Citation Nr: 1701628	
Decision Date: 01/24/17    Archive Date: 02/09/17

DOCKET NO.  14-05 964	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been received to reopen the issue of service connection for the cause of the Veteran's death.

2.  Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide (Agent Orange) exposure.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Appellant, her daughter (J.W.), her son-in-law (R.W.), and her caretaker (C.T.)

ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active duty service in the United States Air Force from September 1954 to July 1979.  The Veteran died in August 2005.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from multiple rating decisions dated in June 2009, October 2009, March 2010, and November 2010 from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  Jurisdiction of case has since been transferred to the RO in Waco, Texas.  That office forwarded the appellant's appeal to the Board.  

In the present case, the RO previously denied service connection for the cause of the Veteran's death in a final, January 2006 rating decision.  The appellant filed a claim to reopen in January 2009.  The RO denied the appellant's claim to reopen in the multiple rating decisions on appeal listed above.  On this issue, additional, pertinent evidence was submitted and received prior to the expiration of the one-year appeal period for each of the rating decisions listed above for the cause of death appeal.  See 38 C.F.R. § 3.156(b) (new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period).  Thus, any interim submissions before finality attached must be considered by VA as part of the pending appeal for the January 2009 claim to reopen service connection for the cause of the Veteran's death.  See also Bond v. Shinseki, 659 F.3d 1362, 1366-68 (2011); Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007); see also Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).

This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  

In September 2016, the appellant, her daughter, her son-in-law, and her caretaker testified at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the VBMS folder.       

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 Board will adjudicate and reopen the new and material evidence issue.  However, the underlying merits of the cause of death issue will be addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran died in August 2005 at a private hospital.  The amended death certificate lists the immediate causes of death as ischemic cardiomyopathy, coronary artery disease, and type II diabetes mellitus.  The amended death certificate also lists the contributory causes of death as congestive heart failure, atrial fibrillation, and COPD.  At present, all of these conditions are nonservice-connected.  No autopsy was performed.   


2.  In a January 2006 rating decision, the RO previously considered and denied a claim for service connection for the cause of the Veteran's death.  

3.  The appellant was notified of the January 2006 rating decision and of her appellate rights, but she did not appeal.  There was also no evidence received within one year of the issuance of this decision. 

4.  The evidence received after the January 2006 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran's death and raises a reasonable possibility of substantiating the claim.   


CONCLUSIONS OF LAW

1.  The January 2006 rating decision, which denied service connection for the cause of the Veteran's death, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2006).

2.  The evidence received subsequent to the January 2006 rating decision is new and material, and the claim for service connection for the cause of the Veteran's death is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  

With regard to the new and material evidence issue for the cause of the Veteran's death, in a recent opinion, VA's Office of General Counsel concluded that 38 U.S.C.A. § 5103(a)(1) did not require VA, upon receipt of a previously denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim.  See VAOPGCPREC 6-2014 (November 21, 2014).  The Office of General Counsel determined that Kent v. Nicholson, 20 Vet. App. 1 (2006), was no longer controlling insofar as it construed former 38 U.S.C.A. § 5103(a) to require that VA provide case-specific notice to a claimant who had filed an application to reopen a previously denied claim.  

To summarize, in a claim to reopen, while VA is not required to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, it is required "to explain what 'new and material evidence' means."  Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012).

In the present case, none of the VCAA letters discussed or defined new and material evidence.  In any event, this defect is not prejudicial to the appellant, given the completely favorable disposition of the new and material evidence issue on appeal, since the Board is reopening the cause of death issue.  See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

With regard to the underlying service connection for the cause of the Veteran's death issue, the Board finds that further evidentiary development is needed and will be discussed in the remand below.  Therefore, an analysis regarding compliance with the VCAA for this issue is not required at this time.  

II.  Background 

The Veteran died in August 2005 at a private hospital.  The amended death certificate lists the immediate causes of death as ischemic cardiomyopathy, coronary artery disease, and type II diabetes mellitus.  The amended death certificate also lists the contributory causes of death as congestive heart failure, atrial fibrillation, and COPD.  At present, all of these conditions are nonservice-connected.  No autopsy was performed.   

At the time of his death in August 2005, service connection was established for only one disability - degenerative disc disease and arthritis of the low back, rated as 60 percent disabling.  

The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death.  38 C.F.R. § 3.312(a).  A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto.  38 C.F.R. § 3.312(b).  A contributory cause of death is one which contributes substantially or materially to death, that it combined to cause death, or aided or lent assistance to the production of death.  38 C.F.R. § 3.312(c).  It is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection.  38 C.F.R. § 3.312(c)(1).  

The appellant contends that several of the Veteran's causes of death listed on his death certificate (specifically coronary artery disease and type II diabetes mellitus) were the result of his exposure to herbicides while the Veteran was stationed in Thailand, Korea, or Vietnam during active service in the 1960s.  Thus, she believes that these verified causes of the Veteran's death should be service-connected.  See September 2005 DIC claim; November 2009, January 2010, October 2010 appellant statements; May 2011 NOD; January 2014 VA Form 9.  

The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  In addition, a veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, as determined by the DOD, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(a)(6)(iv); 76 Fed. Reg. 4,245 - 4,247 (January 25, 2011).  

Type II diabetes mellitus and coronary artery disease are both listed as diseases associated with herbicide exposure for purposes of the above presumption.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 3.309(e).  To warrant service connection, Type II diabetes mellitus and coronary artery disease may manifest to a degree of at least 10 percent at any time after service.  38 C.F.R. § 3.307(a)(6)(ii).  In this regard, VA and private treatment records dated from 2000 to 2005 confirm that the Veteran had  type II diabetes mellitus and coronary artery disease, which were both manifest to a degree of at least 10 percent or more after service.  38 C.F.R. § 3.307(a)(6)(ii).  During his lifetime, the Veteran therefore had both type II diabetes mellitus and coronary artery disease, which are disorders associated with herbicide exposure for purposes of this presumption.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).  In addition, it is undisputed that both type II diabetes mellitus and coronary artery disease were causes of the Veteran's death.  See November 2009 amended death certificate.  

Therefore, the central question in the present case is whether the evidence establishes on a factual basis that the Veteran was exposed to Agent Orange or other herbicides while serving in Thailand or Korea, or whether he is presumed to have been exposed to herbicides on the basis of any Vietnam or Korean DMZ service.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), (iv); 3.313(a).  

III.  New and Material Evidence

In an earlier January 2006 rating decision, the RO denied a claim for service connection for the cause of the Veteran's death.  There were several reasons for the denial.  There was no evidence of record that the Veteran's service-connected low back disability contributed to his death.  In addition, the Veteran's STRs did not reveal any cardiovascular or lung condition, which were the causes of death listed on the Veteran's death certificate.  There was no medical evidence of record that the Veteran's death was caused by or related to his active service from which he retired in 1979.  In addition, there was no evidence showing service in Vietnam for purposes of applying the herbicide presumption.  The Veteran was notified of the January 2006 rating decision and of his appellate rights, but he did not submit a notice of disagreement, or new and material evidence, within one year of the notice of decision.  Therefore, the January 2006 rating decision became final for the cause of death issue.  38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2006).

The appellant filed her claim to reopen service connection for the cause of the Veteran's death in January 2009. Although the AOJ already has reopened the cause of death claim and adjudicated it on the underlying merits (on a de novo basis in the October 2013 Statement of the Case (SOC)), the Board has a jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)).  See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992).  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the cause of death claim, before proceeding to readjudicate the underlying merits of the claim. If the Board finds that no new and material evidence to reopen the cause of death claim has been offered, that is where the analysis must end. 

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2016).  

The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim.  Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).  The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).  That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim.  Shade, 24 Vet. App. at 119.    

For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Here, the Board finds that new and material evidence has been received for the cause of death issue, subsequent to the final January 2006 rating decision.  See 38 C.F.R. § 3.156(a).  The appellant and her family have provided additional lay testimony and lay statements detailing how the Veteran was allegedly exposed to Agent Orange or other herbicide while stationed in Thailand, Korea, and Vietnam.  See October 2010 appellant statement; May 2011 NOD; September 2016 hearing testimony.  Specifically, the appellant and the Veteran's son-in-law testified at the September 2016 hearing that during the Veteran's lifetime, he told his family members that he had temporary duty (TDY) assignments in Vietnam, Korea, and Thailand.  The Veteran told them that his military occupation specialty (MOS) as a vehicle mechanic required him to repair vehicles that had broken down on the perimeters of bases in Vietnam, Korea, and Thailand, where Agent Orange was sprayed to clear the vegetation.  In this way, the Veteran reported that he was exposed to Agent Orange or other herbicide during active duty.  In addition, the Board sees that a November 2009 amended death certificate added type II diabetes mellitus as a cause of the Veteran's death.  Notably, all of these details were not in the record at the time of the prior, final January 2006 rating decision.  

Assuming the credibility of the appellant and her family's lay statements and hearing testimony, as well as the November 2009 amended death certificate, for purposes of reopening, the Board finds that this additional evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the cause of death claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  The Court has held that a lay statement, when competent, can be material for purposes of reopening a claim.  Shade, 24 Vet. App. at 122.  Accordingly, the Board concludes that new and material evidence has been presented to reopen the appellant's previously denied claim for service connection for the cause of the Veteran's death.  However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the cause of death claim can be addressed.


ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for the cause of the Veteran's death is reopened, and to this extent only, the appeal is granted.


REMAND

However, before addressing the merits of the cause of death issue on appeal, the Board finds that additional development of the evidence is required.

The appellant contends that several of the Veteran's causes of death listed on his death certificate (specifically coronary artery disease and type II diabetes mellitus) were the result of his exposure to herbicides while he was stationed in Thailand, Korea, and Vietnam during active service in the 1960s.  The Board acknowledges the Veteran's verified causes of death include type II diabetes mellitus and coronary artery disease, which are disorders associated with herbicide exposure for purposes of the herbicide presumption.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).  The central issue here is whether there is any probative evidence of in-service Agent Orange / herbicide exposure for the Veteran, in order to establish service connection for these verified causes of death.    

As discussed above, the appellant and the Veteran's son-in-law testified at the September 2016 hearing that during the Veteran's lifetime, he told his family members that he had TDY assignments in Vietnam, Korea, and Thailand.  The Veteran further told them that his MOS as a vehicle mechanic in the Air Force required him to repair vehicles that had broken down on the perimeters of air bases in Vietnam, Korea, and Thailand, where Agent Orange was sprayed to clear the vegetation.  In this way, the Veteran said he was exposed to Agent Orange or other herbicides during active duty.  See September 2005 DIC claim; November 2009, January 2010, October 2010 appellant statements; May 2011 NOD; January 2014 VA Form 9; September 2016 hearing testimony.   

The Veteran's SPRs, including his DD Form 214, do not show he served in the Republic of Vietnam during the Vietnam era, or near the Korean DMZ from 1968 to 1971.  In fact, neither the Veteran nor the appellant have alleged he served or visited the Korean DMZ.  Instead, a January 1970 SPR performance report confirms that he only served on TDY at Osan Air Base in Korea for 90 days beginning in June 1969.  He was responsible for the maintenance of various military vehicles at that base.  The Board takes judicial notice that Osan Air Base is south of Seoul, South Korea, and not in the proximity of the DMZ.  Judicial notice may be appropriate for facts that are "of universal notoriety that are not subject to reasonable dispute."  Monzingo v. Shinseki, 22 Vet. App. 97, 103 (2012); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991).  Therefore, the Veteran is not presumed to have been exposed to herbicides, including Agent Orange on the basis of any Vietnam or Korean DMZ service at this juncture.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), (iv); 3.313(a).  

However, the presumption of service connection for herbicide-related diseases could apply if exposure to herbicides is shown on a factual basis.  In essence, if the veteran did not serve in Vietnam during the Vietnam Era or at the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable.  Exposure to herbicides is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case.  Once exposure to herbicides has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable.  

The VBA Live Manual provides information detailing the steps the AOJ must take to verify herbicide exposure on a factual basis in Thailand and in other locations, excluding Vietnam or the Korean DMZ.  See VBA Live Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topics 5 and 7. 

First, as to the Veteran's service in Thailand, the AOJ must follow the appropriate steps listed in a specific M21-1 table.  See VBA Live Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5, Block b (change date November 12, 2015).  In the present case, SPRs confirm the Veteran served in the U.S. Air Force at Nakhon Phanom Air Base and Udorn Air Base in Thailand at various times from April 1965 to June 1966.  However, his MOS as a mechanic is not listed as one of the MOSs (such as a security patrolman) that explicitly place him near the base perimeters for purposes of conceding herbicide exposure on a direct / facts found basis based in the M21-1 table.  However, the M21-1 table also states that the AOJ should ask the veteran the approximate dates, location, and nature of the alleged herbicide exposure in Thailand.  Although the Veteran died in August 2005, the appellant provided this specific, relevant information at the September 2016 hearing.  The M21-1 table then directs the AOJ to send a request with this information to the Joint Services Records Research Center (JSRRC) for verification of alleged exposure to herbicides in Thailand.  Thus, upon remand, the AOJ should send a request to the JSRRC for verification of exposure to herbicides in Thailand.  


Second, as to the Veteran's service in Korea (not the DMZ), the AOJ must follow the appropriate steps listed in a specific M21-1 table.  See VBA Live Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 7, Block a (change date November 21, 2016).  This M21-1 table is utilized to verify potential herbicide exposure on a factual basis when the Veteran alleges exposure in locations other than the Vietnam, the Korean DMZ, or Thailand.  In the present case, the Veteran allegedly told his family that his MOS as a vehicle mechanic in the Air Force required him to repair vehicles that had broken down on the perimeters of the Osan Air Base in South Korea beginning in June 1969, where Agent Orange was allegedly sprayed to clear the vegetation.  A January 1970 SPR performance report confirms that the Veteran served on TDY at Osan Air Base in Korea for 90 days beginning in June 1969 (presumably until September 1969).  He was responsible for the maintenance of various military vehicles at that base.  The above M21-1 table directs the AOJ to initially send an E-mail inquiry with the dates, location, and circumstances of claimed herbicide exposure to Compensation Service at the Agent Orange Mailbox (VAVBAWAS/CO/211/AGENTORANGE) and request a review of DOD's inventory of herbicide operations to determine whether herbicides were used as claimed.  The M21-1 table then directs the AOJ to send a request with the above information to the JSRRC for verification of alleged exposure to herbicides in Korea (not the DMZ) at the Osan Air Base. Therefore, upon remand, the AOJ should follow these two steps in order to attempt to verify exposure to herbicides in Korea (not the DMZ).  

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.  The AOJ should send a request to the JSRRC for verification of exposure to herbicides in Thailand for the Veteran, to determine if the Veteran's allegations of herbicide exposure along the perimeters of air bases in Thailand are credible.  See VBA Live Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5, Block b (change date November 12, 2015).  

To effectuate this request, the AOJ should send the following summary to the JSRRC:

SPRs confirm the Veteran served in the U.S. Air Force at Nakhon Phanom Air Base and Udorn Air Base in Thailand at various times from April 1965 to June 1966.  During this time, the Veteran was assigned to the 35th Tactical Group, Don Muang Afd, and the 6235 AB Squadron, Don Muang Afd.  The SPRs also document that as a vehicle mechanic in Thailand, he performed duties in maintenance control and as a dispatcher.  He prepared correspondence for vehicle usage reports, trip tickets, and the scheduling of vehicles for maintenance and lubrication.  On several occasions, SPRs document that he was transferred on TDY duty to Udorn Air Base in Thailand for the purpose of "transferring" vehicles to that base.  

In a June 2010 Compensation and Pension report, it was noted that the DOD has determined that there was significant use of both tactical and commercial herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes.

In addition, the appellant and the Veteran's son-in-law testified at the September 2016 hearing that during the Veteran's lifetime, he told his family members that he had TDY assignments in Thailand.  The Veteran told them that his MOS as a vehicle mechanic in the Air Force required him to repair vehicles that had broken down on the perimeters of air bases in Thailand, where Agent Orange was sprayed to clear the vegetation.  In this way, the Veteran reported that he was exposed to Agent Orange or other herbicides during active duty.  

2.  The AOJ should attempt to verify herbicide exposure at Osan Air Base in Korea for the Veteran on a factual basis by following the appropriate steps listed in the VBA Live Manual, to determine if the Veteran's allegations of herbicide exposure along the perimeters of Osan Air Base in Korea (not the DMZ) are credible.  See VBA Live Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 7, Block a (change date November 21, 2016).

Specifically the AOJ should do the following:
	
(A) Send an E-mail inquiry with the dates, location, and circumstances of claimed herbicide exposure to the Compensation Service at the Agent Orange Mailbox (VAVBAWAS/CO/211/AGENTORANGE) and request a review of DOD's inventory of herbicide operations to determine whether herbicides were used as claimed in Korea (not the DMZ) along the perimeters of Osan Air Base;

(B) Then send a request to the JSRRC for verification of alleged exposure to herbicides for the Veteran in Korea (not the DMZ) at the Osan Air Base.  

To effectuate the above requests, the AOJ should send the following summary to the Compensation Service at the Agent Orange Mailbox and to the JSRRC:

The Veteran allegedly told his family that his MOS as a vehicle mechanic in the Air Force required him to repair vehicles that had broken down on the perimeters of the Osan Air Base in Korea (not the DMZ) beginning in June 1969, where Agent Orange was allegedly sprayed to clear the vegetation.  In this way, the Veteran reported that he was exposed to Agent Orange or other herbicides during active duty.  A January 1970 SPR performance report confirms that the Veteran served on TDY at Osan Air Base in Korea for 90 days beginning in June 1969 (presumably until September 1969).  He was responsible for the maintenance of various military vehicles at that base.  

3.  After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

4.  Thereafter, the AOJ should consider all of the evidence of record and readjudicate the cause of death issue on appeal.  If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the appellant and her representative an opportunity to respond.

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 cause of death 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs