Citation Nr: 1757077 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-11 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for old myocardial infarction and coronary artery disease (a heart disability) as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1962 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In May 2017, the Veteran testified in a Videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's appeal of service connection for a heart disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159(c), (d) (2017). In this case, the Veteran does not contend that the heart disability began or had onset in service. Instead, the Veteran has repeatedly and consistently contended that the heart disability is a result of exposure to herbicides, particularly, Agent Orange, during service in Guam and Vietnam. Specifically, the Veteran contends that herbicides were sprayed during service on Anderson Air Force Base in Guam. Personnel records indicate that the Veteran was stationed on Anderson Air Force Base in Guam from May 1963 to November 1964. The Veteran also contends that he was sent on a classified mission to Vietnam to set up new communications for approximately six weeks from early August to late September of 1964. Here, some development has been undertaken to assist in verifying the Veteran's alleged exposure to herbicides. In July 2012, the Defense Personnel Records Information Retrieval System (DPRIS) indicated that, after extensive research, DPRIS was unable to located historical reports submitted by the 1958th Communication Squadron or its higher headquarters covering May 1963 through September 1964. However, DPRIS also advised that the United States Air Force Historical Research Agency (AFHRA) may have supporting documents (unit histories) in their custody concerning the alleged incident (TDY in Vietnam). In a March 2014 email correspondence, an archivist at the AFHRA responded to the RO's request and stated: The 1958th Communications Squadron did not submit any unit histories to us. I therefore went to the Pacific Communications Area official unit history and found that the 1958th was only mentioned once, in regards to cutting some manpower slots. I also went to the1964th Communications Group histories hoping that they would mention any TDY assists (since they were in Vietnam) but again, no mention of any 1958th personnel going TDY to Vietnam. I regret that our collection of official unit histories do not mention any 1958th Communication Squadron personnel going TDY to Vietnam in the August/September 1964 time period. In this regard, VA Adjudication Procedure[s] Manual [herein M21-1] has specific procedures for developing claims based on herbicide agent exposure in locations other than Vietnam, Korea or Thailand. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.7.a. One step in the procedure is to contact the Compensation Service in order to "request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed." The M21-1 procedures for developing claims based on herbicide agent exposure in locations other than Vietnam, Korea or Thailand include, following the referenced request to VA Compensation Service, that if the Veteran provided sufficient information to permit a search by the Joint Services Records Research Center (JSRRC), a request for verification of herbicide agent exposure should be sent to the JSRRC. The United States Court of Appeals for Veterans Claims (Court) issued a decision that addressed VA's duty to assist within the context of when a request to the JSRRC is necessary. See Gagne v. McDonald, 27 Vet. App. 397 (2015). In Gagne, the Court stated that: The language of the duty-to-assist statute clearly states that when the veteran provides information sufficient to locate service records that are in the possession of a government agency and that might help the veteran's claim, VA "shall continue" to search for such records "unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(c)(2). The implementing regulation supports the conclusion that to fulfill his duty to assist 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. 38 C.F.R. § 3.159(c)(2). The Court in Gagne found that multiple JSRRC requests were required as a result of information of record relating to an alleged stressor that occurred sometime during the Veteran's 13-month period of deployed service. The Board finds the facts in this case to be analogous to those in Gagne and that a remand is required for appropriate VA Compensation Service and JSRRC requests in order to fulfill VA's duty to assist, and to comply with the applicable provisions of the M21-1. Specifically, the Veteran and/or evidence of record provided information regarding the approximate date (May 1963 to November 1964) and location (Andersen Air Force Base, Guam) of the claimed herbicide exposure. The Board notes that the M21-1 provision relating to JSRRC requests indicate that a JSRRC request must reference the unit designation, specific date of incident, precise location, and circumstances surrounding exposure. See M21-1, Part III, Subpart iii, Chapter 2, Section I.2.i. It appears that this information has been substantially provided by the Veteran or is otherwise of record and as such, "information sufficient to locate...relevant records pertaining to [the Veteran's active service] that are held or maintained by a governmental entity" has been provided. See 38 U.S.C. § 5103A(c)(1)(A) (2012). As such, a remand is required for the appropriate requests to VA Compensation Service and the JSRRC for verification of the Veteran's claimed herbicide agent exposure in Guam. In addition, as mentioned above, the Veteran has also contended that he was sent to Vietnam on a classified mission to set up new communications for approximately six weeks from early August to late September of 1964. While some development has been undertaken in this regard (see July 2012 and March 2014 responses from DPRIS and AFHRA, respectively), a request for information concerning alleged involvement in covert (classified) operations should be directed to the United States Special Operations Command. See M21-1, IV.ii.1.I.5 (Developing Claims Based on Participation in Special Operations Incidents). The most recent VA treatment records from the Muskogee VA Medical Center (VAMC) are from February 2013. Accordingly, these records should also be obtained upon remand. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Associate with the electronic record all VA clinical documentation from the VA Medical Center pertaining to the treatment of the Veteran's heart disability not already of record, particularly from February 2013, forward, at the Muskogee VAMC. 2. Submit the Veteran's case to VA's Compensation Service to assist in determining if herbicides were used as claimed in Guam on Andersen Air Force Base. If VA Compensation Service is not able to confirm that herbicides were used as contended, make appropriate requests to the JSRRC for verification of the Veteran's reported herbicide agent exposure (Agent Orange, as discussed further in the body of the Remand above) in accordance with the M21-1. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.7.a. The AOJ is informed that this includes, if necessary, submitting multiple requests to the JSRRC. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA failed in fulfilling its duty to assist when VA did not submit multiple request to the JSRRC). 3. Complete and submit a Special Operations Forces Incident document to the United States Special Operations Command (USSOCOM) for verification of the Veteran's TDY on a classified mission in Vietnam from early August to late September of 1964. See M21-1, Part IV.ii.1.I.5.b. Associate all responses with the electronic claims file. 4. After completion of the above and any additional development deemed necessary, readjudicate the issue of service connection for a heart disability. If the determination remains adverse to the Veteran, he and the 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 Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2014). _________________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).