Citation Nr: 1800654 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-22 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for chronic renal failure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board observes that following a January 2016 rating decision, which denied entitlement to service connection for diabetes mellitus, the Veteran has provided several statements and evidence to further support his claim. However, the Veteran has not initiated a claim to reopen this previously denied claim on a proper prescribed VA form. The RO should notify the Veteran of the proper form required to initiate a claim for this disability, if he desires to do so. See 38 C.F.R. §§ 3.150, 3.155 (a). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). REMAND The Board is of the opinion that additional development is required before the claim on appeal is decided. A review of the history of this case is warranted at the outset. By way of a July 1975 rating decision the RO granted service connection for hematuria. Then, in February 2009 the Veteran initiated a claim for service connection for end stage renal disease (ESRD), asserting the condition was secondary to his hematuria. In essence he initially alleged the ESRD was a progression of the hematuria. The claim was denied in a September 2009 rating decision, and this appeal followed. During this appeal period, the Veteran has claimed entitlement to service connection for diabetes mellitus, which was diagnosed in 1997. However, the claim for diabetes was initially denied by way of a provisional rating decision in August 2013. Thereafter, in January 2016 the RO issued a rating decision again denying service connection for diabetes, which was a decision finalizing the provisional decision. In that decision the RO found Agent Orange exposure could not be conceded. The Veteran did not appeal that decision; however, he has submitted additional statements and evidence since that time to support his Agent Orange exposure. During his October 2017 hearing, the Veteran asserted that his ESRD is a result of his Agent Orange exposure in service. VA's Compensation and Pension (C&P) Service has determined that special consideration of herbicide exposure on a factual or facts-found basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand bases when a veteran with service in Thailand during the Vietnam Era claims service connection for disability based on herbicide exposure. VA has determined that there was significant use of herbicides on the fenced-in perimeters of bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Such claimants must have served with the U.S. Air Force or Army in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang during the period from February 28, 1961, to May 7, 1975. Additionally, such claimants must have performed duties as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise have served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The Veteran served in the U.S. Air Force. He was stationed in Thailand during the Vietnam Era, and has asserted that his duties as a fireman placed him along the base perimeter on numerous occasions. The RO has conducted Joint Service Records Research Center development to corroborate a sapper attack that occurred while the Veteran was stationed in Thailand. The attack was corroborated. The corroboration memo confirms that during the attack explosions occurred, and the Veteran states that he put out the fires on the base perimeter caused by those explosions. The Veteran has also obtained buddy statements from two of his superiors, which show that at various times he performed duties on the base perimeter to extinguish fires that were caused by plane crashes, errantly fired flares, and by farmers just outside the base perimeter. In sum, the evidence of record demonstrates the Veteran served at Udorn RTAFB, within close proximity to the base perimeter where herbicides were sprayed. Therefore, his exposure to herbicides in service is conceded. The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran's outpatient treatment records confirm he has experienced ESRD during the course of the appeal period. Fortunately, in October 2013 the Veteran underwent a successful kidney transplant. As noted above, the Veteran has asserted his disability may be the result of his above-conceded exposure to Agent Orange in service. Based on the foregoing, the Board finds a VA examination and medical opinion is necessary to determine whether the Veteran's currently diagnosed disability originated in service. On remand, relevant ongoing medical records should also be obtained. 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. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issues on appeal, to include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the Veteran should be afforded an examination by a VA physician with sufficient expertise to determine the etiology of the Veteran's renal disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on a review of the Veteran's pertinent history and the examination results, the examiner should state an opinion with respect each renal disability diagnosed during the pendency of this claim, to specifically include end stage renal disease and status post renal transplant. Specifically, the examiner should state whether the Veteran's renal disability, at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to include as a result of his conceded Agent Orange exposure. In this regard, the examiner must discuss and consider the Veteran's competent and credible lay statements. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Finally, undertake any other indicated development, and then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).