Citation Nr: 1718983 Decision Date: 05/30/17 Archive Date: 06/06/17 DOCKET NO. 13-28 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for coronary artery disease, including as due to in-service exposure to an herbicide agent. 2. Entitlement to service connection for prostate cancer, including as due to in-service exposure to an herbicide agent. 3. Entitlement to service connection for erectile dysfunction, including as due to in-service exposure to an herbicide agent. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from December 1996 to December 1970, including in Thailand. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's claim of service connection for coronary artery disease (which was characterized as atherosclerotic heart disease (claimed as ischemic heart disease)), including as due to in-service exposure to an herbicide agent. The Veteran disagreed with this decision in March 2012. He perfected a timely appeal in September 2013. This matter also is on appeal from a February 2012 rating decision in which the RO denied the Veteran's claims of service connection for prostate cancer and for erectile dysfunction, each including as due to in-service exposure to an herbicide agent. The Veteran disagreed with this decision in March 2012. He perfected a timely appeal in September 2013. A Travel Board hearing was held at the RO in June 2015 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In August 2015, the Board denied the Veteran's claims. The Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's August 2015 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). In October 2016, the Court granted the Joint Motion vacating and remanding the Board's August 2015 decision. In October 2016, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ attempt to obtain updated treatment records for the Veteran, attempt to corroborate his assertion of in-service exposure to an herbicide agent while serving at U-Tapao Airfield in Thailand, and schedule him for appropriate examinations to determine the nature and etiology of his claimed disabilities. The AOJ documented its efforts to attempt to obtain the identified records and to attempt corroboration of the Veteran's assertions regarding his in-service exposure to an herbicide agent. The requested examinations occurred in January 2017. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Unfortunately, as is explained below, the appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he incurred coronary artery disease, prostate cancer, and erectile dysfunction during active service. He specifically contends that in-service herbicide exposure while he worked at U-Tapao Airfield, Thailand, from December 1967 to August 1968 caused or contributed to each of these claimed disabilities. He alternatively contends that he was exposed to an herbicide agent during active service in brief visits to the Republic of Vietnam as part of his in-service duties while he worked at U-Tapao Airfield, Thailand, from December 1967 to August 1968. The Board acknowledges that this appeal was remanded most recently in October 2016. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Board notes that, in its October 2016 remand, it directed that the AOJ attempt to corroborate the Veteran's assertions of in-service exposure to an herbicide agent. A review of the claims file shows that the Veteran served at U-Tapao Airfield, Thailand, from December 1967 to August 1968. The Joint Services Records Research Center (JSRRC) notified the AOJ in October 2012 that there was no record of herbicide agent use between July and September 1968 at U-Tapao Airfield, Thailand. In response to the Board's October 2016 remand, the AOJ contacted the JSRRC in December 2016 and requested corroboration of the Veteran's assertion of in-service herbicide exposure when aircraft he was on stopped briefly in Vietnam while he was in transit to and from U-Tapao Airfield, Thailand, between April and June 1968. The JSRRC responded in January 2017 that a review of the historical records of the Veteran's active service unit while assigned to U-Tapao Airfield, Thailand, did not indicate that the Veteran or any other personnel from his unit stopped in Vietnam while en route to U-Tapao Airfield between April and June 1968. The Board commends the AOJ for its efforts to comply with the October 2016 remand directives. The Board also acknowledges the difficulty faced by the AOJ in making repeated requests to the JSRRC for corroboration of a Veteran's claimed in-service exposure to an herbicide agent. Nevertheless, in Gagne v. McDonald, 27 Vet. App. 397 (2015), the Court held that VA's duty to assist under the VCAA "requires that VA 'continue' to try to obtain records in the possession of a government agency until such a search becomes futile." 38 U.S.C. § 5103A(c)(2). Under 38 C.F.R. § 3.159(c)(2) "the Secretary must make as many research record requests as are necessary and that a search for records is 'futile' only when it becomes clear the record does not exist or is not in the possession of the custodian." Accordingly, following Gagne, VA is obligated to submit multiple requests to the JSRRC covering the relevant time window (in this case, from December 1967 to August 1968) in 60-day increments. The Court noted in Gagne that VA's duty to assist is not bound by the JSRRC's 60-day requirement and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. The only limitation to this duty provided by the Court in Gagne, other when searches are "futile," is that the duty to assist does not require unlimited searches, or "'fishing expeditions' over an indefinite period of time." The Court concluded in Gagne that it is not unreasonable to require the AOJ to submit multiple 60-day inquiries to the JSRRC sufficient to address the entire period of time when a Veteran alleges that he or she was exposed to an in-service herbicide agent (in this case, while the Veteran was assigned to U-Tapao Airfield, Thailand, between December 1967 and August 1968). Because it is bound by the Court's decision in Gagne, the Board reluctantly concludes that another remand is required. Accordingly, the case is REMANDED for the following action: 1. Contact the Joint Services Records Research Center (JSRRC) and request that the JSRRC verify whether the Veteran was exposed to an herbicide agent at any time from December 1967 to August 1968 while he was assigned to U-Tapao Royal Thai Naval Airfield, Thailand, to include whether he was exposed to an herbicide agent when landing in the Republic of Vietnam on his way to and from U-Tapao Royal Thai Naval Airfield, Thailand, between December 1967 and August 1968. Separate responses must be provided for each 60-day period between December 1967 and August 1968. A copy of the request(s) to the JSRRC and the responses for each 60-day period between December 1967 and August 1968 should be included in the claims file. 2. Review the responses obtained from the JSRRC to ensure that they cover the entire time period (in 60-day increments) while the Veteran was assigned to U-Tapao Royal Thai Naval Airfield, Thailand, between December 1967 and August 1968. If they do not cover this entire time period, then please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the AOJ should issue a supplemental statement of the case to the Veteran which contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ L. M. BARNARD 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).