Citation Nr: 22012162 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-18 485 DATE: March 2, 2022 REMANDED Service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Air Force from August 1968 to August 1972. The Veteran died in June 2012. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. The claims file contains a copy of the hearing transcript. The appellant contends that the Veteran's exposure to herbicide agent during active-duty service at the Korean DMZ (Demilitarized Zone) caused or contributed substantially or materially to the Veteran's death. In August 2020 decision, the Board denied service connection for the cause of the Veteran's death. In pertinent part, the Board found that the weight of probative evidence of record failed to show that the Veteran's cause of death was due to a disability/disease incurred in, caused, or aggravated by, service. Discussion In August 2021, the appellant the Board's August 2020 decision to the United States Court of Appeals for Veteran's Claims (Court), which resulted in Joint Motion for Remand (JMR). The parties to the JMR found that the Board had failed to ensure that VA satisfied its statutory duty to assist to continue to try to obtain records in the possession of a government agency until "it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile." 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2). The parties indicated that VA did not make a finding that further efforts to obtain verification of the claimed herbicide exposure near the Korean DMZ would be "futile". Id. The parties also opined that the Board erred by providing an inadequate statement of reasons or bases to support its finding that the evidence of record is "insufficient to require the Secretary to provide and examination and medical opinion." Here, the parties emphasized that the Board relied upon "Agent Orange Update 2002" and "Update 2008" (VAO) which address presumptive service connection for the Veteran's terminal diseases. The parties offered no authority for this statement, and the reports including periodic updates are medical research evidence that address the potential causes of disease by herbicide without regard to how adjudicative agencies choose to use them. The parties also found that the Board failed to address the issue of "direct causation" (as to herbicide exposure at the Korean DMZ) ignoring the Board's reasons and bases on page 11 of the decision. Nevertheless the parties concluded that the Board erred to the extent that it relied upon the VAO reports to find that a VA medical opinion was not warranted on the basis of direct service connection for AML. As VA has not satisfied it statutory duty under 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2), the issue of whether a VA examination is warranted must be deferred until there is a determination made that it is reasonably certain that such records (memorializing the Veteran's service at the Korea DMZ) do not exist or that further efforts to obtain these records would be futile. Such records, should they exist, might well bear upon clinical findings in a subsequent VA examination . The matters are REMANDED for the following actions: 1. Take all efforts to obtain Federal department or agency records concerning the Veteran's possible herbicide exposure at the Korean DMZ during his active-duty service with the 51st Civ. Eng. Sq. at Osan Air Base in Korea or with the "Red Horse, Prime Beef Team". Specifically, the RO must contact alternative sources to the now disestablished Joint Services Records Research (JSRRC) such as the National Archives, the U.S Air Force Office of the Historian, or other U.S. Air Force archives/repositories. Of interest is whether the Veteran's Air Force civil engineering squadron at Osan AFB (48 miles from the DMZ) had missions involving construction at the DMZ from November 1970 to December 1971. All efforts should be undertaken until any records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2). Regardless of the outcome, the RO must make a formal finding as to the efforts undertaken to obtain said medical records, with specificity. 2. Arrange for a VA opinion with an appropriate clinician. The clinician must review the entirety of the claims file and indicate such in the body of the opinion report. Upon completion of file review, the clinician must respond to the following inquiries: Whether it is at least as likely as not (50 percent or more that sepsis (18 months), typhlitis (4 days) and acute myelogenous leukemia (AML) (6 months) had onset during service or were otherwise caused or aggravated by the Veteran's active service on a direct basis, including the contended herbicide exposure? For each opinion, a complete rationale should be provided. References to medical research in including the VAO reports may be considered as medical evidence but may not be relied upon solely because a presumption of causation has not been found. The clinician should reconcile any opinion with all other clinical evidence of record and the Veteran's, the appellant's and other lay evidence. If the clinician rejects the lay reports, the clinician must provide an explanation for such rejection. If the clinician relies upon any medical treatises or other medical scholarship in rendition of the opinion, it is requested that those reference materials be so noted in the response. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.