Citation Nr: 1745263 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 13-15 891 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to service connection for ischemic heart disease, claimed as due to in-service Agent Orange exposure. 2. Entitlement to service connection for diabetes mellitus type II, claimed as due to in-service Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to November 1968. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions dated December 2011 and July 2012, in which the RO denied entitlement to service connection for ischemic heart disease and diabetes mellitus type II, both claimed as due to exposure to Agent Orange. The Veteran filed a notice of disagreement regarding both issues in July 2012. The RO issued two separate statements of the case (SOC) in April 2013, and the Veteran filed a substantive appeal (appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in May 2013. In September 2016, the he Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA claims processing systems. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action on the claims for ischemic heart disease and diabetes mellitus type II, claimed as due to in-service Agent Orange exposure, is warranted. The Veteran has contended that his ischemic heart disease and diabetes mellitus type II are a result of his military service in Thailand. Specifically, while he served on Nakhon Phanom Royal Thai Air Force Base (RTAFB), he reportedly worked on C-123 aircraft, which were used for defoliating the nearby Ho Chi Minh trail and other spots in Laos. He also claimed that he saw defoliated trees from the tent in which he slept on base. See, e.g., September 2016 Board Hearing Transcript. The record contains current diagnoses of coronary artery disease (an ischemic heart disease) and diabetes mellitus type II, both of which are diseases recognized by the VA Secretary. See 38 U.S.C.A. § 3.309(e) (2016). Therefore, what remains for consideration is whether the Veteran was exposed to such herbicides during service. Service personnel records reflect that the Veteran was stationed at Nakhon Phanom Royal Thai Air Force Base (RTAFB) from July 1966 to July 1967. Additionally, between July 6, 1966 and August 29, 1966, he served with the 606th Air Control Squadron as an aircraft pneudraulic repairman for the T-28, U-6A, and C-123. In this regard, VA's Adjudication Procedures Manual, M21-1, notes that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, i.e., February 28, 1961, to May 7, 1975, to include Nakhon Phanom Air Base. See M21-1 at IV.ii.1.H.5. Such notes that the majority of troops in Thailand during the Vietnam Era were stationed at the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served in the Air Force 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 evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. If the evidence does not indicate that a Veteran served on a specified RTAFB in such a capacity, he should be requested to furnish the approximate dates, location, and nature of alleged exposure and, if he does, a requested should be sent to Joint Services Records and Research Center (JSRRC) for verification of exposure to herbicides. In this case, in a December 2011 Memorandum, JSRRC found that, because the Veteran did not serve in an assignment that would have placed in along the base perimeter of Nakhon Phanom RTAFB, that organization could not confirm whether the Veteran was exposed to Agent Orange. However, the Board notes that, in June 2015, VA published an interim rule establishing a presumption of exposure to certain herbicides for veterans who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (Agent Orange) during the Vietnam era and later develop an Agent Orange presumptive condition. 80 Fed. Reg. 35246-01 (June 19, 2015) (now codified at 38 C.F.R. § 3.307 (a)(6)(v) (2016)). See also Institute of Medicine, National Academy of Sciences, Post-Vietnam Dioxin Exposure in Agent Orange Contaminated C-123 Aircraft 10 (2015). For purposes of this paragraph, "regularly and repeatedly operated, maintained or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. Such exposure constitutes an injury under 38 U.S.C.A. § 101 (24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309 (e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval or air service. 38 C.F.R. § 3.307 (a)(6)(v). VA has also published a list of military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. The Veteran's units of assignment are not listed among those currently recognized in VA's current list of military personnel who had regular and repeated exposure to contaminated ORH C-123s. Nonetheless, the claims processing procedures for C-123 exposure claims appear to be in the process of development. See M21-1, Part IV.ii.1.H.3. Accordingly, this matter should be reviewed for development and adjudication by the AOJ, in the first instance. On remand, the AOJ should take further, appropriate action to attempt to verify the Veteran's alleged Agent Orange exposure, particularly between July 6, 1966 and August 29, 1966. Following such development, adjudication of the claim should include a specific determination as to whether the Veteran had "regular and repeated contact" with C-123 aircraft so as to warrant a finding of likely in-service herbicides exposure, to include Agent Orange. While these matter are on remand, to ensure that all due process requirements are met and the record is completed, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA treatment records. Notably, as VA treatment records dated through December 2015 have been associated with the claims file, the AOJ should obtain pertinent records of VA treatment since that date. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to any claim(s) on appeal (particularly, as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1) (West 2014); but see also 38 U.S.C.A. § 5103 (b)(3) (clarifying 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 (2016). 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 (2016). 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 by the VCAA prior to adjudicating the claims on appeal. Adjudication of the claims should include consideration of all additional evidence added to the record since the last adjudication. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain any outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, dated since December 2015. Follow the provisions of 38 C.F.R. § 3.159 as regards obtaining records from Federal facilities in procuring such records. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to one or more claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) 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 and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Contact the JSRRC (and any other relevant facility/ies) to request detailed unit information for the 606th Air Control Squadron at Nakhon Phanom Air Force Base, for the period from July 6, 1966 to August 29, 1966. Appropriate action should be undertaken to determine whether the Veteran regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Any follow-up action recommended should be accomplished. For example, if any contacted entity references a more appropriate facility from which to obtain the above-requested information, such facility should be contacted. All requests and responses received should be associated with the claims file. 5. 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. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above actions, and any other notification or development action deemed warranted, adjudicate the claims for service connection for ischemic heart disease and diabetes mellitus type II, claimed as due to Agent Orange exposure, on the merits, in light of all pertinent evidence (to include all evidence received since the last adjudication of the claim in the April 2013 SOC) and legal authority. Adjudication of the claims should include specific determination as to whether the Veteran had "regular and repeated contact" with C-123 aircraft so as to warrant a finding of likely in-service herbicides exposure, to include Agent Orange. 7. If any claim(s) on appeal remain(s) 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 an 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 any benefit 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. 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 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). _________________________________________________ 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 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 the appeal. 38 C.F.R. § 20.1100(b) (2016).