Citation Nr: 1752250 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-33 883A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI) (claimed as head injury). 2. Entitlement to service connection for glioblastoma multiforme stage 4 (claimed as brain cancer), to include as secondary to a claimed traumatic brain injury and/or due to herbicide agent exposure. 3. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status. 4. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1969 to November 1973. The Veteran passed away in January 2012. The Appellant is the Veteran's surviving spouse and has been substituted as the claimant. See July 2012 Deferred Rating Decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2017, the Appellant testified during a video conference hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND Prior to his death, the Veteran asserted that his diagnosed glioblastoma multiforme was caused by exposure to herbicide agents while stationed at Korat Royal Thai Air Force Base (Korat RTAFB) in 1971 and 1972. As an alternative theory of entitlement, the Veteran asserted that his glioblastoma multiforme was caused by a head injury he received while at Korat RTAFB in September 1972. The Veteran also claimed entitlement to SMC based on a need for aid and attendance. After the Veteran's death, the Appellant perfected an appeal as to these claims, as well as entitlement to service connection for the cause of the Veteran's death, which as shown by the Veteran's death certificate, was in fact glioblastoma multiforme (stage 4). Concerning in-service exposure to herbicide agents, the Veteran had no service in Vietnam. The Veteran's service personnel records include several performance evaluations from his service in Thailand. For instance, January 1972 and September 1972 performance reports show that the Veteran was a weapons load crew member at the 388th Munitions Maintenance Squadron at Korat RTAFB. He served in Thailand from October 1971 to November 1972, where he loaded and unloaded all types of conventional munitions in the F-4E aircraft weapons systems. Additionally, he installed, removed, and operationally checked pylons, adapters, launchers, missile rails, dispensers, and multiple-ejector racks. During her April 2017 video conference hearing, the Appellant reported that the Veteran worked around the flight line in close proximity to the perimeter while stationed at Korat RTAFB. She also noted that he stated he would go to a little building at the end of the runway near the perimeter of that section to meet airplanes in order to de-arm them. Id. She stated the Veteran reported that there was a gross problem of vegetation at the end of the runways that needed to be sprayed with herbicide agents in order to remove the vegetation. Importantly, she referenced photographs of the Veteran showing the Veteran near the end of the runway. The Board has reviewed the record, and although copies of photographs were submitted for review by VA, the electronic images are not visible. As such, the Board is unable to see the photographs described by the Appellant at the hearing, or those otherwise already of record. On remand, the Appellant should be asked to re-submit clear copies of the back and front of each photograph she would like considered by VA in this adjudication. Then, in accordance with VA's Adjudication Procedure Manual, the AOJ should submit a request to the Joint Services Records Research Center (JSRRC) for a formal finding as to whether sufficient information to verify herbicide agent exposure exists. Notwithstanding the development requested above, there are also open medical questions as to whether the Veteran's fatal glioblastoma multiforme stage 4 was directly related to service. Although the Appellant has submitted a February 2012 opinion from Dr. J.V. indicating that it is at least as likely as not that high-level exposures to materials such as Agent Orange "may have" caused, contributed or aggravated the Veteran's malignant brain tumor, such is couched in terms of possibility rather than probability, and is therefore too speculative to award service-connection, even if such exposure were conceded at this time. There also appear to be no medical opinions of record addressing whether the Veteran's glioblastoma multiforme was related to the Veteran's documented in-service head injury. Finally, the Veteran had diabetes at the time of his death, and it has been asserted that such disability caused or contributed to the Veteran's death, to include his glioblastoma multiforme. On remand, medical opinions should be obtained addressing each theory of entitlement. The claim for special monthly compensation based on the need for aid and attendance or housebound status is inextricably intertwined with the service-connection claims on appeal, which are being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to special monthly compensation based on the need for aid and attendance or housebound status cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is REMANDED for the following action: 1. Ask the Appellant to resubmit clear copies of the photographs (front and back) previously submitted that she wishes to be considered in the adjudication of her appeal. 2. Upon receipt of these photographs, the AOJ should take any appropriate steps consistent with the procedures outlined in the M21-1 to attempt to verify the Veteran's claimed herbicide agent exposure while assigned to Korat RTAFB. As noted above, the Veteran served as a weapons load crew member at the 388th Munitions Maintenance Squadron at Korat RTAFB from July 1971 to October 1972. The AOJ should refer the case to the JSRRC for verification of exposure to herbicide agents or to make a formal finding that sufficient information required to verify herbicide agent exposure does not exist. 3. The AOJ should refer the Veteran's claims folder to a suitably qualified VA examiner for VA medical opinions as to the nature and etiology of the Veteran's glioblastoma multiforme and any residuals of his in-service head injury that may have existed at the time of the Veterans' death. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and statements. It should be noted that the Veteran was competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Upon review of the record, the examiner should respond to each of the following: (i) Is at least as likely as not (50 percent or greater probability) that, prior to his death, the Veteran suffered any residuals to his in-service head injury, to include glioblastoma multiforme? Please specify each identified residual. If the Veteran suffered a TBI, this should be made clear. (ii) For each head injury residual identified, is it at least as likely as not that such caused or contributed to the Veteran's death? (iii) If the examiner finds that the Veteran's glioblastoma multiforme was not caused by the in-service head injury, the examiner should also state whether it is at least at likely as not that the Veteran's glioblastoma multiforme was causally or etiologically related to his military service, to specifically include in-service exposure to herbicide agents or pesticides. For the purposes of providing this medical opinion only, the examiner should assume as true that the Veteran was exposed to herbicide agents and pesticides during service. The examiner is asked to review and comment on the February 2012 private medical opinion of Dr. J.V. stating that exposures to Agent Orange may have caused, contributed to, or aggravated the Veteran's malignant brain tumor. (iv) Is it at least as likely as not that the Veteran's diabetes caused or contributed to the Veteran's cause of death, to include his fatal glioblastoma multiforme? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A clear rationale for all opinions is required. A copy of the claim file must be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service. 5. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal on the basis of the additional evidence of record. If the determinations remain adverse to the Appellant, she and her representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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). 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). _________________________________________________ V. CHIAPPETTA 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).