Citation Nr: 1802692 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-21 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318. 3. Entitlement to service-connected burial benefits. 4. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1954 to June 1958, and from August 1958 to July 1975. He died in January 2009. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 adjudications of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In February 2011, the appellant testified at a video conference hearing conducted by the undersigned Acting Veterans Law Judge. A transcript of that hearing has been associated with the Veteran's claims folders. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In January 2012, the Board remanded the appeals for development. By way of history, the appellant has proffered separate theories of entitlement to service connection for the cause of the Veteran's death. First, in the February 2011 Board hearing, she alleged that the Veteran's fatal cardiovascular condition, refractory carcinogenic shock due to the ischemic cardiomyopathy which was due to the end stage coronary artery disease, had onset during the Veteran's second period of active military service. Second, she has maintained that the Veteran's fatal cardiovascular disorder was the result of him having been exposed to Agent Orange while on active duty in Thailand during his second period of active military service. The development undertaken on remand was ordered in order to properly address the first two contentions. In this regard, the Board is satisfied with the development undertaken to address the appellant's contention that a heart disorder had onset during service. A VA medical opinion was obtained in September 2016, in compliance with the directives contained in the January 2012 Board remand. Regarding the appellant's contention that the Veteran was exposed to herbicides during his military service and that service connection for coronary artery disease was warranted at the time of his death, development was also requested on remand. Specifically, the AOJ was directed to contact the appropriate custodian of service department records and seek to obtain and associate with the Veteran's claims folders all service personnel records pertaining to the Veteran's periods of military service, to determine whether the Veteran served in Vietnam during his period of active duty. The AOJ was then to follow the regular procedures for developing evidence of herbicide exposure for Veteran's with service in Thailand during the Vietnam era. In the January 2012 remand, the Board noted that of record is a computerized personnel record on file, entitled "Base Level Military Personnel System." This record, shown to have been prepared on June 12, 1975, shows for the Veteran a tour length in Vietnam from September 30, 1969, to October 1, 1970. In November 2015, the RO requested the Veteran's complete service treatment records and personnel file from the NPRC. One week later, the requested records were received. One letter was submitted to the Veteran's daughter requesting information pertaining to the circumstances of the Veteran's purported exposure to Agent Orange during service. In an August 2016 memorandum, the Joint Services Records Research Center (JSRRC) Coordinator for the RO noted that the Veteran's personnel records showed that he was stationed at Ubon Airfield, Thailand, from August 1973 to February 1975, and was assigned to the 8th Tactical Fighter Wing. His duties were Assistant NCOIC, Training Management. The memorandum also referred to an April 2010 statement from APC, who had indicated his belief that the Veteran was exposed to Agent Orange while cleaning aircraft. Because no timeframe was provided that was sufficient to refer the claim to the JSRRC, and because the personnel records did not mention that the Veteran served along the perimeter of Ubon Airfield as part of his service, a formal finding was made that there was insufficient information required to corroborated the alleged exposure to herbicide agents. Efforts were undertaken specifically to ascertain whether exposure to herbicides could be determined during the Veteran's service in Thailand at Ubon Airfield from August 1973 to February 1975. In addition, the November 2015 response to the RO's request to the NPRC indicated that there was no evidence of record to substantiate service in the Republic of Vietnam. However, no development was specifically undertaken regarding the computerized personnel record on file, entitled "Base Level Military Personnel System." As noted above, as well as in the January 2012 remand, this record shows a tour length in Vietnam from September 30, 1969, to October 1, 1970. The Veteran's name is clearly present on the document. During the February 2011 Board hearing, the appellant's representative suggested that this document could refer to transportation through Vietnam. As a finding of in-country Vietnam service would be dispositive for the claims on appeal, the Board notes that it is imperative that all efforts to develop this issue must be exhausted. The August 2016 RO memorandum referred primarily to the Veteran's service in Thailand. The Board finds that remand is yet again warranted in order to send an inquiry to the JSRRC in order to ascertain whether the Veteran had service in the Republic of Vietnam from September 1969 to October 1970. The remaining claims are inextricably intertwined with the claim of entitlement to service connection for the cause of the Veteran's death. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is REMANDED for the following action: 1. Send an appropriate request to the JSRRC to verify the Veteran's claimed service and exposure to Agent Orange, specifically addressing a personnel record titled, "Base Level Military Personnel System" denoting a tour length in the Republic of Vietnam from September 30, 1969, to October 1, 1970. 2. To help avoid future remand, the RO/AMC must ensure that the required actions have been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the required actions, and after conducting any additional development necessary based on the information obtained, the RO/AMC should readjudicate the Veteran's claims as listed on the title page of this decision. If any benefit sought on appeal remains denied, the appellant and her representative should be issued a supplemental statement of the case (SSOC) and given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ Carole R. Kammel Acting 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) (2017).