Citation Nr: 21009866 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-50 802 DATE: February 23, 2021 REMANDED Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide exposure, for purposes of accrued benefits, is remanded. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, for purposes of accrued benefits, is remanded. Entitlement to service connection for a kidney disability, to include renal failure and chronic kidney disease, for purposes of accrued benefits, is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to Disability and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to September 1967. The Veteran died in January 2018. The appellant is his surviving spouse and has been substituted to complete the service connection claims pending at the time of the Veteran’s death. This case is before the Board of Veterans’ Appeals (Board) on appeal from August 2014 and August 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the August 2014 decision, the RO denied entitlement to service connection for CAD, diabetes mellitus, and a kidney disability claimed as renal failure. In October 2014, VA received the Veteran’s Notice of Disagreement (NOD). In August 2017, the RO issued a Statement of the Case (SOC). In September 2017, VA received the Veteran’s timely VA Form 9 appeal to the Board. In the August 2018 decision, the RO denied entitlement to service connection for cause of the Veteran’s death and DIC benefits under 38 U.S.C. § 1318. In September 2018, VA received the appellant’s NOD. In June 2019, VA issued a SOC. In August 2019, VA received the appellant’s timely VA Form 9 appeal to the Board. On November 2, 2020, the appellant testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. At the hearing, the appellant’s attorney requested a 60-day extension of time following the hearing to provide additional evidence in support of the appellant’s claim. On December 31, 2020, the Board received correspondence from the appellant’s attorney requesting an additional 60-day extension of time to submit additional evidence because, “I have yet to receive the information that is needed.” As noted below, a remand is necessary to request a search of service personnel records based on the Veteran’s assertion that during his Naval service he served under the auspices of the Air Force for 6 months in 1966 and spent 2 weeks in Vietnam during that time period. Neither the appellant nor her attorney has indicated that they intend to submit any personnel records; and, moreover, as the appellant’s attorney has failed to indicate what evidence she has yet to receive, or why she has been unable to obtain it thus far, good cause for an additional extension of time has not been shown. Notably, nearly 60 days has passed since the December 31, 2020 extension request, and no additional evidence has been received thus far. Moreover, during the hearing, the appellant’s daughter testified that she located a letter in a scrapbook of her late father’s that the Veteran sent to his parents regarding service under the auspices of the Air Force. The undersigned encouraged her to submit that evidence, and the record does not reflect that any such evidence has been received thus far; yet, this evidence was in the possession ot the appellant at the time of the hearing in November 2020. In the interest of efficiency, further extensions of time are not warranted at this time, and any additional evidence obtained may be submitted pursuant to this remand. 1. Entitlement to service connection for CAD, to include as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 3. Entitlement to service connection for a kidney disability, to include renal failure and chronic kidney disease. 4. Entitlement to service connection for cause of the Veteran’s death. 5. Entitlement to assignment of DIC under 38 U.S.C. § 1318. The Veteran and appellant have contended that the Veteran was exposed to herbicide agents during service, namely, agent orange and agent purple, and that the Veteran developed CAD, DM, and a kidney disability as a result of herbicide exposure. Prior to his death, the Veteran had a diagnosis of CAD, also recorded as ischemic heart disease (IHD). See MICU progress note dated May 19, 2013. The Veteran also had a diagnosis of DM. According to the Veteran’s Certificate of Death, the Veteran’s immediate cause of death was refractory cardiogenic shock, due to (or as a consequence of) systolic congestive heart failure due to coronary artery disease. Additionally, severe peripheral vascular disease, end stage renal disease, and cellulitis of the foot were cited as significant conditions contributing to death, but not resulting in the underlying cause(s). Regarding the assertions of in-service agent orange exposure, the Veteran and appellant have asserted that the Veteran, whose regular duty station at the time was the U.S. Naval Air Station (NAS) in Jacksonville, Florida, was “boots on the ground” in Vietnam while temporarily assigned to an Air Force unit. Specifically, they have contended that the Veteran was laid over in Vietnam for several weeks as a result of a mechanical failure of the C-130 transport plane which brought him to the country. Alternatively, the Veteran and appellant have averred that, during his temporary assignment to the Air Force, the Veteran flew missions within the United States on C-130s transporting herbicide agents. Finally, the Veteran believed that he may have been exposed to agent purple while assigned to a warehouse, which allegedly served as a storage site for the herbicide, at the Jacksonville NAS station. To this end, he submitted a map of the Jacksonville NAS and identified the warehouses at which the claimed exposure occurred. See Jacksonville NAS map uploaded on April 23, 2014. In a May 2012 statement, the Veteran provided additional information regarding his claimed herbicide exposure. He claimed that, in the fall of 1965, he was assigned to temporary duty with the Air Force for a period of six months. During that time, the Veteran stated that he served as an aviation storekeeper on a C-130. His duties “included loading assigned loads and unloading the same at the designated location.” He asserted that, at several points, the cargo included agent orange in “55 gal steel drums,” with at least two shipments (and the Veteran) going to a NAS in Alameda, California. However, the Veteran further recalled that, “one of those deliveries required our aircrew to continue to Vietnam delivering defoliant to Tan Son Nhut Air Force Base. Other cargo included equipment and non-perishable supplies.” Unfortunately, the Veteran’s “flight log was lost after I returned to NAS JAX.” In June 2013, a statement purportedly from the Veteran’s second shift supervisor during service, H.P., was associated with the claims file. H.P. reported that the Veteran “was picked to be assigned to a U.S. Air Force Cargo Handling Command on a (TAD) Temporary Duty for the purpose of handling Navy material” and that the Veteran “often traveled with USAF” during his assignment. Furthermore, H.P. indicated that, “on one such trip [the Veteran] was stranded in Viet Nam for 2 or 3 weeks due to mechanical problems on the Air Craft.” As a result, H.P. was notified by the Air Force, “that the Veteran would be delayed in returning to his parent command.” The Veteran’s service records provide no evidence that the Veteran was ever assigned to TAD with the Air Force. Rather, the service records in the claims file relate to Navy service only, and do not show that the Veteran had any active duty overseas. A February 2017 Report of General Information indicates that the Veteran was contacted by telephone to clarify his NOD assertions. The report notes that the Veteran indicated a temporary assignment to Military Air Transportation System (not TDY) in 1966 for six months and that he could not recall exact dates, but that he would look at his records for that information. The Veteran did not thereafter provide any dates or copies of any documents to support his contentions. Attempts have been made to obtain additional service records to corroborate the Veteran’s assertion of his travel out of the country; however, it is not clear whether there has been any search of Air Force records for this Veteran because he served in the Navy, and not the Air Force. Given the statements from the Veteran and H.P. summarized above, and given that personnel records corroborate that the Veteran served at a naval air station, a separate search for service records may exist for the Veteran’s period of Naval service with the Air Force. Therefore, on remand, the RO should attempt to locate any additional personnel records from all potential sources, including from the Air Force in 1966 to corroborate the Veteran’s claimed period of TAD in the Air Force. Additionally, attempts to corroborate assertions of H.P. should also be made. Also, a February 2017 deferred rating decision reflects that the Veteran’s date of birth is recorded differently on his DD Form 214 than what is noted in the STRs. Indeed, the Veteran’s DD Form 214 reflects that the Veteran’s date of birth is June 16, 1943; however, the STRs show the date of birth as January 16, 1943. This discrepancy should be clarified on remand; and, any necessary records searches necessary as a result of this discrepancy should be conducted. Additionally, the claims for service connection for the cause of the Veteran’s death and entitlement to DIC under 38 U.S.C. § 1318 are dependent on the outcome of the claims for service connection for IHD, DM, and a kidney disability, they are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (holding that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Review of these claims is deferred pending resolution of the remanded claims. Finally, the appellant and Veteran have asserted that the Veteran’s kidney disability, to include renal failure and chronic kidney disease was the result of exposure to herbicides, was the result of herbicide exposure. Renal failure and chronic kidney disease are not on the list of diseases under 38 C.F.R. § 3.309(e) as associated with herbicide exposure; therefore, service connection on a presumptive basis is unavailable. However, service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). Therefore, if the RO verifies that the Veteran had service in Vietnam or was otherwise exposed to herbicides during service, the RO should also seek an opinion regarding nexus of the Veteran’s kidney disability to in-service herbicide exposure. The matters are REMANDED for the following action: 1. Reconcile the Veteran’s January 16, 1943 date of birth with the June 16, 1943 date of birth noted on the Veteran’s DD Form 214; and, if necessary conduct additional records searches based on both recorded birth dates. 2. Request from the appellant any evidence in her possession that supports her late husband’s assertions of temporarily being assigned to the Air Force in 1966, including, but not limited to, any letters he sent to his parents during active duty. 3. Request from all potential sources, the Veteran’s complete service personnel and medical records to verify the Veteran’s claimed “boots on the ground in Vietnam” involving mechanical failure of his aircraft, a C-130, while making a delivery to Tan Son Nhut Air Force Base in Vietnam. In particular, the RO should obtain any outstanding Air Force records from the claimed period of temporary active duty (claimed as beginning around fall 1965, and extending into 1966) with the Air Force and described as with U.S. Air Force Cargo Handling Command. The RO should also research whether records exist from the Air Force rather than the Navy, to include (but not limited to) Aircraft Mishap or Accident Reports from late 1965 to early 1966 regarding mechanical failure of a C-130 at Tan Son Nhut Air Force Base. 4. Review the memo received in April 2017 from H.P. and conduct any necessary research to corroborate whether H.P. was assigned to the Supply Department as a 2nd shift supervisor during the time period when the Veteran served there. 5. If the RO confirms that the Veteran was in Vietnam during 1966, or was otherwise exposed to herbicides during service, obtain a VA opinion regarding the nature and etiology of the Veteran’s kidney disability, to include renal failure and chronic kidney disease. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner, and the examiner should indication that the claims file was reviewed in connection with the opinion. A rationale for all opinions must be provided. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s kidney disability, to include renal failure and chronic kidney disease, is related to in-service herbicide exposure. 6. Readjudicate the appellant’s claims based on a review of the entire evidentiary record If any of the benefits sought on appeal remain denied, provide the appellant and her representative with a Supplemental Statement of the Case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.