Citation Nr: 21029925 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-55 451 DATE: May 17, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1948 to November 1968. Unfortunately, he died in August 2002. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded this matter for additional development. Unfortunately, another remand is necessary. Entitlement to service connection for the cause of the Veteran's death is remanded. The Veteran's death certificate indicates that the immediate cause of his death was acute myelogenous leukemia (AML). At the time of his death, the Veteran was in receipt of service connection for a lumbosacral spine disability, residuals of a hemorrhoidectomy, and a right ear hearing loss disability. He had also been diagnosed with prostate cancer, hypertension, and coronary artery disease (CAD). The appellant claims that the Veteran was exposed to herbicide agents during service in Thailand and the Republic of Vietnam, and that such exposure led to his death. See March 2018 Correspondence to VA. VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain diseases, including B-cell leukemias, prostate cancer, hypertension and ischemic heart disease (i.e., CAD), are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide agent exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. The Veteran's military personnel records reflect that he served on Korat RTAFB in Thailand, from August 1967 to July 1968. The record of assignments within his military personnel records note that during this period his MOS was "M/ Wave Radio Supervisor." The question that remains is whether the Veteran was exposed to herbicide agents while stationed in Thailand. After careful review of the evidence of record, and affording the appellant the benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether the Veteran served near and frequently crossed the perimeter of Korat RTAFB and that he was likely exposed to herbicide agents during service. The appellant stated that the Veteran spent time outside of the base interacting with the children, including teaching them how to play softball. See March 2018 Correspondence to VA. The appellant also stated that the Veteran's duties included testing, repair and calibration of radio communication equipment which would entail being near the perimeter of the base as the aircraft involved were typically staged at the end of the runway. See September 2015 Statement in Support of Claim. In addition, the appellant submitted 10 black and white photographs, which she indicated were taken by the Veteran while he was stationed in Thailand. Several of the photographs show the Veteran outside the base, including one where the Veteran was working in the brush, one at a temple structure, and three where the Veteran was amongst local civilians in a town. The Board finds these pictures to be highly probative evidence that the Veteran frequently crossed the perimeter of Korat RTAFB. In light of all the evidence, the Board finds that the Veteran's service personnel records and the Appellant's statements indicate that the Veteran likely frequently entered and exited the base. This is highly probative evidence that he served near and frequently crossed the perimeter of Korat RTAFB. Resolving any reasonable doubt in the Appellant's favor, the Board finds that the Veteran was frequently near and crossed the perimeter of Korat RTAFB. Therefore, the Board concludes that he performed his duties near the perimeter of the Korat RTAFB and was likely exposed to herbicide agents while stationed in Thailand. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). As such, exposure to herbicide agents is conceded. In light of this finding, remand is warranted to obtain additional VA medical opinions regarding the cause of the Veteran's death. As noted above, VA has determined that there is a presumptive positive association between exposure to herbicide agents and the disorders listed in 38 C.F.R. § 3.309(e), including B cell leukemias. It is unclear whether the AML which is listed on the death certificate as his cause of death is a B cell leukemia. Therefore, remand is necessary to obtain a medical opinion that addresses whether AML is a B cell leukemia. In addition, the Board notes that an August 2002 VA treatment record indicated that the Veteran had been referred to home hospice for diagnoses of terminal leukemia and prostate cancer with bone mets. However, as explained above, the Veteran's death certificate only listed AML as his cause of death. Therefore, remand is necessary to obtain a medical opinion as to whether the Veteran's diagnosed prostate cancer caused or contributed substantially or materially to his death. The Board also notes that the June 2020 VA examiner opined that the Veteran's history of receiving radiation to treat prostate cancer is a risk factor for developing AML. On remand, a medical opinion should be obtained that addresses whether such radiation caused the Veteran's diagnosed AML. Finally, the Board's April 2019 remand directives directed the RO to obtain a medical opinion as to whether it was at least as likely as not any of the disabilities diagnosed before the Veteran's death, alone or in combination, caused or contributed substantially to his death, and specifically requested consideration be afforded to all disabilities noted upon review of the Veteran's medical treatment records. However, the June 2020 VA examiner's opinion only addressed the Veteran's service-connected disabilities and did not provide an opinion for his diagnosed CAD, hypertension, and prostate cancer. The Veteran has a right to compliance with the Board's remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Accordingly, remand is warranted to obtain such opinions. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from the June 2020 VA examiner, or suitable substitute regarding the cause of the Veteran's death. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the examiner. After a review of the claims file, the examiner is asked to respond to the following: (a) Identify whether acute myelogenous leukemia is a B cell leukemia. If and only if the answer to (a) is negative, respond to (b), (c), and (d). (b) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's acute myelogenous leukemia was related to or caused by service, to include exposure to herbicide agents? (c) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's coronary artery disease, prostate cancer, or hypertension, alone or in combination, caused or contributed substantially or materially to his death? **The examiner should address the August 2002 VA treatment record indicating that the Veteran had been referred to home hospice for diagnoses of terminal leukemia and prostate cancer with bone mets. (d) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's acute myelogenous leukemia is related to or caused by his history of receiving radiation to treat prostate cancer? **The examiner should address the June 2020 VA medical opinion indicating that the Veteran's history of receiving radiation to treat prostate cancer is a risk factor for developing AML. A complete rationale should be provided for all proffered opinions. 2. Thereafter, readjudicate the claim on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, Associate 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.