Citation Nr: 20007594 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-11 103 DATE: January 29, 2020 REMANDED Entitlement to service connection for chronic lymphocytic leukemia, to include as due to exposure to herbicides, for substitution as claimant and accrued benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1972 to April 1977. He died in April 2013 and is survived by his wife, who is the Appellant. In November 2015, the agency of original jurisdiction (AOJ) determined that the Appellant applied for and was a proper substitute claimant with respect to the Veteran’s pending appeal. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1000(a) (2018). If a claimant dies while a claim for any benefit under law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121 (a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. Hence, the Appellant’s application for substitution as claimant also served as an application for accrued benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Appellant testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. Entitlement to service connection for chronic lymphocytic leukemia, to include as due to exposure to herbicides, for substitution as claimant and accrued benefits purposes, is remanded. The Veteran claimed service connection for chronic lymphocytic leukemia. He proffered his belief that he developed this disability as a result of his exposure to herbicides and/or other toxic chemicals during service. The record does not establish that he served in Republic of Vietnam during his period of military service. This does not, however, preclude the Veteran from establishing entitlement to service connection for chronic lymphocytic leukemia on a presumptive basis due to exposure to herbicides if exposure to such is shown. See 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2018) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). In this case, the Veteran contended that he was exposed to herbicides while stationed at Kadena Air Base in Okinawa, Japan. The Veteran submitted an internet article that reported on the use and storage of Agent Orange in Okinawa, to include movement of toxic chemicals from Okinawa in “Operation Red Hat.” In statements from the Veteran’s son, he attested that his father told him that while stationed at Kadena AFB and assigned to a Field Maintenance Squadron, he worked on aircraft, which were used to transport and distribute Agent Orange. He claims that the Veteran was directed to clean spills from the barrels of Agent Orange, and he came in contact with Agent Orange while repairing aircrafts, which were covered in Agent Orange. Through written statements and during the October 2019 Board hearing, the Veteran’s wife and daughter also testified that in service, the Veteran’s duties consisted of repairing aircrafts which involved scraping of corrosion and exposed him to hazardous chemicals to include Agent Orange. Service personnel records confirm that the Veteran served at Kadena Air Base in Japan while attached to the 376th Field Maintenance Squadron as a Structural Repairman. VA policy provides a procedure for verifying exposure to herbicides in locations other that the Republic of Vietnam or along the demilitarized zone in Korea, which procedure requires that “[i]f the claimant did not provide approximate dates, location(s), and nature of the alleged exposure to herbicides,” the RO should “send a subsequent development letter and include the VBMS AO-Exposure General Notice paragraph.” The policy provides that if VA receives the requested information, an e-mail with the dates, location, and circumstances of claimed herbicide exposure is to be sent to the Compensation Service with a request that DoD’s inventory of herbicide operations be reviewed to determine whether herbicides were used as claimed. If the Compensation Service does not confirm that herbicides were used as claimed, the RO should determine whether the Veteran provided sufficient information to permit a search by the (Joint Services Records Research Center) (JSRRC). If VA does not receive the information (or does not receive sufficient information), the case is to be referred to the RO JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist and the claim should then be decided based on the evidence of record. In January 2014, the AOJ determined that there was insufficient information of record to request a research of unit records from the JSRRC to verify herbicide exposure. Subsequently, lay testimony from the Veteran’s family provided additional information regarding the circumstances of his service in Okinawa, includes the type of duties performed by the Veteran. As such, the Board finds that an additional effort to confirm any possible toxic chemical exposure, including exposure to Agent Orange, should be undertaken. The matters are REMANDED for the following actions: 1. The AOJ should submit a request to the JSRRC for verification of exposure to herbicides or other toxic chemicals. If no records are available from the JSRRC, a response to that effect is required and should be documented in the file. A Formal Finding should be issued by the JSRRC coordinator. 2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue. If the benefit sought on appeal is not granted, the Appellant should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.