Citation Nr: 1629574 Decision Date: 07/25/16 Archive Date: 08/04/16 DOCKET NO. 13-03 194A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for diabetes mellitus, claimed secondary to herbicide exposure. 3. Entitlement to service connection for a respiratory condition, to include chronic obstruction pulmonary disorder (COPD). 4. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to December 1973. He died on May [redacted], 2012. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2011 and March 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, and a May 2013 decision by the VARO in Philadelphia, Pennsylvania. The Board notes that at the time of his death, the Veteran had an appeal pending as to the issues of service connection for hepatitis C, COPD, diabetes mellitus, a head injury, a back disability, and hypertension. Following the Veteran's death, the appellant applied to be substituted as the claimant for purposes of processing these claims to completion, and that status was granted by the agency of original jurisdiction (AOJ) pursuant to 38 U.S.C.A. § 5121A. Accordingly, the appellant has been substituted as the claimant for the purpose of the claims pending at the date of the Veteran's death. Id. In June 2012, the appellant filed an application for dependency and indemnity compensation (DIC) benefits, to include a claim of service connection for the cause of the Veteran's death. In May 2013, the RO denied service connection for the cause of the Veteran's death. In March 2014, the appellant testified in person during a Board video hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In May 2014, the Board granted service connection for residuals of a head injury, to include headaches. The Board also remanded the claims of service connection for hepatitis C, diabetes mellitus, COPD, a back disability, and hypertension, for the further action. The Board also remanded, for issuance of a statement of the case (SOC) the claim of service connection for the cause of the Veteran's death, noting that during her February 2014 hearing, the appellant had expressed disagreement with the RO's May 2013 denial of that claim. In April 2015, the RO issued an SOC addressing the issue of entitlement to service connection for the cause of the Veteran's death and the appellant filed a VA Form 9 (Appeal to the Board of Veterans' Appeals) that same month. On her VA Form 9, the appellant checked the box indicating her desire to testify at a Board hearing in Washington, DC. In June 2015, the RO granted service connection for dextroscoliosis of the thoracic spine (claimed as back pain) and a disability rating and an effective date were assigned. (A copy of the decision is contained in the Veteran's VBMS file.) That matter has accordingly been resolved and is not before the Board. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). In July 2015, after accomplishing the requested action with regard to the remanded claims of service connection for hepatitis C, diabetes mellitus, COPD, and hypertension, the RO issued a supplemental SOC (SSOC) wherein it continued to deny those claims. The matters were thereafter returned to the Board. In May 2016, the appellant provided testimony regarding the claim of service connection for the cause of the Veteran's death. This hearing was held before VLJs different from the one who held the 2014 hearing. A transcript of that hearing is also of record and is contained in the Veteran's VBMS file. The Board notes that VLJs who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C.A. § 7102(a) (West 2014). Thus, when an appellant has had appellate hearings before two VLJs on one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is ready for appellate review. In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must also be provided the opportunity for a hearing before all three VLJs involved in a panel decision. In the instant case, the May 2016 hearing was held before two VLJs, both of whom are participating in the current decision. Thus, the appellant has been afforded the opportunity to present testimony before all three VLJs involved in this panel decision, consistent with Arneson. 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 Pursuant to 38 U.S.C.A § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See 38 U.S.C.A § 1310 (West 2014); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2015). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). In addition, certain chronic diseases, including hypertension and diabetes mellitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The law further provides that there are certain diseases, such as type II diabetes mellitus and ischemic heart disease, including atherosclerotic cardiovascular disease, such as coronary artery disease, that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated 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). The Veteran died in May 2012. The cause of death was listed on his certificate of death as hypertensive atherosclerotic cardiovascular disease, with COPD and diabetes listed as other significant conditions contributing to death. The appellant has asserted her belief that the Veteran's death was due to his exposure in service to herbicides while he was stationed in Thailand. In this regard, the Board notes that 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) 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 is to be conceded on a direct/fact-founds basis. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. The M21-1 provides further that if a veteran served at a U.S. Army Base in Thailand during the Vietnam era as a member of a military police unit or with a military police occupational specialty, herbicide exposure is to be conceded "on a direct/fact-founds basis if the Veteran states his duty placed him at or near the base perimeter." Id. A review of the Veteran's service personnel records and DD Form 214 shows that he was a member of the U.S. Army and that he had 8 months and 12 days of foreign and/or sea service. His DD Form 261 reflects that he was stationed in Sattahip, Thailand. During that time, his military occupational specialty was that of a clerk typist. The record does not establish that the Veteran served in the U.S. Air Force or that he served in the U.S. Army as a member of a military police unit or with a military police occupational specialty. The record also does not establish that the Veteran served at a specified RTAFB where herbicide exposure can be conceded. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b (listing the following RTAFBs: U-Tapao; Ubon; Nakhon Phanom; Udorn; Takhli; Korat, and Don Muang). Accordingly, herbicide exposure cannot be conceded based on the evidence currently of record pursuant to the above cited authorities. The Board notes, however, that in May 2014, the Board directed the AOJ to undertake development in accordance with the M21-1 to determine whether the Veteran was in fact exposed to herbicides during his active duty service in Thailand. The M21-1 sets forth procedures to verify exposure to herbicides based on service in Thailand during the Vietnam era. Specifically, 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 the Veteran does not provide the requested information, the AOJ is to refer the case to the U.S. Army and Joint Services Records Research Center (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 AOJ did send to the appellant a June 2014 letter wherein it requested that she provide specific information concerning the dates, location, and nature of the Veteran's alleged herbicide exposure, to which she did not respond, the AOJ did not then refer the case to the JSRRC coordinator. While 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. Accordingly, the Board finds that the claims for service connection for diabetes mellitus and for the cause of the Veteran's death must be remanded for the AOJ for completion the development required by the M21-1 in cases such as this one. A remand is also required to ensure compliance with the terms of the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance) The Board also points out that during her May 2016 Board hearing, the appellant's representative stated that the Veteran's service personnel records indicated service with the Joint U.S. Military Assistance Group Thailand, or JUSMAGTHAI, in Sattahip, Thailand. When questioned about the Veteran's military duties, the appellant stated that she remembered the Veteran telling her that the military did send him to different bases while stationed in Thailand and that "Utapao sounds familiar." The representative pointed out that geographically Utapao and Sattahip were in closed proximity to one another. The appellant also recalled the Veteran telling her that he went to Vietnam and rode along with the military police to take rations and mail to prisoners. The appellant also stated that in addition to his duties as a clerk typist, the Veteran was involved with supply and transportation. Given the appellant's testimony, 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. Also, in consideration of the appellant's testimony, efforts should also be undertaken to verify whether the Veteran ever set foot in Vietnam during his Vietnam era service As to the claim of service connection for hypertension, the appellant has contended that service connection for that disability may be warranted as secondary to the Veteran's diabetes mellitus. As such, the claim of service connection for hypertension is inextricably intertwined with the diabetes claim, as the resolution of the latter matter may have bearing on whether the former can be granted. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). Accordingly, the Board finds that the claim of service connection for hypertension must be deferred pending re-adjudication of the diabetes mellitus claim. Regarding the claim of service connection for hepatitis C, the Veteran's service records shows that the Veteran was evacuated out of Thailand in July 1972 with diagnoses of heroin dependence and viral hepatitis. The Veteran was then treated at Valley Forge General Hospital in Phoenixville, Pennsylvania. In remanding the claim of service connection for hepatitis C in its 2014 action, the Board directed the AOJ to attempt to obtain records related to the Veteran's treatment at Valley Forge General Hospital in 1972. It does not appear that any attempt was made to obtain these records. Rather, a notice letter issued in June 2014 states that the Valley Forge Army Hospital no longer exists and directs that a letter should be sent to the appellant notifying her of that fact and requesting that she submit any records in her possession. However, the fact that Valley Forge General Hospital no longer exists does not equate to an automatic finding that the records from that facility do not exist or that efforts to obtain them would be futile. According to the National Archives and Records Administration's (NARA's) website, records for Valley Forge General Hospital "may still be available, even if the service member's OMPF [(Official Military Personnel File)] was destroyed in our 1973 fire." http://www.archives.gov/st-louis/military-personnel/clinical-record-libraries.html. Consequently, a remand is warranted to attempt to obtain these records. In its 2014 action, the Board also directed the AOJ to obtain a medical opinion regarding the likelihood that the Veteran's hepatitis C was related to service, to include as a result of intravenous drug use in service. A VA clinician rendered a negative nexus opinion in April 2015. The opinion, however, is inadequate to rely upon, as the clinician merely stated that "although the STRS noted evidence of drug abuse and viral hepatitis, there were no clear evidence that the veteran was diagnosed nor treated for Hepatitis C while in military service." This does not address fully the question posed by the Board in its 2014 remand directives and additional development, as set forth below, is therefore required. See Stegall, supra. Regarding the claim of service connection for a respiratory disorder, to include COPD, in its May 2014 remand, the Board directed the AOJ to obtain a medical opinion as to the likelihood that any diagnosed respiratory disorder, to include COPD, had its onset in, or is otherwise related to, service, to include the multiple instances of in-service treatment for respiratory infections. An opinion was obtained in April 2015. In providing a negative nexus opinion, the clinician stated that "although the STRS noted treatment for respiratory conditions, ie. 'sore throat, ear ache, co[u]ghing-productive', there w[as] no evidence of a diagnosis []or treatment for COPD while in military service." The clinician then opined that "[i]t is [at] least as likely as not that the veteran's COPD was caused by or result of the veteran's 'Tobacco use disorder,'" stating that "[i]t is well known clinically that tobacco use predisposes the development of COPD." Although the clinician proffered an etiologic theory for the Veteran's COPD, the clinician did not definitively attribute the Veteran's COPD to his history of tobacco use and phrasing of the opinion leaves open the possibility that it is also at least as likely as not that the Veteran's COPD was caused by something other than the Veteran's tobacco use. Furthermore, although the clinician noted the Veteran's in-service treatment for respiratory symptoms, he did not discuss whether such symptoms were not early manifestations of the Veteran's later-diagnosed COPD. Rather, it seems that the clinician relied heavily on the absence of an in-service diagnosis of COPD. However, a disorder need not be diagnosed in service to be service-connected, as service connection may be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Given these inadequacies, a remand of the claim of service connection for a respiratory disorder for further development, as set forth below, is warranted. Further, during her 2014 Board hearing, the appellant indicated that the Veteran had been treated at the Cleveland, Ohio, VA Medical Center (VAMC) beginning in 1972. Although it is not entirely clear that he received treatment at that facility related to his respiratory symptoms, as opposed to his hepatitis C, the Board directed the AOJ to attempt to obtain all treatment records from that facility from 1972 forward. Documents associated with the Veteran's Virtual VA file state that a thorough search of the records system revealed no records that were responsive to the AOJ's request. However, a report of general information dated in January 2015 indicates that records dated from 1997 forward were in the system. The claims folder currently contains no records of treatment from the Cleveland VAMC. Although it is not clear from the report of general information whether the records dated from 1997 forward pertained to records from the Cleveland VAMC, as opposed to the Baltimore, Maryland, VAMC, which records are associated with the claims folder, the Board finds that on remand, the AOJ should seek clarification of whether any records of treatment of the Veteran at the Cleveland VAMC are extant and should associate all treatment records from the facility with the claims folder. Accordingly, the case is REMANDED to the AOJ 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 National Personnel Records Center (NPRC) and/or any other appropriate repository and request all records pertaining to treatment of the Veteran at Valley Forge General Hospital, to specifically include treatment in July and August 1972 on April 10, 2005. The Board is aware that Valley Forge General Hospital has closed. However, as stated above, NARA's website's indicates that records for Valley Forge General Hospital "may still be available, even if the service member's OMPF was destroyed in our 1973 fire." Accordingly, the AOJ must make appropriate attempts to obtain the Veteran's in-patient treatment records for treatment from Valley Forge General Hospital. The contacted facility(ies) should be asked to respond by indicating that: (1) they have the requested records and are forwarding them; or, (2) they do not have any records for the appellant and can certify that the records do not exist, were retired to storage, destroyed, or sent to another destination. If they were retired to storage, they must be recalled. If they were sent to another destination, the records must be requested from the other location. All such available documents should be associated with the claims folder. Also, all attempts to procure those records should be documented in the file. If the AOJ cannot obtain any relevant records, a notation to that effect should be inserted in the file. 2. The AOJ should again contact the Cleveland VAMC with a request for any and all outstanding, pertinent records of evaluation and/or treatment of the Veteran. The AOJ is directed to the January 2015 report of general information wherein it is indicated that the contacted person "could only see records from 1997 going forward." The AOJ should clarify whether that statement was referring to records from the Cleveland VAMC or to records from another VAMC. All records and/or responses received should be associated with the claims file. 3. The AOJ should send a request to the JSRRC in an effort to verify the Veteran's exposure to herbicides consistent with his service in Thailand beginning in November 1971. The JSRRC should be provided with any necessary documentation, to include any relevant service records and the transcript of the 2016 Board hearing detailing the Veteran's duties that required him to be at or near the base perimeters. The JSRRC's response should be documented in the record. 4. The AOJ should 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. 5. The AOJ should arrange for review of the Veteran's claims folder by a physician with expertise in infectious diseases. The clinician is requested to review the claims folder and discuss the etiology and the onset of the Veteran's hepatitis C. A history of all of the Veteran's potential risk factors of hepatitis C infection should be detailed in full and the examiner must list and discuss all documented and reported pre-service, in-service, and post-service risk factors. The examiner should then rank the documented risk factors relative to the probability that any hepatitis C infection is etiologically related to the risk factor. The examiner is then requested to provide an opinion as to whether it is at least as likely as not that any diagnosed hepatitis C is related to the Veteran's active military service, to include his in-service drug use. The clinician should pay particular attention to the documented treatment in service for viral hepatitis and should discuss the likelihood that the viral hepatitis diagnosed in service was caused by the hepatitis C virus and the likelihood that the Veteran's later-diagnosed hepatitis C can be attributed to the viral hepatitis diagnosed in service. 6. The AOJ should arrange for review of the Veteran's claims folder by a physician with expertise in respiratory disorders. The examiner should clearly identify any pulmonary/respiratory disease from which the Veteran suffered. 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 related to service. In addressing the above, the clinician must consider and discuss all pertinent medical and other objective evidence, to include the Veteran's in-service treatment for respiratory symptoms and the appellant's lay statements regarding the continuity of respiratory symptoms after service. The clinician is directed to consider the appellant's contention that the Veteran should have been diagnosed in service as having COPD as opposed to bronchitis and should comment on whether the Veteran's in-service symptoms were early manifestations of his later-diagnosed COPD. The bases for the opinion(s) provided should be explained in detail. The clinician must provide support for his/her opinion(s). This includes reference to lay or medical evidence contained in the claims folder and to known medical principles relied upon in forming the opinion. 7. After undertaking any other development deemed appropriate, the AOJ should readjudicate the issues on appeal. In doing so, the AOJ should consider whether any additional development is required in light of any information/evidence received in the form of treatment records and/or responses from the JSRRC/NPRC. If any benefit sought is not granted the appellant should be furnished with an SSOC and afforded an opportunity to respond before the record is returned 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). 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). ______________________________ ______________________________ Jonathan Hager Eric S. Leboff Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ________________________________ Victoria Moshiashwili 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).