Citation Nr: 21062960 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-29 459 DATE: October 12, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1953 to May 1974. The Board is thankful for his years of service. The Veteran died in August 2012; the Appellant is his surviving spouse, who seeks service connection for his cause of death. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in January 2019. At the time of the Veteran's death in August 2012, the RO had just denied his claim for service connection for diabetes mellitus, diabetic neuropathy, leukemia, non-Hodgkin's lymphoma, and heart disease, all claimed as secondary to herbicide agent exposure. His spouse, the Appellant, filed a request to be substituted as claimant in December 2012 so that she could appeal that decision. The Appellant also filed a separate claim for service connection for the Veteran's death. In the January 2019 decision, the Board found that the Appellant's claim for service connection for cause of death was inextricably intertwined with the prior service connection claims, but the RO had not yet adjudicated the Appellant's request for substitution in those claims. The Board therefore remanded, instructing the RO to adjudicate whether the Appellant met the basic requirements for substitution, and proceed with the claims accordingly. In April 2019, the RO found that the Appellant met the requirements for substitution in a pending claim for service connection for a lower back disc condition, and sent her a letter notifying her that she had been substituted as claimant. The RO did not adjudicate whether the Appellant could be substituted in the claims for service connection for diabetes mellitus, diabetic neuropathy, leukemia, non-Hodgkin's lymphoma, and heart disease. The Appellant received no notification as to the status of her request for substitution in those claims. Nevertheless, in June 2021, the RO issued a decision confirming and continuing denial of service connection for leukemia only; inexplicably, the decision did not address the other claims denied in August 2012. The RO then issued a Supplemental Statement of the Case (SSOC) again denying the Appellant's claim for service connection for cause of death. This procedural hiccup is, on its own, enough to force a remand. When a case is remanded, an appellant is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the RO does not substantially comply with the Board's remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. Id. The January 2019 remand instructed the RO to adjudicate whether the Appellant could be substituted as claimant in the claims for service connection for diabetes mellitus, diabetic neuropathy, leukemia, non-Hodgkin's lymphoma, and heart disease, and to notify the Appellant of their decisionthe RO simply did not comply with these instructions. Furthermore, even if the RO had substantially complied with the January 2019 remand instructions, the Board would require additional evidence before rendering a decision. The Appellant claims service connection for the Veteran's cause of death to include as secondary to herbicide agent exposure, and argues that exposure to herbicide agents should be presumed. The Veteran did not serve in the Republic of Vietnam as that service is defined in VA regulations. See 38 C.F.R. § 3.307(a)(6)(iii). However, the Veteran served at the Ubon Tapao Royal Thai Air Force Base (Ubon Tapao) in Thailand from December 1967 to December 1968. Although there is no presumption of herbicide exposure for service in Thailand, 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, including Ubon Tapao, where listed herbicides may have been sprayed. See VBA Manual M21-1, IV.ii.1.H.5. While the VBA M21 Manual is not binding on the Board and does not constitute Board policy or procedures, it is generally presumed from the Manual provision and supporting material that herbicides were hand-sprayed around the perimeter of identified bases in Thailand during certain periods of the Vietnam War era. See 38 C.F.R. § 19.5; VBA Manual M21-1, IV.ii.1.H.5. If a veteran served at the Ubon Tapao or at several other bases in Thailand during the Vietnam Era between February 28, 1961, and May 7, 1975 as a security police policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near the air base perimeter, as shown by the military occupation specialty, performance evaluations, or other credible evidence, then herbicide exposure should be presumed on a facts-found or direct basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). In January 2012, the Veteran testified that part of his duties as a jet engine mechanic involved removing branches and bamboo stalks from planes that had flown at low altitudes, including in areas around the perimeter that had been sprayed with herbicides. He also testified that he worked on the flight line, which was kept clear with herbicides. The Appellant gave the same testimony regarding the Veteran's service at Ubon Tapao. The RO attempted to corroborate the Veteran's claimed herbicide exposure, but was unable to do so. Searches conducted by the Veterans Benefits Administration Military Records Research Center (MRRC) and the Joint Services Records Research Center (JSRRC) were unable to corroborate the Veteran's exposure to herbicide agents. Although the Veteran's Military Occupational Specialty (MOS) did not specifically require him to serve on the perimeter of the base, regularly coming in contact with the perimeteror with vegetation brought in from the perimeteris enough to establish exposure. On review of the record, the Board has found no reason to question the Veteran's or the Appellant's credibility. The Board finds the Veteran to be both competent and credible in detailing his experiences, and how he may have been exposed to herbicide agents. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, while the MRRC and JSRRC have not been able to corroborate the Veteran's herbicide exposure, the Board is ultimately persuaded by the Veteran's and Appellant's competent and credible statements. Resolving all doubt in favor of the Appellant, the Board finds the Veteran was exposed to herbicide agents during his Vietnam era service in Thailand. Unfortunately, this is not the end of the analysis. The causes of death listed on the Veteran's death certificateadult failure to thrive, chronic kidney disease, congestive heart failure, and hypertensionare not presumptively associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). A medical opinion is necessary to determine whether exposure to herbicide agents contributed to the Veteran's death. The matters are REMANDED for the following action: 1. Issue a decision adjudicating whether the Appellant meets the basic eligibility requirements to substitute for the Veteran regarding the claims for service connection for leukemia, non-Hodgkin's lymphoma, diabetes mellitus, and diabetic neuropathy. See August 2012 rating decision. (a) If the basic eligibility requirements are met, send the Appellant and her representative appropriate notice with respect to her status as a substituted party, clearly indicating that VA recognizes her as the substituted party. (b) If the basic eligibility requirements are not met, inform the Appellant and her representative in writing. 2. Obtain a medical opinion from an appropriate clinician regarding the nature and etiology of all conditions that contributed to the Veteran's death. The entire claims file, including a copy of this remand, should be made available to the examiner for review. Once the examiner certifies that they have reviewed the full claims file, they shall answer the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's adult failure to thrive was principally or contributorily caused by exposure to herbicide agents, exposure to jet fuel, or by any other incident of service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's chronic kidney disease was principally or contributorily caused by exposure to herbicide agents, exposure to jet fuel, or by any other incident of service? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was principally or contributorily caused by exposure to herbicide agents, exposure to jet fuel, or by any other incident of service? (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's congestive heart failure was principally or contributorily caused by exposure to herbicide agents, exposure to jet fuel, or by any other incident of service? (e) Is it at least as likely as not (50 percent or greater probability) that exposure to herbicide agents, exposure to jet fuel, or any other incident of service principally or contributorily caused any other condition that contributed to causing the Veteran's death? (f) Is it at least as likely as not that any of the Veteran's already service-connected conditions (listed on a June 2021 Rating Decision Codesheet) contributed to the Veteran's death in any way? The examiner must provide a complete rationale for all opinions stated, citing all evidence and medical literature relied upon. If the examiner cannot provide an opinion without resorting to speculation, the examiner must explain why. 3. This case has been Advanced on the Docket. The Agency of Original Jurisdiction (AOJ) must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If an opinion is deficient in any manner, the AOJ must undertake immediate corrective action before returning the case to the Board. Signature on next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.