Citation Nr: 1606193 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 14-28 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of prostate cancer, to include as due to herbicide exposure and ionizing radiation exposure. 2. Entitlement to service connection for a lung disorder, to include as due to herbicide exposure and ionizing radiation exposure. REPRESENTATION Appellant represented by: James M. McElfresh II, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1951 to July 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the case was subsequently transferred to the RO in Salt Lake City, Utah. Initially, the record suggests, and the Veteran acknowledges, that the residuals of prostate disorder claim was previously denied in a rating decision that became final. See, e.g., June 2011 claim; November 2011 rating decision (referencing prior February 2002 rating decision). The January 2012 request for reconsideration of both appellate issues, as adjudicated in the November 2011 rating decision, is currently not of record. Based on the foregoing, the Board has recharacterized the residuals of prostate disorder issue as a request to reopen and will address any additional procedural matters in a subsequent decision, if necessary. A videoconference hearing was held before the undersigned Veterans Law Judge in November 2015. A transcript of the hearing is of record. Thereafter, the Veteran's representative submitted additional evidence for which there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) consideration. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issues on appeal, with the exception of the November 2011 rating decision and notice letter, as well as VA treatment records already considered by the RO. 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 is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran's claims. The Veteran has contended that he has residuals of prostate cancer and a lung disorder as a result of his military service. The Veteran and his representative have offered multiple causal theories for these claims - in-service complaints and treatment as early manifestations of the current disorders, herbicide exposure from stepping foot in Vietnam during a brief stop on the way to Thailand and subsequent exposure while stationed at certain Thailand Air Force bases, ionizing radiation exposure, and exposure to jet fuel and radar as a result of his duties. See, e.g., June 2011 claim; November 2015 Bd. Hrg. Tr. Initially, the RO notified the Veteran that it was unable to locate his claims file and requested that he submit a copy of his claim and any previously submitted evidence. See February 2014 notification letter. The RO sent a request to the National Personnel Records Center (NPRC) that same month to request the Veteran's service treatment records; it appears that these records were previously associated with the claims file. See February 2014 3101 printout; November 2011 rating decision. Thereafter, the Veteran's representative submitted copies of documents that appear to have been part of the original claims file, including a September 2011 written statement (received in April 2014) that shows that the representative had received and reviewed a copy of the claims file. In that submission, the representative referenced specific entries from the Veteran's service treatment records. The service treatment records associated with the claims file in response to the February 2014 NPRC request consist of the Veteran's January 1971 retirement examination and some dental treatment records. In other words, it appears that there are more service treatment records than are associated with the rebuilt claims file. Based on the foregoing, and given the Veteran's lengthy period of military service and contentions in this case, the Board finds that the AOJ should make additional efforts to locate the contents of the original claims file, as detailed in the directives below. Regarding the medical evidence, it appears that there may be outstanding, relevant private treatment records, as detailed in the directives below. While the case is on remand, updated VA treatment records should also be obtained. Regarding the claimed herbicide exposure, the record shows that the Veteran was stationed in Thailand from November 1966 to November 1967, but it not does not confirm that the Veteran set foot in Vietnam. See May 2014 3101 printout. The service personnel records show that the Veteran was assigned to the 1973 and 1985 Communications Squadrons during this time as an air traffic controller, with a temporary duty assignment to the 1987 Communications Squadron. The first two units were stationed at the Udorn Royal Thai Air Force Base (AFB) and U-Tapao Royal Thai AFB, respectively, and it appears that the 1987 Communications Squadron was located at the Nakhon Phanom Royal Thai AFB. The Veteran has recently reported that he was exposed to Agent Orange in Thailand while performing his duties at the Nakhon Phanom Royal Thai AFB because of the C-123 aircraft that landed there after being used to defoliate areas with Agent Orange and because the ground had a yellow-colored powder on it. See Bd. Hrg. Tr. at 4-6; November 2015 written statement. 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 an herbicide agent (Agent Orange) during the Vietnam era and later develop an Agent Orange presumptive condition. 80 Fed. Reg. 35246-01 (June 19, 2015) (now codified at 38 C.F.R. § 3.307(a)(6)(v) (2015). See also 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 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 service personnel records show that his military occupational specialties were as a weapons mechanic until July 1961, followed by various duties related to air traffic control. The Veteran's assigned units are not listed among those currently recognized in VA's published list. Nevertheless, it does not appear that the AOJ has considered this matter in the first instance, and such development is necessary given the Veteran's contentions and the new regulation. Regarding the claimed ionizing radiation exposure, the record shows that the Air Force provided a dose estimate for the Veteran based on his duties as a weapons mechanic. See October 2012 Air Force memorandum. The RO thereafter developed the residuals of prostate cancer claim under the provisions of 38 C.F.R. § 3.311. During the Board hearing, the Veteran and his spouse indicated that he is being treated for a lung fungus; however, the records from the Veteran's treating pulmonologist are not of record. See Bd. Hrg. Tr. at 13-14. While the case is on remand, the AOJ will have the opportunity to review the claims file to determine whether further development is necessary in this regard as to the lung disorder claim. In addition, the Veteran has not been afforded a VA examination for the lung disorder claim. Again, the Veteran and his spouse testified that he is currently receiving lung-related treatment. In addition, there is evidence in the record that the Veteran's current symptoms may be related to his military service. For example, the Air Force did confirm that the Veteran had a level of ionizing radiation exposure, and the Veteran testified he was treated during service for related complaints. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Based on the foregoing, the Board finds that a VA examination is needed for this claim. Accordingly, 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. The AOJ should contact the Veteran and his representative to request that they submit a copy of the complete claims file provided to them in 2011. See September 2011 representative written submission (received in April 2014) indicating that the representative was in possession of the contents of the claims file, including the service treatment records, based on his previous request. 2. The AOJ should contact any VA offices that have worked on the claims file (including the Seattle and Jackson ROs and the Central Office in Washington, D.C.) to make another attempt to locate the Veteran's original paper claims file. See May 2001 notification letter and February 2014 email correspondence (providing history of original search). The AOJ should also perform a search in its database to attempt to locate the February 2002 rating decision and notification letter regarding the residuals of prostate cancer claim, if it is not otherwise associated with the claims file as a result of the above actions. All attempts and responses should be documented in the claims file. 3. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his prostate cancer and lung disorders. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for any relevant private treatment the Veteran has received, including from the providers identified during the November 2015 Board hearing, Dr. M. (lungs) and Dr. S. (prostate cancer). See Bd. Hrg. Tr. at 15-16. The AOJ should also secure any outstanding, relevant VA treatment records. 4. After completing the foregoing development, the AOJ should take any appropriate steps consistent with the procedures outlined in the M21-1 and in consideration of 38 C.F.R. § 3.307(a)(6)(v) to attempt to verify the Veteran's claimed herbicide exposure while assigned to the Nakhon Phanom Royal Thai AFB. A May 1967 letter of evaluation in the service personnel records shows that he was assigned to the 1987 Communications Squadron from April 1967 to May 1967 as an air traffic controller, and it appears that this unit was assigned to that base. The AOJ should also review the file and conduct any necessary and outstanding development related to the Veteran's claim that he was exposed to herbicides from stepping foot in Vietnam during a brief stop on the way to his assignment in Thailand. See November 2015 Bd. Hrg. Tr. at 7-10. It is noted that the Veteran has recently reported that he was exposed to Agent Orange in Thailand while performing his duties at the Nakhon Phanom Royal Thai AFB because of the C-123 aircraft that landed there after being used to defoliate areas with Agent Orange and because the ground had a yellow-colored powder on it. See Bd. Hrg. Tr. at 4-6; November 2015 written statement. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current lung disorder that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and statements. The Veteran and his representative have offered multiple causal theories for his claim - in-service complaints and treatment as early manifestations of a current lung problem, herbicide exposure from stepping foot in Vietnam during a brief stop on the way to Thailand and subsequent exposure while stationed at certain Thailand Air Force bases, ionizing radiation exposure, and exposure to jet fuel and radar as a result of his service duties. See, e.g., June 2011 claim; November 2015 Bd. Hrg. Tr. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. It should also be noted that the Veteran's performance evaluations in the service personnel records show the nature of his in-service duties; his military occupational specialties were as a weapons mechanic until July 1961, followed by various duties related to air traffic control. The Air Force provided a dose estimate for ionizing radiation for the Veteran based on his duties as a weapons mechanic. See October 2012 Air Force memorandum. In addition, a March 2014 VA treatment record shows that the Veteran had a history of tobacco use from ages 8-24 and that he quit in 1957. The examiner should identify all current lung disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including any circumstances and symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The AOJ should consider whether any development is necessary under the provisions 38 C.F.R. § 3.311 for the lung disorder claim. 7. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. Further development may include providing a VA examination or obtaining a VA medical opinion if it is determined that new and material evidence exists to reopen the residuals of prostate cancer claim or that the claim should be adjudicated on a de novo basis. 8. The case should then be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ J.W. ZISSIMOS 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).