Citation Nr: 1804407 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-27 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for ischemic heart disease (IHD) as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. C. King, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to May 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision from the VA Regional Office (RO) in Waco, Texas that denied the claim of entitlement to service connection for IHD. A Board hearing was requested and scheduled, but in November 2015, the Veteran withdrew his hearing request. As such, the Board will proceed with the Veteran's claim at this time. In an April 2016 decision, the Board denied the claim. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2016 joint motion for remand (JMR), the parties (the Veteran and the Secretary of VA) requested that the Board decision be vacated and the issue remanded. In a December 2016 Court order, the joint motion was granted, the Board's April 2016 decision was vacated, and the issue was remanded. The case was returned to the Board, which, by May 2017 order, remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. The case was subsequently returned to the Board. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board's prior May 2017 remand order directed the AOJ to (1) contact the Veteran and ask him to describe his duties at Udorn RTAFB (Korat Royal Thai Air Force Base), Thailand in 1968, and his duties at U-Tapao, Thailand in 1971, and to state whether his work duties took place near the perimeter of these air bases; and (2) attempt to verify the Veteran's claimed in-service herbicide exposure in Thailand and the Republic of Vietnam, to include consideration of the Veteran's statements, in accordance with VA Manual provisions. With regards to the first directive, it appears that the Veteran was contacted via mail by the AOJ in May 2017, and information regarding his Thailand duties was requested. To date, the Veteran did not respond. With regards to the second directive, the record shows that the AOJ sent a records request to "furnish any documents showing exposure to herbicides," which was responded to in September 2017 with "no records of exposure to herbicides." Additional service records were uploaded into VBMS, and the AOJ determined that they did not provide any information placing the Veteran near the perimeter. Per the VA Manual, even if the Veteran does not furnish requested information within 30 days, the case is then to be referred to the Joint Services Records Research Center (JSRRC) coordinator to determine whether there is sufficient information to verify herbicide exposure, prior to the decision being made on the evidence of record. See M21-1, IV.ii.1.H.5.b.4,7. As there has been neither a referral to nor a determination from the JSRRC with regards to Veteran's exposure in Thailand, the process set forth in the VA Manual has not been followed. Accordingly, the matter must be remanded again for compliance with the prior remand directive, in accordance with Stegall v. West, 11 Vet. App. 268 (1998). It is noted that the Veteran served as a pilot for over six months at Udorn RTAFB, and that he flew 91 combat missions from Udorn. In keeping with the JMR, the AOJ is requested to make a finding on whether the Veteran's duties as a pilot and those other duties of "mission planning, computing timing, operating radar/radio/navigational equipment, monitoring electric warning equipment, and maintaining visual watch and radar search for the enemy" put him near the base perimeter. The AOJ is also requested to ensure that the Department of Defense's "Project Checo Southeast Asia Report," is considered in addressing the question of whether the Veteran's duties, on the flight line or otherwise, placed him at the perimeter where herbicide agents were used. The report notes, "[T]he perimeter [of Udorn RTAFB] was also very close to the aircraft at several points." https://www.disabledveterans.org/wp-content/uploads/2013/12/Project-CHECO-Report.pdf. Finally, while the steps taken to contact the Veteran and request information about his service in Thailand are sufficient, the Veteran's account would be an efficient way to shed some light on this claim. In this spirit, it is noted that neither (a) another inquiry by the Agency of Original Jurisdiction (AOJ), nor (b) response by the Veteran to the May 2017 correspondence is barred. Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the Veteran's claimed in-service herbicide exposure in Thailand, to include consideration of the Veteran's statements, in accordance with VA Manual provisions. All requests and responses received should be associated with the claims file. If such verification is not possible, it should be so documented for the record. **Please note: referral to the JSRRC for a determination is required following any further development steps taken in this case, unless exposure is otherwise established, as per the steps set forth in the VA Manual.** 2. After undertaking the development above, the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board. 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 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). _________________________________________________ B. MULLINS 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).