Citation Nr: 1744656 Decision Date: 10/06/17 Archive Date: 10/17/17 DOCKET NO. 14-29 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide agent exposure in Thailand. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1960 to May 1971 in the United States Air Force. He died in June 2012, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2017, the appellant testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, the RO must provide notice in accordance with Hupp v. Nicholson, 21 Vet. App. 342 (2007), which includes a statement of the conditions for which the Veteran was service connected at his death. The only notice letter of record is contained in a November 2012 Virtual VA entry, and incorrectly advises her that the Veteran was not service-connected for any disability at the time of his death. Remand is also necessary in order to obtain a medical opinion, which has not yet been provided. Private treatment records from prior to the Veteran's death indicate that he had heart disease, including coronary artery disease. His death certificate lists the primary cause of death as cardiopulmonary arrest, with severe anoxic brain injury and subdural hematomas as underlying causes. Other conditions contributing to death included congestive heart failure, chronic obstructive pulmonary disease, and obstructive sleep apnea. The appellant reports that the Veteran had numerous heart attacks during his lifetime, the earliest of which occurred in approximately 1975 at the age of 35, just four years after discharge. A December 1977 letter from the Veteran's private physician, Dr. P., confirms that the Veteran had sustained a heart attack prior to the date of the letter. The appellant reports that the Veteran had chest pain and discomfort throughout service, and was usually treated with Maalox. Service treatment records (STRs), including a January 1971 record for example, confirm the Maalox treatment. Other records, including a May 1962 record, document the Veteran's complaints of chest pain with no diagnosis rendered. A VA examination has not been afforded for this claim and must be provided. With regard to the allegations of herbicide agent exposure, Compensation & Pension Service has issued information concerning the use of herbicide agents in Thailand during the Vietnam War. In a May 2010 bulletin, Compensation & Pension Service indicated that it had determined that there was significant use of herbicide agents on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. According to a June 2014 report from the Defense Personnel Records Information Retrieval System (DPRIS), a primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although DOD indicated that the herbicide agent use was commercial in nature rather than tactical (such as Agent Orange), Compensation & Pension Service determined that there was some evidence that herbicide agents of a tactical nature, or that of a greater strength than the commercial variant, were used on the Thailand base perimeters. According to the bulletin, if a Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts found or direct basis. This applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. The designated Thailand bases were the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Stated another way, Compensation & Pension Service has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide agent exposure on a "facts found or direct basis" should be extended to those veterans. The appellant seeks presumptive service connection for ischemic heart disease based on herbicide agent exposure. At the hearing, she presented photographs which she reports show the Veteran near the perimeter of his military base performing duties in accordance with his Military Occupational Specialty (MOS). She presented argument that his MOS placed him over the perimeter as the power generators on which he worked were outside the perimeter. She also submitted a copy of a business card from a store in Thailand, with the Veteran's handwriting on the back depicting his flight itinerary from Udorn Royal Thai Air Force Base to Clark Air Force Base, with a 2-hour layover in Vietnam, suggesting that he also set foot in Vietnam. Her representative further argued that the Veteran crossed the perimeter as he obtained a sexually transmitted disease (STD) during his time in Thailand as there were no women on the base. STRs document that the Veterans' Thailand service spanned from April 20, 1964 to April 30, 1964 during his participation in "SEATO Tactical Air Exercise Air Boon Choo." With regard to the argument involving the STD, a November 1964 STR clearly states the Veteran, "developed NSU (nonspecific urethritis) in Thailand" and that the Veteran was treated with prescription medication. He sought treatment because continued to have discharge. The physician noted he had not had sexual contact since before the NSU started. A July 2014 Formal Finding was made that the Veteran had not been exposed to herbicide agents during his military service. However, the record is unclear as to which military base in Thailand the Veteran was assigned during his time there, and in light of the evidence submitted at the hearing, clarification is needed. Accordingly, the case is REMANDED 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. Provide the appellant with VCAA notice letter pertinent in compliance with Hupp v. Nicholson, 21 Vet. App. 342 (2007). The letter should include a correct statement regarding the conditions for which the Veteran was service connected at his death, which included a navicular fracture of the left wrist and a pilonidal cyst. See December 1971 Rating Decision. 2. Forward the claims file to a VA examiner to provide an opinion regarding the claim for service connection for the cause of the Veteran's death. (A) The examiner must provide an opinion as to whether any of the Veteran's service-connected disabilities (a navicular fracture of the left wrist and a pilonidal cyst) caused or contributed substantially or materially to Veteran's death. (B.) The examiner must then provide an opinion as to (i.) whether any of the Veteran's causes of death began during active service or are related to any incident of service, and (ii.) whether any of his causes of death manifested within one year of separation from service. In this regard, the examiner must consider the appellant's reports that the Veteran often had chest pain during service, for which he was treated with Maalox, and the service treatment records documenting chest pain, including the May 1962 record. The examiner must also consider the fact that the Veteran sustained multiple heart attacks in his lifetime, the earliest of which occurred in approximately 1975 at the age of 35. All examination findings, along with a complete explanation for all opinions expressed, must be set forth in the examination report. 3. Based on all available information, (including the photographs of the Veteran which the appellant reports depict him performing his MOS near the base perimeter, as well as the service treatment record indicating the Veteran crossed the base perimeter in Thailand as he obtained a sexually transmitted disease there), attempt to verify whether he was exposed to herbicide agents in Thailand through the U.S. Army Joint Services Records Research Center (JSRRC), in accordance with M21.IV.ii.1.H.5.b. In doing so, clearly document for the record the name of the military base to which the Veteran was assigned while stationed in Thailand. Additionally, to the extent possible, attempt to corroborate whether the Veteran set foot in Vietnam during a 2- hour layover from Udorn Royal Thai Air Force Base to Clark Air Force Base. The appellant should be notified of any negative results of these efforts. All notice provided, requests made, actions taken, and records and responses received must be documented in the record. 4. Thereafter, readjudicate the claim, considering all evidence. If the benefit sought remains denied, the appellant and her representative should be provided a SSOC. 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). _________________________________________________ M. TENNER 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) (2016).