Citation Nr: 1622333 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 13-07 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for ischemic heart disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1961 to April 1969, with service in Thailand. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Albuquerque, New Mexico Department of Veterans Affairs (VA) Regional Office (RO). In his March 2013 substantive appeal, the Veteran requested a Travel Board hearing. In August 2014 correspondence, he withdrew this hearing request. In April 2016 written correspondence, the Veteran's representative raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to his ischemic heart disease. As the raised TDIU claim is based on a disability that is not yet service-connected, the Board does not have jurisdiction over it, and it is hereby referred to the RO for appropriate action. 38 C.F.R. § 19.9(b)(2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. The Veteran's theory of entitlement to service connection for ischemic heart disease is based on exposure to herbicides in service. 38 C.F.R. §§ 3.307 (stating that service connection for certain listed conditions will be presumptively granted for veterans who establish herbicide exposure), 3.309 (including ischemic heart disease as a condition for which presumptive service connection will be granted for veterans who establish herbicide exposure). However, exposure for Veterans who served in Thailand is not presumed and must be factually established by the evidence in each case. 38 C.F.R. § 3.307(a)(6)(iii), (iv) (establishing criteria for presumptive herbicide exposure). In this case, the Veteran's service personnel records (SPRs) show service in Thailand at the Takhli Royal Thai Air Force Base (RTAFB) as an administrative specialist. VA has determined that U.S. Air Force Veterans who served on the Takhli RTAFB near the air base perimeter anytime between February 28, 1961, and May 7, 1975, may have been exposed to herbicides. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 2, Section C ("M21-1"). The Board finds that VA has not yet undertaken the required exhaustive development to determine whether the Veteran was exposed to herbicides in Thailand. As an initial matter, because his SPRs do not include any performance evaluation reports covering his eight years of service, they do not appear complete. Accordingly, the RO must attempt to obtain the records in their entirety or make a formal finding as to their unavailability. In Gagne v. McDonald, No. 14-0334, 2015 (Vet. App. Oct. 19, 2015), the United States Court of Appeals for Veterans Claims held that VA was, at minimum, obligated to submit multiple requests to the JSRRC covering the relevant time window in 60-day increments. VA's duty to assist is not bound by the JSRRC's 60-day requirement, and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. Id. The only limitation to this duty provided by the Court, other when searches are "futile," is that the duty to assist does not require unlimited searches, or "'fishing expeditions' over an indefinite period of time." Id. Moreover, the Board notes that an October 2011 VA memorandum from the Joint Services Records Research Center (JSRRC) Coordinator notes that the Veteran's military occupational specialty (MOS) did not involve prolonged exposure to the perimeter of the base and that his exposure to herbicides could not be verified. Subsequent to that finding, the Veteran submitted additional information regarding his service in Thailand, including an undated statement (received in March 2013) in which he stated that he worked very close to the perimeter, by the runway, and that his responsibilities included taking care of the flight operations and the maintenance of all aircraft. In a March 2013 statement, he stated that he served at the Takhli RTAFB from January to April 1969. In light of the foregoing, the Board finds that it remains unclear whether the Veteran's duties would have placed him at or near the air base perimeter. Additionally, October 2012 correspondence from the Veteran's U.S. Representative's office noted that the Veteran is in receipt of Social Security Administration (SSA) benefits. The record does not reflect that records pertaining to the SSA claim have been sought for the record by VA. Because SSA records are constructively of record, and because the Board is unable to find that such records would not be relevant, they must be sought on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The record also suggests that the medical evidence associated with the record is incomplete. In July 2013 correspondence, Dr. Robert Taylor, Chief Medical Director at ABQ Health Partners Cardiology, stated that he has treated the Veteran for approximately seven years. In October 2012 correspondence, Dr. Joe Anderson stated that the Veteran has been treated at the University of New Mexico Hospital since June 1, 2006. The most recent private treatment report from the University of New Mexico is from November 2012. Additional records of private treatment are not associated with the record, and do not appear to have been sought. As they are likely to contain pertinent information, they should be secured. Further, the most recent VA treatment records are dated in August 2012. Any outstanding (updated) records of VA treatment the Veteran has received for his heart disability may contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record from SSA copies of its determination on the Veteran's claim for SSA disability benefits (and all medical records considered in connection with such claim). If no such records exist, it should be so noted in the record (with explanation), and the Veteran should be so advised. 2. The AOJ should ask the Veteran to identify all providers of evaluations or treatment he has received postservice for ischemic heart disease and to provide authorizations for VA to obtain records of any such private evaluations or treatment, to specifically include records pertaining to treatment at ABQ Health Partners and University of New Mexico Hospital. The AOJ should secure for the record copies of the complete clinical records (i.e., any not already associated with the record) from the providers identified. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 3. The AOJ should specifically secure for the record copies of the complete clinical records of all VA treatment the Veteran has received for his ischemic heart disease (i.e., update to the present complete records of his VA treatment for ischemic heart disease). 4. The AOJ should arrange for exhaustive development to ensure that the Veteran's SPRs in the record are complete. If no additional records are available, that fact should be documented in the record, and the Veteran should be provided notice of that fact. 5. Thereafter, the AOJ should forward a list of the Veteran's service dates and duty locations as well his statements regarding the nature of his exposure to herbicides in service to JSRRC and request verification of such exposure. THE AOJ IS ADVISED THAT pursuant to Gagne, 27 Vet. App. at 402-03, several sequential requests may be required until the entire period is covered. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2) the AOJ should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. In particular, the JSRRC should attempt to verify that whether the Veteran's MOS (taking into account his statements, including his statements about aircraft maintenance) would have placed him at or near the perimeter of the base or in frequent contact with airplanes that delivered herbicides. In making this determination, the AOJ should take into account the recent updates to VA's regulations establishing that residual amounts of herbicides on plane surfaces can increase adverse health effects in Veterans who worked on these planes. See 38 C.F.R. § 3.307(a)(6)(v). The results of this development should be stated in a memorandum for the record. 6. The AOJ should then make a formal determination for the record regarding whether or not the Veteran was exposed to herbicides in the course of his service in Thailand. He should be notified of the determination. 7. The AOJ should then review the record and arrange for any further development indicated (e.g., an examination to ascertain the etiology of the Veteran's ischemic heart disease if presumptive service connection cannot be granted because herbicide exposure is not established) and re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).