Citation Nr: 1800803 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-09 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for skin cancer. 2. Entitlement to service connection for multi-myeloma cancer. 3. Entitlement to service connection for hypertension, to include as due to service connected disabilities. REPRESENTATION Veteran represented by: Collin A. Douglas, Esq. ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Air Force from July 1960 to April 1964 and served in the United States Air Force Reserve. The matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). While this appeal was pending, a January 2016 rating decision granted service connection for bilateral hearing loss and tinnitus. Thus, the Board no longer has jurisdiction over these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Board notes that this case was remanded previously in November 20, 2015. As part of the remand, the RO was to issue the Veteran a Statement of the Case (SOC) for entitlement to service connection for skin cancer and multi-myeloma cancer. This was accomplished in September 2016, and the Veteran perfected his appeal with the submission of a timely filed VA Form 9 in August 2016. As for the matter of representation, the record reflects that, the Veteran filed an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) appointing the Disabled Veterans of America as his power of attorney (POA) in May 2015. In October 2016, the Veteran provided another POA and filed a new VA Form 21-22, appointing Collin A. Douglas, Esq., as his representative. The Board notes that a POA may be revoked at any time, and unless specifically noted otherwise, receipt of a new POA constitutes a revocation of an existing POA. 38 C.F.R. § 14.631 (f)(1) (2017). As such, the Board recognizes this change in representation. The appeal is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Although further delay is regrettable, the Board finds that all three claims on appeal must be remanded for additional development. Initially, the Board finds that the AOJ has not substantially complied with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2015, the Board directed the RO to issue notice to the Veteran that is compliant with the VCAA. Specifically, the Board instructed the RO to notify the Veteran of: the information and evidence necessary to substantiate his claims; the information and evidence that VA would seek to provide; information and evidence that the Veteran is expected to provide; and the process by which initial disability ratings and effective dates are assigned. Upon review of the record, however, it does not appear that the RO has accomplished this. Therefore, upon remand, the RO must provide the proper notice to the Veteran as directed in this Board decision's remand directive below. Next, the Board finds that further development must be performed by the RO as to the Veteran's claims of exposure to ALUMIPREP or Methyl Ethyl Ketone (MEK) and Agent Orange, which the Veteran asserts caused him to develop skin cancer, multi-myeloma cancer, and secondarily, hypertension. With respect to his claim of exposure to ALUMIPREP or MEK, in various statements, the Veteran asserts that while he was stationed at Naha Air Force Base in Okinawa, Japan, he, along with others in his unit, cleaned C-130 aircrafts that were used in Vietnam, during the Vietnam War. See January 2012 Veteran's statement; September 2014 Veteran's statement. He asserts that he washed off chemical and salt water off the aircraft using ALUMIPREP or Methyl Ethyl Ketone (MEK), a liquid solvent, without having been provided or using any protective gear. He asserts that the required use of this solvent, without any protective gear, and for almost 17 months, has caused him to develop skin cancer, multi-myeloma cancer, and secondarily, hypertension. See August 2016 Veteran's Statement. In support of his claim, he also submitted information regarding the hazards of MEK that include in relation to skin. See Information received by VA on January 30, 2012 and Information received by VA on June 29, 2012. He further submitted the names of his supervisors at the base. See January 2014 Veteran's statement. In his January 2012 statement, the Veteran reported that his VA doctor, Dr. A. H., would be providing "proof" regarding this aspect of his claim. Further, in a January 2014 statement, the Veteran reported that he was also treated for his conditions at Mountain Home. However, the Board finds that these VA records, specifically to include records from Dr. A.H., and records from Mountain Home, have not yet been obtained and associated with the record. Therefore, upon remand, these records must be obtained. With respect to his claim of exposure to Agent Orange, the Veteran asserts that while he was stationed at the Naha Air Force Base in Okinawa, Japan, he witnessed barrels of Agent Orange come into Naha Port, which he says "was only 2-3 miles" from the Naha Air Force Base, and asserts that he believes he personally witnessed Agent Orange being sprayed in his vicinity, which was in the back of the base, next to the flight line where vegetation was absent, where the main road came through. See September 2014 Veteran's Statement. He further submitted the name of a fellow serviceman who was with him travelling the back roads in the woods. See December 2014 Veteran's Statement. While the Board notes that a January 2016 formal finding was entered by the RO as to the lack of information required to corroborate exposure to Agent Orange, the Board finds the RO's attempts to corroborate as documented in this formal finding are insufficient. The formal finding does not sufficiently state what attempts have been done. Specifically, it does not demonstrate that any attempts were made to verify the Veteran's assertions regarding his claimed exposures at the Naha Port and/or Naha Air Force Base, in Okinawa, Japan. In fact, a September 2015 Deferred Rating decision from VA shows that development was being done as to whether the Veteran was exposed to herbicides at the Air Force Base in Elgin, which is where the Veteran was also once stationed; however, there is no indication in this Deferred Rating decision either that any development was being done as to whether any exposure could have taken place at the Naha Port and/or Naha Air Force Base, in Okinawa, Japan - the actual base where the Veteran has been asserting he was exposed. Accordingly, the case is REMANDED for the following action: 1. The RO must issue notice to the Veteran that is compliant with the VCAA. Specifically, the Veteran should be notified of: the information and evidence necessary to substantiate his claims; the information and evidence that VA would seek to provide; information and evidence that the Veteran is expected to provide; and the process by which initial disability ratings and effective dates are assigned. 2. Obtain all outstanding VA records, including VA records from Dr. A.H. and records from Mountain Home. 3. Take all appropriate steps to verify the Veteran's claim that he was exposed to herbicides at the Naha Port and/or Naha Air Force Base, in Okinawa, Japan. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period 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 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 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs