Citation Nr: 21066146 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-15 451 DATE: October 28, 2021 REMANDED Entitlement to service connection for prostate cancer, for accrued benefits purposes, is remanded. Entitlement to service connection for coronary artery disease (CAD), for accrued benefits purposes, is remanded. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is remanded. Entitlement to burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to April 1970. The Veteran died in December 2012 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a hearing with the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is of record. While the Board regrets further delay, the appeal must be remanded for further evidentiary development in an effort to afford the Appellant every opportunity to prevail on her claims. The Veteran, prior to his death, as well as the Appellant in various statements and during her hearing testimony, have argued that the Veteran was exposed to herbicides during his active service and that service connection is warranted for his prostate cancer and CAD. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Diseases associated with exposure to certain herbicide agents during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). The list of diseases associated with herbicide agent exposure includes prostate cancer and CAD. 38 C.F.R. § 3.309(e). Several theories of entitlement have been asserted. First, it is noted that the Veteran was first stationed at Fort Gordon, Georgia during the beginning of his service. Fort Gordon is a recognized site that tested or stored herbicide agents. See List of Herbicide Tests and Storage in the U.S. at: https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp. However, the List of Herbicide Test and Storage Sites shows that herbicide testing was conducted at Fort Gordon's Training Area 47 between July 15-17, 1967, and during an "Unspecified Date in 1968, but prior to July 1, 1968." The Veteran's military personnel records note that he was stationed at Fort Gordon for basic training beginning in August 1968 before being stationed at Fort Polk, Louisiana for his advanced individual training in November 1968. The RO has not conducted any development and made no formal finding as to whether the Veteran was exposed to herbicide agents during his time at Fort Gordon. Such should be remedied on remand. Second, the Veteran, prior to his death, and the Appellant during her hearing testimony, have asserted that the Veteran's aircraft stopped in the Republic of Vietnam en route to Thailand. A Veteran who served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to certain herbicide agents. 38 U.S.C. § 1116. While a response from the Defense Personnel Records Information System (DPRIS) in December 2012 notes that they were unable to verify or document that the Veteran's plane stopped for a layover in the Republic of Vietnam, no further action was conducted. It also does it appear that the Veteran was notified of this determination in an initial December 2012 rating decision that denied his claim prior to his death and his spouse's substitution as the Appellant. While on remand, an additional attempt should be made to determine if the Veteran stopped in the Republic of Vietnam en route to Thailand and a formal finding should be associated with the record. Third, the Veteran and the Appellant have asserted that he was exposed to herbicide agents while stationed in Thailand from April 1969 to April 1970. In addition to the above possibilities for herbicide agent exposure, VA's Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should also be extended to veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force Bases (RTAFBs), to include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Specifically, herbicide exposure may be conceded on a facts-found basis if a veteran served on one of the listed RTAFBs during the Vietnam Era if they served as a security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The Veteran stated prior to his death, as did the Appellant during her hearing, that he crossed the perimeter of Udorn RTAFB on numerous occasions, including in the transportation of barrels of Agent Orange, while serving in his Military Occupational Specialty as a Truck Driver. The Veteran and the Appellant have also stated that he was stationed at Camp Friendship, which the Board notes is adjacent to Korat RTAFB, and that his barracks were right outside the perimeter. The Appellant has also resubmitted portions of the Veteran's service treatment records and has pointed out that the Veteran was treated at times at the U.S. Army's 7th Radio Research Field Station (RRFS), also known as Ramasun Station, and the U.S. Army's 31st Field Hospital Complex, which are both located in Udorn and Korat, respectively. It is not clear, however, where these treatment locations are relative to Udorn and Korat RTAFBs. In VA's aforementioned DPRIS response, however, it is only noted that the Veteran's unit, the 569th Transportation Company, was located at Camp Khon Kaen. While the response acknowledges that the mission of 569th was to provide ground transportation of cargo to all Army and Air Force installations in Northeast Thailand, they were unable to verify this Veteran's actual duties or his proximity to the air bases. On remand, the RO should consider all of the above in attempting to reverify the Veteran's whereabouts in Thailand with respect to any herbicide agent exposure. As to the DIC and burial benefits claims, these matters are inextricably intertwined with the above service connection claims and must be deferred pending the Board's below ordered development. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, the Board notes that the record reflects a Privacy Act request dated October 11, 2019 from the Appellant's attorney requesting a copy of the Veteran's claims file, which does not appear to have been fulfilled. Although it has been more than two years since this request, and the Appellant's attorney did not make any additional request at the August 2021 hearing, fulfillment of the Privacy Act request is nevertheless necessary. While the Board may undertake its own efforts to ensure that all Privacy Act requests are satisfied, as the claims are being remanded for additional development there is no prejudice to the Appellant in referring the Privacy Act request to the Agency of Original Jurisdiction (AOJ) for appropriate action. The matters are therefore REMANDED for the following actions: 1. Conduct any necessary development to verify the Veteran's asserted exposure to herbicide agents during his military service, to include whether the Veteran was exposed during his time at Camp Gordon, Georgia from August 1968 to November 1968, whether the Veteran's flight to Thailand around mid-April 1969 involved a stop-over in the Republic of Vietnam, and whether the Veteran's duties as a Truck Driver took him on or near the perimeter of Udorn and/or Korat Royal Thai Air Force Bases. Consideration should be given to defoliant testing conducted at Fort Gordon's Training Area 47 in July of 1967 and an unspecified date in 1968, and the Veteran's medical treatment at the U.S. Army's 7th Radio Research Field Station and 31st Field Hospital as noted in several service treatment records, and the assertions that the Veteran was stationed at Camp Friendship rather than Camp Khon Kaen. A formal finding should be made regarding the likelihood of such exposures. 2. Complete the October 2019 Privacy Act request by providing the Appellant's attorney with the requested copy of the Veteran's claims file. 3. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, to include the claims for DIC and burial benefits, the Appellant and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.