veteran's service personnel records show that he served 367 days at Nahom Air Force Base in Thailand and he testified that his duties involved service along the perimeter. See 9/15 Board Hearing Transcript pages 7-10. Accordingly, VA should attempt to verify through the Joint Services Records Research Center (JSRRC)/ Defense Personnel Records Information Retrieval System (DPRIS) the Veteran's assertions that his military duties as a Squadron Commander Executive Support Staff Officer/Administrative Management Office Staff would have required him to be along the base perimeters. Also, the Veteran testified before the Board in September 2015 that in addition to filing a claim for service connection for CAD in December 2010, he filed an earlier claim as well, although he was not sure when. The record does not show that an earlier claim for service connection for CAD was filed. Thus, he should be given the opportunity to submit evidence that supports his assertion of filing a claim for service connection for CAD with VA earlier than December 2010. Based on the foregoing, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain, for the period from November 1968 to November 1969, all pay stubs which reflect special pay status, travel vouchers, passenger manifests, and all TDY (temporary duty) orders from the Air Force Personnel Center, the DFAS, JSRRC/DPRIS and/or other appropriate records repository, as deemed necessary. Provide DFAS and JSRRC/DPRIS or other repository with the appropriate information, as needed, showing service dates, duties, and units of assignment. Ask the JSRRC to indicate, if possible, whether any data indicate that the Veteran ever had TDY in Vietnam. 2. After completing the development actions listed above and any other indicated development, if no TDY in Vietnam is shown, follow VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5 or its equivalent and request a herbicide exposure verification from the Department of Defense (DOD) for the period from November 1968 to November 1969 at the Nakhon Phanom Air Force Base in Thailand. If DOD does not confirm herbicide exposure, refer the Veteran's pertinent information to the U.S. Army and Joint Services Records Research Center (JSRRC) with a request for verification of exposure to herbicides. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a Supplemental Statement of the Case to him and his representative. The requisite period of time for a response should be afforded. Thereafter, return the case to the Board for further appellate action, if otherwise in order. The appellant and his representative have 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). _________________________________________________ H. N. SCHWARTZ 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).