Citation Nr: 21040594 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 12-00 070A DATE: July 8, 2021 REMANDED Entitlement to service connection for coronary artery disease (CAD), including due to herbicide exposure and/or exposure to contaminated water at Camp LeJeune, is remanded. Entitlement to service connection for left lower extremity neuropathy, including as due to herbicide exposure and/or exposure to contaminated water at Camp LeJeune, is remanded. Entitlement to service connection for diabetes mellitus, including as due to herbicide exposure and/or exposure to contaminated water at Camp LeJeune, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1959 to July 1964. He died in June 2019, during the pendency of this appeal. The Appellant is his surviving spouse, so widow. She was granted substitution by the local regional office (RO) in March 2020 correspondence allowing her to process these claims to completion. A substitute has the same rights regarding hearings, representation, appeals, and the submission of evidence as would have applied to the claimant had the claimant not died; however, a substitute may not add an issue to or expand the claim. 38 C.F.R. § 3.1010(f). During his lifetime, the Veteran contended that his CAD, left lower extremity neuropathy, and diabetes mellitus were due to herbicide exposure in Vietnam or owing to exposure to contaminated water at Camp LeJeune. VA regulations provide that, for a Veteran who has been exposed to an herbicide agent during military service, service connection for CAD, diabetes mellitus, and "early onset" peripheral neuropathy will be presumed. See 38 C.F.R. § 3.309(e). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307(a)(6)(i). It is not in dispute that the Veteran had these claimed conditions. What must be resolved, instead, is whether they were related or attributable to his military service, including to exposure to herbicides (the dioxin in Agent Orange) or contaminated water at Camp Lejeune. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Most recently, the Board remanded these claims in November 2020 to try and verify whether the Veteran was exposed to herbicides during his service, including by obtaining any outstanding service personnel records (SPRs). A preliminary review of the record since that remand shows that additional SPRs have been associated with the Veteran's claims file; however, no additional efforts were undertaken by the RO to verify whether he was exposed to herbicides during his service, including when considering any additionally obtained SPRs. A remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. See Stegall v. West, 11 Vet. App. 268 (1998). As the prior remand order was not complied with, even to what could be considered acceptable substantial compliance, and in accordance with Stegall, another remand of these claims is required. Specifically, during his lifetime, the Veteran maintained that he was exposed to herbicides while participating in military maneuvers in Japan, South Korea, and Taiwan in 1963. He also contended that he went through Vietnam as part of this same assignment. Embarkation slips in his SPRs confirm that he traveled to Japan, South Korea, and Taiwan but do not show travel to Vietnam during the same period as he contends. Nevertheless, there are procedures for verification of exposure to herbicides in locations other than the Republic of Vietnam, Thailand, or the Demilitarized Zone (DMZ) in Korea. Specifically, if a Veteran alleges exposure to herbicides in other locations, like Japan, South Korea, and Taiwan, he should be asked for the approximate dates, location, and nature of the alleged exposure. If this information is received, VA should then provide his detailed description to the Compensation Service and request a review of the Department of Defense (DoD) inventory of herbicide operations to determine whether herbicides were used as alleged. If the Compensation Service's review does not confirm that herbicides were used as alleged, and if sufficient information to permit a search by the Joint Services Records Research Center (JSRRC) has been provided, a request for verification of exposure to herbicides should be sent to that entity. There has been a regulatory amendment removing the reference to the JSRRC in 38 CFR 3.156(c)(2). The Federal Register explained that the JSRRC no longer exists, but that the military records themselves previously researched by the JSRRC remain available for research by VA as an official source of records. VBA's Office of Administrative Review (OAR) has advised that the Veterans Benefits Administration (VBA) which the RO falls under, is using an internal process to research records. If a remand directive references the JSRRC, VBA should still be able to request the records using the internal process; however, it recommended that the Board no longer specifically request for JSRRC to conduct the research. Thus, the Board will not do that. However, and nonetheless, after preliminarily reviewing the evidence of record, including notably even since the Board's prior remand, it appears the RO requested additional information from the Appellant in February 2021 about the Veteran's herbicide exposure. She did not respond and, in April 2021, the RO consequently issued a VA Form 21-0961, Administrative Formal Finding, indicating the RO (Agency of Original Jurisdiction (AOJ)) had determined that the information on claimed herbicide exposure was insufficient to move forward with a request for attempted verification of this alleged exposure. But that notwithstanding, on review of the record, the Board finds there is sufficient information to request this research as the Veteran's period of service in these locations is definite, between June 1963 and June 1964. Where a period of time identified by the Veteran is longer than the two-month period required the former JSRRC, the duty to assist requires VA to submit multiple 60-day record searches. See Gagne v. McDonald, 27 Vet. App. 397, 403 (2015). Therefore, in order to properly adjudicate this appeal, the Compensation Service and whatever resource now used in lieu of the JSRRC (that no longer exist) must research whether herbicides, including especially the dioxin in Agent Orange, and/or pesticides were used in Japan, South Korea, and Taiwan during the Veteran's military maneuvers between June 1963 and June 1964. If additional information is required, contact the Appellant and request all needed additional information in advance of making the Compensation Service inquiry. Because the claimed conditions are listed among the diseases in 38 C.F.R. § 3.309(e), if exposure to herbicides as defined by 38 C.F.R. § 3.307(a)(6) is established, the Veteran's CAD, left lower extremity neuropathy (if "early onset"), and diabetes mellitus would be presumptively associated with that exposure and accordingly determined service connected on that premise. Hence, this determination of whether he was exposed to herbicides is critical. As for the remaining claim for a TDIU, any decision concerning whether service connection is warranted for the claimed disabilities in turn will impact the disposition of this TDIU claim. So, this TDIU claim is inextricably intertwined with these other claims. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined when the adjudication of one claim could have a significant impact on the adjudication of another claim). Therefore, consideration of this TDIU claim must be deferred until resolution of these inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together to avoid piecemeal adjudication of claims with common parameters). Accordingly, these claims are REMANDED for the following still additional development and consideration: 1. Request from the Compensation Service a review of the inventory of herbicide and/or pesticide operations maintained by the DoD to determine whether herbicides were used or tested in Japan, South Korea, and Taiwan during the Veteran's service there. If exposure is not verified by the request to the Compensation Service, ask the appropriate authority to verify the presence of herbicides, including Agent Orange and/or pesticides, in Japan, South Korea, and Taiwan for the period between June 1963 and June 1964 when the Veteran reportedly was there. If additional information is required, contact the widow-appellant (since the Veteran is deceased) and request all needed additional information in advance of making the Compensation Service or other appropriate authority inquiry. 2. Make appropriate requests to the Compensation Service and any other appropriate source (since the JSRRC no longer exist) for verification of the Veteran's reported herbicide agent exposure. This includes, if necessary, submitting multiple requests using different 60-day requests intervals to cover the entire relevant service period. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA had failed in fulfilling its duty to assist in not submitting multiple requests to the JSRRC). Again, since the JSRRC no longer exist, however the RO (AOJ) now goes about doing this research must be undertaken. 3. If either the Compensation Service or whatever source now used in lieu of the JSRRC determines the Veteran was exposed to herbicides (including the dioxin in Agent Orange) during his service, readjudicate the claims in light of the presumptive provisions found in 38 C.F.R. § 3.309(e) as specifically relating to CAD, "early onset" peripheral neuropathy, and diabetes mellitus. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mukherjee 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.