Citation Nr: 1803388 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-14 052 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: W. Evan Anderson, Attorney ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran had active duty service from June 1963 to January 1966. He died in May 2012. The appellant is recognized as his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2013 decision that denied the appellant's "claim for VA benefits." In March 2013, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2014 addressing the issue of "[e]stablishing you as a dependent for VA purposes." The RO informed the appellant that "[u]ntil such time as you can be established as the Veteran's surviving spouse, any eligibility for VA death benefits will not be decided." In a November 2015 decision, the Board construed the April 2014 SOC as an initial adjudication oleyl addressing the issue of whether the appellant may be recognized as the Veteran's surviving spouse for VA purposes. The Board noted that as the SOC expressly stated that the issue of "any eligibility for VA death benefits" was not being decided, it could not reasonably be construed as a SOC addressing the issue of service connection for the cause of the Veteran's death. The appellant filed a VA Form 9, Appeal to the Board of Veterans' Appeals in April 2014 that the Board construed as a NOD with the determination that she may not be recognized as the Veteran's surviving spouse for VA purposes. In November 2015, the Board remanded the issues of whether the appellant may be recognized as the Veteran's surviving spouse for VA purposes and service connection for cause of death to the agency of original jurisdiction (AOJ) to issue an SOC which addressed those issues. In a March 2016 administrative decision, the RO determined that the appellant is recognized as the surviving spouse for VA purposes. A supplemental statement of the case (SSOC) on the issue of service connection for cause of death was issued in May 2016, and the appellant, through her attorney, filed a substantive appeal (via a statement accepted in lieu of a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2016. While there was previously a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the appellant when further action, on her part, is required. As a final preliminary matter, the Board notes that issue of entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 has been raised in the August 2012 VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child, but has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over such matter, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). REMAND The Board's review of the claims file reveals that additional AOJ action in this appeal, prior to appellate consideration, is warranted. The appellant contends that in light of the recently disclosed Project CHECO, she believes that the Veteran was exposed to herbicides during his service in Thailand and he died from a disease that is presumed to be due to exposure to such herbicides. See April 2014 VA Form 9. The Veteran's death certificate reflects that the immediate cause of death was arrhythmia and complications leading to death was acute myocardial infarction. The Board notes that there are certain chronic diseases, such as ischemic heart disease, to include acute, subacute, and old myocardial infarction, that the VA Secretary has recognized are etiologically associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a) (2012); 38 C.F.R. § 3.309(e) (2017). (In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i) (20177).) Furthermore, VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. See Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010). Thus, VA has determined that exposure to herbicides will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases during the Vietnam era (February 28, 1961, to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. See VA Adjudication Procedures Manual "Live Manual" (M21-1) part IV, subpt. ii, ch. 1, sec. H.5.a; VBA C&P Service Bulletin (May 2010). VA based this determination of evidence contained in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." The Board notes that the M21-1 sets forth procedures to verify exposure to herbicides based on service in Thailand during the Vietnam era. If herbicide exposure cannot be conceded on a direct/fact-founds basis, the AOJ is to ask the appellant for specific information concerning the dates, location, and nature of the alleged herbicide exposure. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. If the appellant provides that information, the AOJ is to review the information and make a determination as to whether exposure to herbicides can be acknowledged on a direct/fact-founds basis. Id. If yes, the AOJ should proceed with any other necessary development and then refer the claim to the rating activity. Id. If no, the AOJ is to either (1) send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides or (2) refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Id. In this case, the AOJ sent a letter to the appellant in February 2016 informing her that if the Veteran did not serve in Vietnam, the AOJ needs to know when, where, and how the Veteran was exposed to herbicides. The appellant did not respond to this letter. In a March 2013 VA Form 21-6789, Deferred Rating Decision Form, the decision review officer (DRO) noted that Agent Orange exposure was not shown in the reviewed service treatment records or the official military personnel file. It was noted that the appellant did not give a two-month time frame for the Veteran's Agent Orange exposure in reply to the February 2016 development letter and requested the AOJ to move forward with a formal finding of unavailability memorandum for Agent Orange exposure. In the instant case, the AOJ did not follow the procedures set forth in the M21-1 to verify whether the Veteran was exposed to herbicides based on his service in Thailand. Specifically, the claims file does not contain a formal finding of unavailability memorandum for herbicide exposure in the electronic claims file (in either Virtual VA (Legacy Content Manager) or VBMS). There is no indication that the AOJ either sought verification of the Veteran's alleged exposure with the JSRRC or referred the matter to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, as required by the M21-1. Furthermore, in Gagne v. McDonald, 27 Vet. App. 397 (2015), the United States Court of Appeals for Veterans Claims (Court) held that VA's duty to assist is not bound by the JSRRC's 60-day limitation to obtain records. The Court found that VA was obligated under its duty to assist to submit multiple 60-day requests to the JSRRC for records of an event. Id. at 404. The Court determined that the fact that multiple record searches would burden JSRRC employees does not mean that those efforts would be "futile." However, in Gobber v. Derwinski, the Court did not state that the duty to assist requires unlimited searches. 2 Vet. App. 470, 472 (1992) ("The 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim). In Gagne, the Veteran's relevant service period for his claimed in-service stressor covered a 13-month period. The Court found that a records search over a 13-month period was not "unreasonably long, given the particulars of the stressor provided by the appellant." Gagne, 27 Vet. App. at 404. Here, the Veteran's service personnel records reflect that he was stationed with Co. C, 809th Engineering Battalion in Thailand from February 1964 to February 1965. His military occupational specialty at that time was construction machine operator. In this case, the Board does not find it akin to a "fishing expedition" or that it is futile to search the service records of Co. C, 809th Engineering Battalion from February 1964 to February 1965 (in 60-day increments, if necessary) in an effort to find supporting evidence that the Veteran was likely exposed to herbicide agents while serving in Thailand as a construction machine operator. Accordingly, the Board finds that the claim for service connection for cause of death must be remanded to the AOJ for completion of the development required by the M21-1 in cases such as this one. As the appellant asserts that the Veteran was exposed to herbicides in Thailand and the service personnel records reflect that the Veteran served in Thailand from February 1964 to February 1965, the Board finds that on remand, the AOJ should contact the JSRRC in an effort to independently verify the Veteran's exposure to herbicides in Thailand to include submitting multiple 60-day requests to the JSRRC for records to cover the period of time the Veteran was in Thailand from February 1964 to February 1965. Also while this matter is on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. In this regard, the AOJ should give the appellant another opportunity to provide information and/or evidence pertinent to the claim on appeal (particularly as regards any private (non-VA) treatment), explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C.A. § 5103(b)(3) (2017) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the appellant and her attorney a letter requesting that the appellant provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After records and/or responses received have been associated with the record, send a request to the JSRRC to attempt to o verify the Veteran's exposure to herbicides consistent with his service in Thailand with the Co. C, 809th Engineering Battalion as a construction machine operator from February 1964 to February 1965. If necessary, please submit the request in 60-day increments to cover the entire period of time the Veteran was in Thailand from February 1964 to February 1965. The JSRRC should be provided with any necessary documentation, to include any relevant service records, as well as any evidence and/or lay statements submitted by the appellant, and statements detailing any duties and/or living situations that required the Veteran to be at or near any base perimeters. . Also, follow up on any requested actions(s). The JSRRC's response(s) should be included in the record . 4. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all that added to the VBMS and Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the appellant and her attorney a supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this remand is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This remand must be afforded expeditious treatment. The law requires that all claims 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 (2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).