Citation Nr: 1623653 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 12-27 571A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and the Veteran's Son ATTORNEY FOR THE BOARD Jaime M. Porter, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to October 1964, with additional service in the Georgia National Guard. The Veteran died in March 2008, and the Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The RO in Atlanta, Georgia, now has jurisdiction over this case. The Appellant and the Veteran's son appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2016. A copy of the transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's death certificate lists his immediate cause of death as apparent cardiac arrest from a myocardial infarction, with hypertension, diabetes, and chronic kidney disease listed as contributing conditions. The Appellant contends that the Veteran was exposed to Agent Orange while stationed in Okinawa, Japan, during his active service, and that the medical conditions that caused the Veteran's death were incurred as a result of Agent Orange exposure. The Veteran's service personnel records confirm that he had foreign service in Okinawa, Japan, from November 1963 to October 1964. At the time of his death, the Veteran was not service connected for any disabilities. A surviving spouse of a qualifying Veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC) benefits. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. Id. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. See 38 C.F.R. § 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to exposure to herbicide agents include ischemic heart disease and type 2 diabetes, if manifested to a degree of 10 percent or more at any time after military service. 38 C.F.R. § 3.309(e). The Board notes that the Veteran did not have in-country service in Vietnam during his period of active service, nor does the Appellant claim that the Veteran had such service. See 38 C.F.R. § 3.307(a)(6)(iii). However, the Appellant is not precluded from establishing entitlement to service connection for the cause of the Veteran's death due to herbicide exposure. In the final regulations that established type 2 diabetes as a disease presumed to be service connected based on in-service herbicide exposure, VA re-affirmed that, if a Veteran did not serve in Vietnam but was exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6) during service and has a disease that is on the list of diseases subject to presumptive service connection, then VA will presume that the disease is due to herbicide exposure. See 66 Fed. Reg. 23,166 (May 8, 2001); 38 C.F.R. § 3.309(e). Accordingly, VA has a duty to assist the Appellant by attempting to verify her claim that the Veteran was exposed to Agent Orange during service. The VA Adjudication Procedures Manual M21-1 (M21-1), Part IV, Subpart ii, Chapter 2, Section C, Subsection 10, Paragraph o, describes the procedure for verifying exposure to herbicides in locations other than the Republic of Vietnam or along the demilitarized zone in Korea. The procedure involves: (1) asking the Veteran for the approximate dates, location, and nature of the alleged exposure; (2) furnishing the Veteran's detailed description of exposure to Compensation Service for confirmation; and (3) requesting a review of the Department of Defense (DOD) inventory of herbicide operations to determine whether herbicides were used as alleged. If Compensation Service's review confirms that herbicides were used as alleged, then a determination must be made as to whether service connection is in order. If Compensation Service's review does not confirm that herbicides were used as alleged, then a request should be sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. In this case, the Veteran's military occupational specialty was light weapons infantryman. As noted above, service personnel records show that the Veteran had foreign service in Okinawa, Japan, from September 1963 to October 1964. The Veteran's son testified that the Veteran was stationed at Camp Kubasaki. However, the RO has not taken efforts to further identify the approximate dates, location, and nature of the alleged exposure or to verify the alleged exposure as outlined in M21-1, Part IV, Subpart ii, Chapter 2, Section C, Subsection 10, Paragraph o. The Court of Appeals for Veterans Claims (Court) has held that evidentiary development procedures as provided for in VA's Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development outlined in M21-1). Consequently, remand is required for VA to properly develop and investigate the Appellant's allegations. See 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Provide the Appellant proper notice with respect to the cause of death claim based on herbicide exposure. In particular, this notice must include the procedural steps to verify such exposure as outlined in the VA Adjudication Procedures Manual M21-1 (M21-1), Part IV, Subpart ii, Chapter 2, Section C, Subsection 10, Paragraph o. Pursuant to the M21-1, the Appellant should be asked again to provide the approximate dates, location, and nature of the Veteran's alleged exposure to Agent Orange while stationed in Okinawa, Japan, in an attempt to verify herbicide exposure on a factual basis in locations other than the Republic of Vietnam. 2. Thereafter, in accordance with M21-1, Part IV, Subpart ii, Chapter 2, Section C, Subsection 10, Paragraph o, request herbicide exposure verification from Compensation Service for the periods when the Veteran served in Okinawa, Japan, to include from September 1963 to October 1964. If Compensation Service does not confirm herbicide exposure, refer the Veteran's pertinent information to the United States Army and Joint Services Records Research Center (JSRRC) with a request for verification of exposure to herbicides. 3. After completing the above development, readjudicate the claim on appeal, taking into consideration any newly acquired evidence. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Appellant, and return the appeal to the Board for appellate review, after the Appellant and her representative have had an adequate opportunity to respond. The appellant has 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). _________________________________________________ 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).