Citation Nr: 1806534 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-11 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for prostate cancer, to include as due to herbicide exposure, for accrued purposes only. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to burial benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1951 to May 1972. The Veteran died in August 2011, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the case was subsequently transferred to the jurisdiction of the Columbia, South Carolina RO. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for the cause of the Veteran's death, entitlement to burial benefits, and the underlying merits of the claim for service connection for prostate cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a July 2009 rating decision, the RO denied the claim for service connection for prostate cancer. The Veteran was notified of the decision in the same month, but did not appeal or submit new and material evidence within the one year period thereafter. 2. The evidence received since the July 2009 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim for service connection for prostate cancer. CONCLUSIONS OF LAW 1. The July 2009 rating decision denying service connection for prostate cancer is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the July 2009 rating decision is new and material as to the claim for service connection for prostate cancer, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In the July 2009 rating decision, the RO denied the claim for service connection for prostate cancer, finding that there was no evidence of treatment for or a diagnosis of prostate cancer during service. The RO also noted that, although prostate cancer is a disease associated with exposure to herbicides, the record did not reflect that the Veteran had service in the Republic of Vietnam. The Veteran was notified of the July 2009 rating decision and of his appellate rights in a letter sent to him the same month; however, he did not submit a notice of disagreement with the decision. There was also no relevant evidence received within one year of the issuance of the decision. Therefore, the July 2009 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103 (2017). In July 2011, the Veteran submitted an application to reopen his claim for service connection for prostate cancer. Following his death in August 2011, his wife requested that she be substituted as the appellant. In August 2012, she submitted an excerpt from the Veteran's military personnel record which indicated that he had service in the Air Base Squadron at the Takhli Royal Thai Air Force Base (RTAFB) in Thailand from May 1970 to March 1971. His duties required him to manage personnel and resources, monitor all operations involving receipt storage and issues of bulk products, maintain strict quality control and accurate accounts of all fuel and associated documents, and coordinate and advise fuel management of all unusual events and problem areas. In March 2013, she also submitted photographs of the Veteran working on the flight line at the Takhli RTAFB. The Veteran's personnel records and photographs regarding his service in Thailand during the Vietnam era are new and material to the claim for service connection because they raise the possibility that he was exposed to herbicides in service. VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases. See VA Adjudication Procedure Manual, M21-1, Part IV.ii.1.H.5. As such, herbicide exposure should be conceded on a facts found or a direct basis if a veteran served in the Air Force in Thailand during the Vietnam era at one of the listed bases, including the Takhli Royal Thai Air Force Base, as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. M21-1, Part IV.ii.1.H.5.b. Although the record contained evidence of the Veteran's service in Thailand prior to the July 2009 decision, the photographs and personnel records submitted suggest that he might have served near the air base perimeter of the Takhli RTAFB. Based on the foregoing, the Board finds that the evidence submitted since the final July 2009 rating decision relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the claim can be addressed. ORDER New and material evidence having been received, the claim for service connection for prostate cancer is reopened. REMAND The Board notes that the Veteran's wife requested that she be substituted as the appellant in this case. See September 2011 statement. However, to date, it appears that the RO has adjudicated the issue as a claim for accrued benefits. See August 2012 rating decision; February 2014 statement of the case; June 2015 supplemental statement of the case. The Board notes that, in substitution cases (unlike an accrued benefits claim), the record is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. Thus, if the appellant is a proper substitute claimant, additional evidence may be considered. Therefore, the AOJ should clarify whether the appellant wishes to pursue the claim for service connection for prostate cancer as a substitute for her husband or on an accrued benefits basis, and the AOJ should adjudicate whichever she chooses. See Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010) (an accrued-benefits claimant has two options: request substitution or pursue a claim for accrued benefits); Reliford v. McDonald, 27 Vet. App. 297, 303-04 (2015) (the appellant has the right to choose to waive substitution). Moreover, the Board finds that additional development is necessary prior to final adjudication of the appellant's claims. The Veteran's death certificate listed the immediate cause of death as cardiac arrest, and stage IV colon cancer, intraperitoneal hemorrhage, and anticoagulation for pulmonary embolism were listed as underlying causes. Acute renal failure and pulmonary embolism were identified as other significant conditions contributing to death. During his lifetime, the Veteran was not service-connected for any disability. His service treatment records are negative for any complaints, treatment, or diagnosis of the conditions which caused or contributed to his death. Nevertheless, the appellant has contended that the Veteran had herbicide exposure while serving in Thailand at the Takhli RTAFB during the Vietnam Era. Although the Veteran's service personnel records show service at that base, the actual locations of where he performed his service-related duties on the base are unclear. As noted above, VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases. See VA Adjudication Procedure Manual, M21-1, Part IV.ii.1.H.5. If a veteran contends that he had service near the air base perimeter, the VA Adjudication Procedures Manual (M21-1) requires that the Veteran be requested to provide approximate dates, location, and nature of the alleged exposure. M21-1, Part IV.ii.1.H.5.b. The case must then be sent to the Joint Services Records Research Center (JSRRC) coordinator to issue a formal finding regarding the sufficiency of information required to verify herbicide exposure. In September 2011, VA issued a memorandum which found that there was insufficient information to send the claim to the JSRRC for verification of herbicide exposure. Following the issuance of that memorandum, the appellant submitted additional military personnel records which show dates and details of the Veteran's service in Thailand. Accordingly, a remand is required to determine whether there is sufficient information to verify the Veteran's claimed herbicide exposure. Moreover, the diseases presumed to be associated with herbicide exposure include ischemic heart disease. 38 C.F.R. § 3.309(e). Given that the Veteran's immediate cause of death was cardiac arrest, a remand is necessary to determine whether he had ischemic heart disease. In addition, although colon cancer is not listed as a disease that the VA has associated with herbicide exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Therefore, the Board finds that a VA medical opinion is necessary to address this theory of entitlement. Finally, the burial benefits claim remains inextricably intertwined with the cause of death claim, and therefore a remand is required. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who provided treatment for the Veteran for prostate cancer, a heart disorder, or colon cancer. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records which have not yet been associated with the claims file. 2. The AOJ should send a notice letter to the appellant explaining how to establish entitlement to accrued benefits and substitution. She should be asked whether she wishes to pursue substitution as opposed to pursuing a claim for accrued benefits. The appellant should be advised of her right to waive substitution. 3. If the appellant responds that she would like to take the opportunity to substitute, the AOJ should adjudicate the issue of substitution in the first instance. See 38 C.F.R. § 3.1010(e). A copy of the written notification of the determination should be included in the claims folder. 4. The AOJ should request the appellant to provide details regarding the Veteran's exposure to herbicides, including information about approximate dates, location, and nature of the exposure. Any response or lack thereof should be documented in the record. The case should then be sent to the Joint Services Records Research Center (JSRRC) coordinator to issue a formal finding regarding the Veteran's herbicide exposure. It should be noted that the appellant has contended that the Veteran was exposed to herbicides while serving in Thailand at the Takhli RTAFB during the Vietnam Era. If there is insufficient information to verify exposure, this should be clearly noted in the record. 5. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a VA medical opinion to determine the nature and etiology of the cause of the Veteran's death. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran and the appellant are considered competent to attest to factual matters of which they had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran or the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify any heart disorders the Veteran had during his lifetime and specifically indicate if the Veteran had ischemic heart disease. In so doing, the examiner should consider VA and private medical records and the Veteran's death certificate and indicate whether the cardiac arrest that caused his death was a manifestation of ischemic heart disease. If the Veteran did not have ischemic heart disease, he or she should state whether it is at least as likely as not that the Veteran's cardiac arrest was causally or etiologically related to his military service, to include herbicide exposure therein (regardless of the fact that such an association may not be presumed). The examiner should also address whether it is at least as likely as not that the Veteran's colon cancer was causally or etiologically related to his military service, to include herbicide exposure therein (regardless of the fact that such an association may not be presumed). (The term "at least as likely as not "does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]"38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The AOJ should review the medical opinion to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 7. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 8. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the appellant and her representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). This claim 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. §§ 5109B, 7112 (2012). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs