Citation Nr: 1611331 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 08-16 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1973. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In October 2009, the Board remanded the claims for further evidentiary development, and in May 2011 the Board denied entitlement to service connection for diabetes mellitus and CLL. The Veteran then appealed these denials to the Court of Veterans Claims (Court). In November 2011, the CAVC issued an Order allowing a Joint Motion for Remand (JMR), vacating the May 2011 denial and returning the matters to the Board. In March 2012, the Board was notified that the Veteran had died on March [redacted], 2012. In May 2012, the Board issued a decision dismissing the Veteran's claims, noting that the claims did not survive his death. See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996). However, the Appellant was notified that the dismissal did not affect her right, as the Veteran's surviving spouse, to file a request to be substituted as the appellant for the purposes of processing the claim to completion. On May 17, 2012, the Appellant filed a VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (including Death Compensation if Applicable). The Appellant was accepted as a substitute, and in September 2013, the Board remanded the appeal for additional development. In April 2014, the Board again denied these claims, and the Appellant appealed the decision to the Court. In November 2014, the Appellant and the Secretary, through the Office of General Counsel, agreed to a Partial Joint Motion (JMR). This JMR noted that the Appellant did not want to pursue an appeal of the Board's decision insofar as it denied entitlement to diabetes and CLL on a direct causation theory. The Appellant wanted to pursue an appeal as to the denial of presumptive service connection as due to herbicide exposure during the Veteran's period of service. On November 19, 2014, the Court issued an Order granting the JMR's motion to remand the case to the Board for further consideration. In April 2015, the Board again denied the claims. The Appellant again appealed the matters to the Court. In September 2015, the Court granted another JMR, and returned the matters to the Board. The Veteran testified before a Veterans Law Judge at a hearing in August 2009. A transcript of that hearing is of record. In January 2016, the Appellant was notified that the VLJ who conducted that hearing is currently unavailable to participate in the decision, and given the opportunity to request another hearing before a different VLJ. Later that month, the Appellant's representative submitted a letter stating that the Veteran does not wish to appear at another Board hearing. The issues of entitlement to an increased evaluation for the service-connected right knee disability and left knee disability, to include temporary total disability for the right knee disability, and service connection for depression as secondary to the service-connected knee disabilities, have been raised by the record in an August 2009 statement, but have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). 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 appellant if further action is required. REMAND The September 2015 JMR instructed that the Board discuss an October 2010 Joint Service Records Research Center (JSRRC) response indicating that the Veteran had served in the Republic of Vietnam, although the exact dates of such service were unclear. The Appellant's representative has provided a copy of this response, as it was not included in the record before the Board at the time of the April 2015 denial. The copy of the JSRRC response, as provided by the Appellant's representative, indicates that the JSRRC stated that the tour dates in Vietnam were unclear, and furnished copies of pertinent documents from the Veteran's file to assist the Board in making a determination. As the personnel documents of record provide no indication that the Veteran served in Vietnam, and the original JSRRC response is not part of the record, the Board cannot assume that the pertinent documents referenced in the JSRRC response are currently associated with the record. Upon remand, the AOJ should ask the JSRRC to once again furnish copies of these records so that the Board can fully address the JSRRC response and make a determination as to whether the Veteran was present in Vietnam during the period of time that triggers the presumption of herbicide exposure. The September 2015 JMR also instructed that the Board should consider whether any Veterans Benefits Administration experts could render a determination on the issue of whether the Veteran had duties near the perimeter of Korat Royal Thai Air Force Base. In the interest of ensuring that the Board has complied with the duty to assist and with the JMR instructions, upon remand the AOJ should contact the Air Force Historical Research Agency and request information regarding whether the laundry facilities at the Korat Royal Thai Air Force Base, which is where the Veteran contended he had duties that exposed him to herbicides, were close to the perimeter. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the JSRRC and request that they provide new copies of the documents referenced in the October 2010 response that the record shows the Veteran served in the Republic of Vietnam, but that the exact tour dates are unclear, and that the JSRRC is furnishing copies of pertinent documents from the file to assist in making a determination. If the JSRRC is unable to do so, notify the Appellant and her representative and offer them the opportunity to provide any relevant documents that might be in their possession. All attempts to obtain this information must be documented in the record. 2. Contact the Air Force Historical Research Agency or another appropriate agency and request information regarding whether the laundry facility at the Korat Royal Thai Air Force Base was located near the perimeter during the period from July 1968 through July 1969. All attempts to obtain this information must be documented in the record. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL 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).