Citation Nr: 18150786 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-62 758 DATE: November 15, 2018 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1971 to September 1991. Unfortunately, he died in August 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Appeals (VA) Regional Office. A remand is required in this case to ensure that there is a complete record upon which to decide the appellant’s claim. The Veteran’s death certificate indicates that the immediate cause of his death was malignant neoplasm of the bronchia and lung. At the time of the Veteran’s death, he had not been awarded service connection for any disability. The appellant claims that the Veteran was exposed to herbicide agents during service in Thailand. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, herbicide exposure should be conceded on a facts-found or direct basis. Moreover, the Board notes that, effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (“Agent Orange”) during the Vietnam era. In this case, the Veteran was diagnosed with lung cancer. See August 2015 private treatment record. VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain diseases, including lung cancer, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The Veteran’s DD Form 214 also shows that the Veteran served in the Air Force and was an aircraft systems technician; as such, it is possible that the Veteran may have had regular and repeated contact with C-123 aircraft. The Veteran’s military personnel records reflect that he served on U-Tapao Royal Thai Air Force Base (RTAFB). In addition, a May 1972 service treatment record indicates that he was treated at the “27th tac[tical] hosp[ital] takhli,” thereby indicating that the Veteran spent time at the Takhli RTAFB. However, the Veteran’s military personnel records do not reflect that he served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence; or as in an United States Army base as a member of a military police unity or with a military police occupational specialty. However, the record does not reflect that a request was sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicide agents. In addition, it does not appear that the Veteran’s complete military personnel records are in the claims folder, as the records do not indicate the exact dates of the Veteran’s service in Thailand. Based on the incomplete information of record regarding the Veteran’s service in Thailand, further development is required to determine whether the Veteran was exposed to herbicide agents while serving in Thailand, on either a direct or presumptive basis. The Board notes that the appellant has not provided 60-day windows for the dates of the Veteran’s service in Thailand, which is required by the JSRRC before it will begin research. However, the AOJ must submit multiple requests to the JSRRC to cover the relevant time window in 60-day increments because VA’s duty to assist is not bound by the JSRRC’s 60-day limitation. See Gagne v. McDonald, 27 Vet. App. 397 (2015). Additionally, the Board observes that the Veteran’s military personnel records reflect that he worked with nuclear weapons. See August 1974 order awarding the Basic Missileman Badge; November 1976 performance report; June 1979 indication that the Veteran had been previously certified for personnel reliability program duties; February 1983 Personnel Reliability Certificate; and June 1984 performance report. Notably, lung cancer is a radiogenic disease under 38 C.F.R. § 3.311. On remand, the AOJ should attempt to determine what, if any, exposure the Veteran had to chemical, biological, and radiological agents during this period. If there is any evidence of exposure to ionizing radiation, all appropriate additional development under 38 C.F.R. § 3.311 should be completed. Finally, on remand, a medical opinion should be obtained as to whether the cause of the Veteran’s death was related to, or caused by his service. An August 1979 service treatment record indicates that the Veteran had occupational exposure to paint, fumes and vapors during service. A medical opinion should be obtained that addresses whether the Veteran’s lung cancer was etiologically related to these toxic exposures during service. The matter is REMANDED for the following actions: 1. Ensure that the Veteran’s complete military personnel record, to include all trainings, certifications, and evaluations, is in the claims file and clarify the dates of the Veteran’s service in Thailand. 2. Send a request to the JSRRC and/or other appropriate repository in an effort to substantiate any herbicide agent exposure while the Veteran was stationed in Thailand at U-Tapao RTAFB and Takhli RTAFB. Request unit histories, daily logs, and any other relevant information from the Veteran’s unit during the relevant time period. A determination as to whether the Veteran was exposed to C-123 and other aircraft known to have sprayed an herbicide agent must be made in a formal finding. Any response received should be documented in the claims file, and any recommended follow-up action undertaken. 3. Ask the appellant to identify any additional information or evidence regarding any radiation exposure the Veteran may have had during service. 4. Complete all appropriate development as to any radiation exposure related to the Veteran’s service duties in handling nuclear weapons, or any other potential sources of radiation exposure. All development efforts should be documented in the claims file. 5. Obtain a VA medical opinion from a qualified medical professional to determine the likely etiology of the cause of the Veteran’s death. The medical professional should be provided with a full copy of the claims file, including this Remand, and a complete rationale should be provided for any opinion expressed. The medical professional should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the cause of the Veteran’s death is related to or caused by his active service, to include his documented exposure to paint, fumes, and vapors. A thorough explanation must be provided for the opinions rendered. If the medical professional cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Then, readjudicate the issue on appeal. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel