Citation Nr: 1752987 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-03 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2015 and January 2017, the Veteran testified before two different Veterans Law Judges (VLJs) regarding his claim of entitlement to service connection for ischemic heart disease. Both VLJs are still employed at the Board and will be signatories to this decision. Transcripts of the proceedings have been associated with the claims file. A June 2015 Board decision denied the claim. A February 2016 order of the Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) by the parties to vacate the Board decision and remand this matter to the Board for further appellate review. In September 2016, the Board remanded the case to afford the Veteran a new video hearing in accordance with the February 2016 JMR. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand is necessary for additional development. By way of background, the parties agreed in the JMR that the March 2015 Board hearing was not compliant with 38 C.F.R. § 3.103(c) because some of the Veteran's testimony was noted as "inaudible" on the hearing transcript, particularly regarding the location of his job duties in Thailand. The parties suggested that the Veteran be offered an opportunity for another Board hearing. The parties also agreed that VA failed to satisfy its duty to assist in attempting verification of herbicide exposure because the Joint Services Records Research Center (JSRRC) researched the incorrect dates and only searched for tactical herbicide exposure, and because the AFHRA response involved the incorrect dates and the wrong unit. A remand is necessary in compliance with the terms of the JMR. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2016, the Board offered the Veteran an opportunity for a new Board hearing. In August 2016, the Veteran replied that he wished to have a new videoconference Board hearing. The hearing was held in January 2017 via video conference. The Veteran testified that his claim is based upon the fact that his headquarters was in the bomb dump area, which was next to the perimeter of the base, and troops were constantly in and out of the area to get to their headquarters. He contended that his job was to physically load the bombs onto the B-52s. Bombs were stored first in the bomb dump, an area that was sprayed with Agent Orange. He reported that he physically handled the bombs. The February 2016 JMR and related March 2016 Informal Hearing Presentation (IHP) specifically indicate that the Board failed to adequately assist in developing the Veteran's claim. The January 2013 deferred rating decision contains instructions "to request verification from JSRRC" because the Veteran "states his occupation as a weapons mechanic put him at the perimeter of the base, as the weapons were located at the perimeter of the base." It further stated that the request should note Appellant served at U-Tapao, Thailand from June 1968 to June 1969. A July 2013 printout from the Defense Personnel Records Information Retrieval System ("DPRIS"), however, indicates research solely for the period from July 1968 to August 1968. Furthermore, the DPRIS response shows that only verification of exposure to "tactical herbicides" was provided. Additionally, the October 2013 Air Force Historical Research Agency (AFHRA) response provided information for the incorrect dates of service and incorrect unit. The correct information should be requested in order to comply with the February 2016 JMR and VA's overall duty to assist. Consequently, a remand is necessary. The Member or panel to whom a proceeding is assigned under § 19.3 of this part shall conduct any hearing before the Board in connection with that proceeding. Where a proceeding has been assigned to a panel, the Chairman, or the Chairman's designee, shall designate one of the Members as the presiding Member. The Member or Members who conduct the hearing shall participate in making the final determination of the claim, subject to the exception in § 19.11(c) of this part (relating to reconsideration of a decision). 38 C.F.R. § 20.707 (2017); citing 38 2107(c) (2012). A proceeding instituted before the Board may be assigned to an individual member of the Board or to a panel of not less than three members of the Board. A member or panel assigned a proceeding shall make a determination thereon, including any motion filed in connection therewith. 38 U.S.C. § 7102 (a). The United States Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that a Veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). As noted, the Veteran testified at Board hearings in front of two different VLJs in March 2015 and January 2017 regarding his claim of entitlement to service connection for ischemic heart disease. Pursuant to the Court's holding in Arneson, a letter was sent to the Veteran notifying him that he had the option of having a third hearing with a VLJ who would be assigned to the panel to decide his appeal. In May 2017, the Veteran indicated that he waived his right to appear at an additional hearing before at third BVA VLJ who will be assigned to decide his appeal. He indicated that his case should be processed immediately. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Accordingly, the case is REMANDED for the following actions: 1. Contact the JSSRC and request verification of possible exposure to herbicides while the Veteran served at U-Tapao Thailand from June 1968 to June 1969. Please note the Veteran's military occupational specialty was a weapons mechanic. Please consider the Veteran's contention that weapons were stored near the perimeter of the base, and therefore his duties caused him to frequently be near the perimeter of the base, which caused him to be exposed to herbicides that were sprayed at the perimeter of the bases in Thailand. Please provide verification if the Veteran was exposed to herbicides based upon his daily work duties and proximity to the perimeter of the base. 2. Contact the Air Force Historical Research Agency and determine the nature of the Veteran's daily duties in his MOS with the 4258th Munitions Maintenance Squadron stationed at U-Tapao Royal Thai Navy Airfield (RTNAF) in Thailand from June 1968 to June 1969. Then, after completing this research, and any additional development deemed necessary, please indicate whether it is as least likely as not that the weapons mechanics' duties would have put the Veteran near the perimeter of the base. 3. If the AOJ determines that any other sources should be contacted in order to obtain information that may assist in substantiating the Veteran's claims of herbicide exposure, an appropriate information request to such sources should be made. All requests and responses received from each contacted entity should be associated with the claims file. If the requested records are unavailable, a formal finding of unavailability should be prepared and associated with the claims file. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. 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). _____________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals ______________________________ NATHANIEL J. DOAN Veterans Law Judge, Board of Veterans' Appeals ___________________________ J. W. FRANCIS 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) (2017).