Citation Nr: 1614365 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 14-17 532 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure. 2. Entitlement to service connection for a pulmonary/respiratory disability, claimed as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to October 1968. This appeal to the Board of Veterans' Appeals (Board) arose from December 2011 and January 2013 rating decisions. In the December 2011 rating decision, the RO denied service connection for ischemic heart disease. In February 2012, within one year of the notification of the December 2011 rating decision, the Veteran, though his representative, filed a notice of disagreement (NOD) with the RO's denial of service connection for ischemic heart disease. In January 2013, the RO denied service connection for a lung condition, claimed as asbestosis. In August 2013, the Veteran, though his representative, disagreed with the RO's denial of that claim. In April 2014, the RO issued two statements of the case (SOCs), addressing the Veteran's claims for service connection for ischemic heart disease and for a lung condition. The same month, the Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) for each claim. In February 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the Board hearing, the Veteran submitted additional evidence in support of his claim, along with a waiver of initial agency of original (AOJ) consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2015). This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Board notes that, in addition to the VBMS file, the Veteran has a separate paperless, electronic Virtual VA file, which includes VA treatment records dated through April 2014; such records were considered in the April 2014 statement of the case. The remaining documents in Virtual VA consist of various adjudication documents that are either duplicative of those contained in the VBMS file or irrelevant to the issues on appeal. The Board notes that the Veteran had a separately docketed appeal that involved the issues entitlement to entitlement to increased ratings for posttraumatic stress disorder (PTSD) and bilateral hearing loss and to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Final decisions have been rendered with respect to each of those claims and the matters are no longer before the Board. Specifically, in a June 2009 decision, the Board denied an increased rating for bilateral hearing loss and the Veteran did not appeal that determination to the United States Court of Appeals for Veterans Claims (Court). In a November 2010 decision, the Board denied an increased evaluation for PTSD and the Veteran similarly did not appeal that determination to the Court. Lastly, in a May 2012 decision, the Board denied entitlement to TDIU. The Veteran also did not appeal that determination to the Court. Accordingly, the only matters currently before the Board as part of the current appeal are those set forth on the title page of this decision. For reasons expressed below, the matters on appeal are being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND A review of the record shows that the Veteran has been diagnosed as having coronary artery disease and that in 2002 he underwent a percutaneous transluminal coronary angioplasty (PTCA). The Veteran has asserted his belief that his heart disease is the result of exposure in service to Agent Orange. In this regard, the Board notes that there are certain chronic diseases, such as ischemic heart disease, to include coronary artery disease, that the VA Secretary has recognized are etiologically associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. § 3.309(e) (2015). (In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i) (2105).) Furthermore, VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. See Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010). Thus, VA has determined that exposure to herbicides will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases during the Vietnam era (February 28, 1961, to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. See VA Adjudication Procedures Manual "Live Manual" (M21-1) part IV, subpt. ii, ch. 1, sec. H.5.a; VBA C&P Service Bulletin (May 2010). VA based this determination of evidence contained in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Specifically, the M21-1 provides that if a veteran served with the U.S. Air Force at a specified Royal Thai Air Force Base (RTAFB), of which U-Tapao is one, as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure if to be conceded on a direct/fact-founds basis. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. In a February 2011 statement in support of the claim, the Veteran reported landing in Vietnam on the way to and from Thailand. The Veteran has also alleged his belief that was exposed in service to herbicides while he was stationed at U-Tapao Thai Navy Airfield. A review of the Veteran's service personnel records shows that he reported for duty at U-Tapao Thai Navy Airfield on October 31, 1967, where he served as an aircraft maintenance specialist. The record does not establish that the Veteran served as a security policeman, security patrol dog handler, or member of the security police squadron. Rather, during his February 2016 hearing, the Veteran reported that he was often required to perform duties in service as an aircraft mechanic crew chief near the base perimeter. The Veteran further alleged that his barracks was within 25 feet of the base perimeter. In support of this assertion, the Veteran submitted a photograph purportedly taken of him sitting in front of his barracks, showing the base perimeter fencing behind him. The Board notes that the M21-1 sets forth procedures to verify exposure to herbicides based on service in Thailand during the Vietnam era. If herbicide exposure cannot be conceded on a direct/fact-founds basis, the AOJ is to ask the Veteran for specific information concerning the dates, location, and nature of the alleged herbicide exposure. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. If the Veteran provides that information within 30 days, the AOJ is to review the information and make a determination as to whether exposure to herbicides can be acknowledged on a direct/fact-founds basis. Id. If yes, the AOJ should proceed with any other necessary development and then refer the claim to the rating activity. Id. If no, the AOJ is to either (1) send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides or (2) refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Id. In the instant case, the AOJ did not follow the procedures set forth in the M21-1 to verify whether the Veteran was exposed to herbicides based on his service in Thailand. Although the claims file contains a memorandum entitled "Formal finding of a lack of information required to corroborate exposure to Agent Orange," that document was prepared by a VA employee who concluded that the information was insufficient to send to the JSRRC. Further, it does not appear from the record that the Veteran was ever asked to provide specific information concerning the dates, location, and nature of the alleged herbicide exposure in Thailand, or that the AOJ either sought verification of the Veteran's alleged exposure with the JSRRC or referred the matter to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, as required by the M21-1, despite the fact that the Veteran asserted that his living quarters were adjacent to the base perimeter and that his service duties placed him at the base perimeter. (The Board notes that the AOJ's memorandum refers to a December 6, 2010, letter wherein the Veteran was asked to send evidence of how he was exposed to herbicides in service; however, that letter requested information regarding exposure to herbicides in Vietnam and contained no reference to Thailand.) Accordingly, the Board finds that the claim for service connection for ischemic heart disease must be remanded for the AOJ for completion the development required by the M21-1 in cases such as this one. Given that the Veteran has provided lay testimony detailing the duties that required him to be at or near the base perimeters, the Board finds that on remand, the AOJ should contact the JSRRC in an effort to independently verify the Veteran's exposure to herbicides in Thailand. Regarding the Veteran's assertion that he was on flights that touched down in Vietnam, the Board notes that the AOJ attempted to verify whether the Veteran had in fact served in Vietnam. Specifically, in February 2011, the AOJ submitted a request to the National Personnel Records Center (NPRC) for verification of whether the Veteran had service in Vietnam. A response was received the following month, which response was as follows: "We are unable to determine whether or not this veteran served in the Republic of Vietnam. We are furnishing copies of pertinent documents or information from the file to assist you in a making a determination." The Board finds that this response is inconclusive and cannot be relied upon to support a finding that the Veteran did not have service in Vietnam. Further, it is not clear from the electronic record currently before the Board what documents were supplied by the NPRC, as there are no documents attached to the NPRC's response and no other documents are dated as received in March 2011. Accordingly, on remand, additional efforts must be undertaken to verify whether the Veteran can be considered to have had service in Vietnam. Turning to the Veteran's claim for service connection for pulmonary/respiratory disability, it is the Veteran's contention that he has pulmonary/respiratory due to asbestos exposure in service. Specifically, in a January 2014 written statement and during his February 2016 hearing, the Veteran alleged that he was exposed to asbestos as an aircraft mechanic. The Veteran reported that asbestos was used for insulation of duct work and wiring and in brake pads and jet engines. The Veteran also submitted private medical evidence dated in November 1994 and signed by W.A.D., M.D., who reported that the Veteran was seen for evaluation to determine the presence or absence of coal worker's pneumoconiosis and/or asbestosis. X-rays were taken, the results of which were interpreted as being consistent with mixed dust type of pneumoconiosis, including both coal worker's pneumoconiosis and asbestosis. More recently, the Veteran was seen for complaints of shortness of breath. Notably, however, chest x-rays were interpreted to be essentially normal. X-rays taken in August 2013 were interpreted to reveal borderline expanded lungs with nonspecific mild prominent interstitial lung markings; the recorded impression, however, was no significant acute process in the lung. X-rays taken in April 2014 showed clear lungs and an unremarkable mediastinal contour. The impression was a negative two-view chest x-ray. In the instant case, the Veteran's service personnel records document that he worked as an aircraft mechanic and aircraft maintenance specialist. The Veteran has submitted numerous internet articles discussing the use of asbestos in planes and indicating that aircraft mechanic were especially vulnerable to asbestos exposure. Further the M21-1 "Live Manual" describes the probability of asbestos exposure by military occupational specialty, which list is not exclusive. M21-1, part IV, subpt. ii, ch. 1, sec. I.3.c. Jet engine mechanics and aviation mechanics are indicated to have a "probable" probability of exposure. Id. Given this evidence and in consideration of the Veteran's indicated military occupational specialties, the Board finds that the Veteran was likely exposed to asbestos in service. Thus, the issues for resolution are the existence of a current disability and any relationship to service. Regarding the issues for resolution, the Board notes that the Veteran has not been afforded a VA examination in connection with his claim of service connection for a pulmonary/respiratory disability. Although it is not clear that the Veteran has a currently diagnosed pulmonary/respiratory disorder, VA treatment records do show that the Veteran has complained of shortness of breath, which could be a symptom of a current respiratory/pulmonary disorder. Further, the chest x-rays taken in August 2013 also revealed mild prominent interstitial lung markings and the recorded impression does not entirely rule out the presence of a lung condition. Based on this evidence and in consideration of the previous indication of asbestosis and the likelihood that the Veteran was exposed to asbestos in service, the Board has determined that the "low threshold" necessary to establish entitlement to a VA medical examination has been satisfied. See 38 U.S.C.A § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4) (2015); M21-1, part IV, subpt. ii, ch. 1, sec. I.3.e. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the Veteran and death or an immediate family member. Prior to arranging for the Veteran to undergo VA medical examination, to ensure that all due process requirements are met., and that the record is complete with respect to both claims, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Huntington, West Virginia, VA Medical Center (VAMC), and that records from that facility dated through April 2014 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the above-noted facilities all outstanding, pertinent records of evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2015) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly as regards private (non-VA) medical treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (West 2014) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Huntington VAMC (and any associated facility(ies) all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since April 2014. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After records and/or responses received have been associated with the record, send a request to the JSRRC in an effort to verify the Veteran's exposure to herbicides consistent with his service in Thailand at U-Tapao Thai Navy Airfield beginning on October 31, 1967. The JSRRC should be provided with any necessary documentation, to include any relevant service records, the transcript of the Board hearing, as well as any evidence and/or lay statements submitted by the Veteran, to include copies of the submitted photographs, and statements detailing any duties and/or living situations that required him to be at or near the base perimeters. The JSRRC's response should be documented in the record. 5. After all records and/or responses have been associated with the claim, undertake appropriate action, to particularly include contact with the NPRC, as well as any other appropriate source(s), to attempt to independently verify whether the Veteran ever set foot in Vietnam during his Vietnam era service. In doing so, attempt to verify whether the Veteran ever landed in Vietnam during his flights to and/or from Thailand. 6. After all records and/or responses have been associated with the claim, arrange for the Veteran to undergo VA examination for respiratory diseases by an appropriate physician. The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies (to include imaging testing, if warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify any current pulmonary/respiratory disease. This should include any such validly diagnosed disability at any point pertinent to the claim for service connection on appeal (even if currently asymptomatic or resolved). Then, with respect to each such diagnosed disability, the examiner should provide a medical opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically-related to service, including exposure to asbestos therein. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, to include any post-service indication of asbestosis, as well as the Veteran's lay assertions regarding his post-service occupational exposures as outlined above, as well as regarding the nature, onset, and continuity of respiratory symptoms. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999)). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2015).