Citation Nr: 21075422 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-58 018 DATE: December 20, 2021 REMANDED Entitlement to service connection for coronary artery disease (CAD), status-post coronary artery bypass graft, is remanded. Entitlement to service connection for prostate cancer, status post prostatectomy, is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1962 to September 1965. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at the Board of Veterans' Appeals (Board) at a videoconference hearing conducted in February 2018. A transcript of the hearing is of record. The Board previously remanded the appealed claims in April 2018, August 2020, and August 2021. They now return to the Board for further review. Regrettably, due to failure of the VA Regional Office (RO) to substantially comply with the requirements of the Board's August 2020 and August 2021 remands, the claims must again be remanded, as explained below. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 1. Entitlement to service connection for CAD, status-post coronary artery bypass graft, is remanded. 2. Entitlement to service connection for prostate cancer, status post prostatectomy, is remanded. 3. Entitlement to service connection for diabetes mellitus, type II, is remanded. The Veteran claims entitlement to service connection for CAD, prostate cancer, and diabetes mellitus on a presumptive basis based on exposure to herbicide agents (e.g., Agent Orange) in service. These claimed medical conditions are all subject to presumptive service connection for Veterans who were exposed to herbicide agents in service or were presumed to have been exposed to herbicide agents based on service in the Republic of Vietnam between January 9, 1962 and May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). The Veteran has not asserted that he served in Vietnam and the Veteran's service records do not reflect service in Vietnam, and hence affirmative evidence is required to support his exposure to herbicide agents to support his claims on this basis. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran has over the course of claim provide different theories of exposure to herbicide agents. In the August 2021 remand, the Board noted the following: In a January 2017 written statement and during his February 2018 Board hearing, the Veteran expressed his belief that he was exposed to Agent Orange while serving in Okinawa, Japan from April 1963 to August 1964, at Camp Kuwae, in the course of his training. He was a member of 173rd Airborne Brigade and participated in parachute jumps as part of training exercises. He reported that he did about four to eight jumps a year from a variety of different aircraft, such as C-130s, C-124s, and Huey helicopters, and he believed that he was exposed to herbicide agents from exposure to aircraft that were used to spray herbicide agents in Vietnam. The Veteran also noted that there was not a lot of foliage on his base and the trees were not tall, thereby impliedly speculating that there may have been herbicide agents also used at the base. In August 2021, the Board noted that in August 2020 it remanded the claims again for uncompleted development. In September 2019, the Compensation Service had informed that while there was no evidence to support the Veteran's assertion of exposure to herbicide agents based on his stationing in Okinawa, Japan, "[u]nless the claim is inherently incredible or clearly lacks merit, it should be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) for any information that this organization can provide to corroborate the Veteran's claimed exposure." In August 2020, the Board had remanded the claim for development with the JSRRC. Subsequent to an initial failure of such development process due to inadequacy of details provided to the JSRRC, a process change has resulted in development inquiries of military records being conducted by VA rather than the JSRRC, with military records made available to VA for this purpose. A VA "Records Research Response" received in April 2021 informed: A professional researcher from the Veterans Benefits Administration, Compensation Service, Military Records Research Center, has completed comprehensive research on the Veteran's claimed exposure, claiming that they were exposed to herbicides from participating in training jumps in C-130s, C-124s, and Huey Helicopters while serving on Camp Kuwae in Okinawa, Japan with Charlie Company, 2nd Battalion, 503rd Infantry from April 1963 through April 1964. The following sources were reviewed in an attempt to substantiate the Veteran's claimed exposure event; the unit history for 2nd Battalion, 503rd Infantry for 1963 and 1964. In conclusion, no evidence was located to support documentation of the claimed exposure event. However, in a statement submitted in June 2020, the Veteran asserted that he had not claimed that Agent Orange was sprayed on the air base in Thailand, but rather that the aircraft on which he had performed jump training missions may have been used in spraying as part of the U.S. undeclared war in Laos and Cambodia. In its August 2021 remand, the Board recognized that secret warfare was conducted by the CIA during the Vietnam Era involving Laos and Cambodia. Some inquiry was therefore found warranted to ascertain whether aircraft with which the Veteran performed jump exercises may have been used for spraying of herbicide agents as part of this CIA undeclared war. The Board remanded the claims again in August 2021 because it did not appear that such development was undertaken by the Veterans Benefits Administration, Compensation Service, Military Records Research Center. Regrettably, the record still does not indicate that such development was undertaken as required. An August 2021 administrative memorandum received from Compensation Service informed that they could not provide evidence to support the claim concerning aircraft used in the Veteran's jump training issues also being used for spraying of herbicide agents, as alleged. The Compensation Service accordingly then advised that such claims, unless inherently incredible or clearly lacking in merit, should be referred to VBA Compensation Service's Military Records Research Center (MRRC) for any information that can be provided to confirm the alleged exposure. It does not appear that this was accomplished. 4. Entitlement to a TDIU is remanded. The TDIU claim remains inextricably intertwined, and hence must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all updated VA treatment records from the VA Community-Based Outpatient Clinic (CBOC) and Dorn Veterans' Hospital in Columbia, South Carolina and any associated outpatient clinics dated from October 2021 to the present. All records and/or responses received should be associated with the claims file. 2. Appropriate inquiries to official sources should be undertaken for verification whether the Veteran was potentially exposed to herbicide agents while serving in Okinawa, Japan (April 1963 to August 1964) as a result of his completing training exercise jumps from aircraft which may have been involved in spraying of herbicide agents in Laos or Cambodia as part of or associated with secret CIA bombing missions. This should include inquiry directed to the VBA Compensation Service's Military Records Research Center (MRRC). Adequate identifying information should be provided so that this research may be undertaken. The Veteran's cooperation should be sought for any necessary information. If necessary, ask the Veteran the approximate dates (a 60-day time frame), location, and nature of the alleged herbicide exposure. All development undertaken for this inquiry and all responses received should be associated with the record. (Continued next page) 3. Thereafter, readjudicate the appealed claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.