Citation Nr: 1806467 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-12 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant and Son ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from November 1964 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center, which declined to reopen a claim of service connection for the cause of the Veteran's death. In September 2017, a Travel Board hearing was held before the undersigned in Philadelphia. A transcript of the hearing is in the record. At the hearing the appellant was granted a 60-day abeyance period for the submission of additional evidence. That time period lapsed; no additional evidence was received. The appellant had been represented by an attorney from the Widener University Veterans Law Clinic; that attorney withdrew representation in August 2015 (prior to certification of this appeal to the Board). The appellant has not submitted a new power of attorney since; accordingly, she is considered unrepresented at the present time. 38 C.F.R. § 14.631(f) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on her part is required. REMAND Historically, a June 2005 rating decision denied service connection for the cause of the Veteran's death based on findings that the Veteran's service treatment records (STRs) do not show findings or treatment relating to the disabilities which caused his death (respiratory failure due to sarcoidosis) or contributed to his death (chronic obstructive pulmonary disease (COPD), congestive heart failure, and diabetes mellitus), and that no evidence showed such disabilities were directly caused or aggravated by his service. The rating decision also noted that there was no evidence that the Veteran set foot in the Republic of Vietnam (to warrant a presumption of exposure to herbicides). The appellant did not disagree with the June 2005 rating decision, and it became final. 38 U.S.C. § 7105. In a January 2012 statement, the appellant (via a former representative), alleged that the Veteran was exposed to Agent Orange while serving at Korat Royal Thai Air Force Base (RTAFB). The June 2005 rating decision did not encompass consideration of exposure to herbicide agents by virtue of service in Thailand. As it is now alleged that the Veteran was so exposed to Agent Orange, and because diabetes mellitus (which warrants a presumption of service connection in a Veteran so exposed) is listed as a contributory cause of death, the newly raised theory of entitlement requires full development. This specifically includes development regarding the circumstances of the Veteran's service prior to any determination as to whether new and material evidence has been received. Notably, no evidence (or allegation) has been received that the Veteran's death-causing disabilities are related to his service other than as due to exposure Agent Orange. VA has developed specific evidentiary procedures to verify whether a Veteran was exposed to herbicides in locations other than Vietnam. M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5, was adopted for application when a Veteran alleges exposure to herbicides in Thailand. It directs, in pertinent part, that if a Veteran served in the U.S. Air Force during the Vietnam Era at one of certain specified RTAFBs (including Korat) as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, then herbicide exposure is to be conceded. Id. If herbicide exposure cannot be conceded based upon the facts described above, the claimant/appellant is asked to provide the approximate dates, location, and nature of the alleged exposure. The information is then referred to the JSRRC for verification of exposure to herbicides. If the claimant/appellant fails to furnish the requested information, the claim will be referred to the JSRRC coordinator for a formal finding that sufficient information required to verify herbicide exposure does not exist. The claim may then be decided based on the evidence of record. Id. The Veteran's service personnel records note he served as an airframe repairman at Korat RTAFB from September 1967 to September 1968 . The evidence of record does not show that he worked as a security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed him near the air base perimeter; accordingly, exposure cannot be conceded on such a basis. Therefore, remand for verification of exposure to herbicides by the JSRRC is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should forward a list of the Veteran's service dates and duty locations (specifically at the Korat RTAFB) as well as the appellant's contention regarding the nature of his exposure to herbicides in service to the JSRRC and request verification of such exposure. The results of this development should be outlined in a memorandum for the record. If the information is insufficient, the AOJ should forward the case to a JSRRC coordinator for a formal finding (for the record) that the information provided is insufficient to verify exposure to herbicides in service. 2. Thereafter, the AOJ should review the record, arrange for any further development suggested by the response to the development sought above, and readjudicate the remanded claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the appellant opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).