The Appellant and her son and daughter
ATTORNEY FOR THE BOARD
P. Childers, Counsel
INTRODUCTION
The Veteran served on active duty from April 1962 to April 1965. He died in April 2005. The appellant is his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to service connection for cause of the Veteran's death, entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318, and entitlement to accrued benefits.
In January 2009, the appellant and her son and daughter, accompanied by the appellant's representative, testified before the undersigned Veterans Law Judge at a Travel Board hearing in Waco, Texas. A transcript of that hearing is in the claims file.
In a decision in April 2010, the Board denied the claim of entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318; and remanded the issue of entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to Agent Orange, ionizing radiation, and asbestos for further procedural development; namely, provision to the appellant of notice in accordance with Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The requested notice was sent in August 2010, so no further action to ensure compliance with the Board's remand directives is required. (Stegall v. West, 11 Vet. App. 268 (1998). However, review of the record reveals that additional evidentiary development is warranted.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required.
REMAND
In 1965 the Veteran separated from the U.S. Army after three years of active duty service. In or around February 2005 he was diagnosed with metastatic pancreatic carcinoma, and in March 2005 he filed for service connection for pancreatic cancer on the grounds that he was exposed to electronic radiation from Hercules Missile Radar, and to ionizing radiation from Hercules Missile warheads. In correspondence in April 2005 he reported that he worked around nuclear warheads in the performance of his military duties, and was required to wear film badges at the launching site. He stated that he was an expert Missileman and could do all types of tests, including nuclear and conventional; and added that nuclear and conventional warheads were armed, ready, and tested daily during the Cuban Missile Crisis. He also wrote that he may have been exposed to radiation as a first responder at the scene of a helicopter crash on Fort Wolters, which he said was carrying top secret radar and frequency testing equipment for nuclear devices. In addition to the foregoing he noted that the buildings at Fort Wolters were built with asbestos, and stated that asbestos had been proven to cause cancer.
In April 2005 the Veteran died from his recently diagnosed pancreatic cancer (before his claim for service connection was resolved), and in May 2005 the appellant filed for DIC benefits.
In a rating decision in June 2005, the RO denied the appellant's claim for DIC. In so doing the RO noted that the Veteran's pending claim for service connection was also denied. The appellant appealed the denial of her claim for DIC benefits.
In November 2005 a military buddy wrote that the Veteran was present when a defoliant was sprayed near the Integrated Fire Control station on Fort Wolters during the summer of 1964.
During a January 2008 Travel Board hearing the appellant asserted that the Veteran's pancreatic cancer may have been caused by exposure to radiation, herbicides, and asbestos during his service.
The Veteran's DD-214 confirms that he was assigned to the 4th Missile battalion, 562 Artillery, USARADCOM; that he had successfully completed CBR (Chemical, Biological and Radiological) training; and that he was authorized to wear, among other decorations, a Marksman Badge with Missile Bar (IFC (Integrated Fire Control)) and a 1st Class Missile Man (Herc) Badge. The evidence of record also includes two Letters of Commendation dated in June 1964 relating to the Veteran's first responder actions on the scene of a helicopter crash at Fort Wolters, Texas, on April 14, 1964.
An April 2005 Personnel Information Exchange System (PIES) request by the RO for a DD-1141 was unsuccessful, as was a June 2006 request by the RO to the U.S. Army Aviation and Missile Command for its record of the Veteran's exposure to ionizing radiation; and the claims file has been documented accordingly. However, as there is uncontroverted evidence that the Veteran worked in close proximity to missiles throughout his military service, additional efforts should be taken to ascertain whether he was exposed to ionizing radiation during service. See 38 C.F.R. §§ 3.309(d)(3)(E) and 3.311(a)(2)(iii). Remand in accordance with 38 C.F.R. § 3.159(c)(2) for the Veteran's complete Official Military Personnel File is therefore warranted. A written request for a record of the Veteran's occupational exposure to radiation should also be sent to the Commander at the U.S. Army Medical Command at Ft. Sam Houston. See M21-1MR, Part IV, Subpart ii, 1.C.9.e.
In addition to the foregoing, in a letter in January 2009 a VA physician stated that the Veteran's pancreatic cancer could be related to exposure to radiation, and exposure to Agent Orange; and in November 2010 the appellant submitted excerpts from an August 1993 PRELIMINARY ASSESSMENT REPORT FOR FORT JACOB F. WOLTERS, compiled by Applied Geosciences and Environmental Management Section for the National Guard Bureau, Army Directorate in Aberdeen, Maryland, which stated that herbicides had been used on Fort Wolters to maintain vegetation free areas around the perimeters, primarily for fire control. The report also noted that asbestos had been used, during the years when Fort Wolters was constructed, as building/equipment insulation material, and as a component of some construction materials, including floor and ceiling tiles and wall siding.
38 U.S.C.A. § 5103A(a) provides that the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefits under a law administered by the Secretary.
Although pancreatic cancer is not listed as one of the presumptive diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e), a claimant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As there is medical evidence in this case of a nexus between pancreatic cancer and Agent Orange, efforts should be undertaken to corroborate the appellant's allegation that the Veteran was exposed to herbicides during service. 38 U.S.C.A. § 5103A(a). An opinion should then be obtained as to whether the Veteran's pancreatic cancer was incurred during service, or is related to some incident of his service, such as Agent Orange exposure, if confirmed. Id.
Additionally, as the appellant alleges that the Veteran's pancreatic cancer may have been secondary to asbestos exposure during service and has presented prima facie evidence of asbestos on Fort Wolters, and inasmuch as the matter is already being sent for a medical opinion on causation, this theory of entitlement should also be addressed.
Finally, in argument and evidence submitted in July 2012, the appellant's representative suggested that there may be a link between the Veteran's obesity and his development of pancreatic cancer. As service treatment records do in fact confirm that the Veteran struggled with exogenous obesity during service, this alternative theory of causation should be addressed by the VA examiner on remand.
Accordingly, the case is REMANDED for the following action:
1. Request the Veteran's Official Military Personnel File and associate these records with the claims file.
To the extent that the request for these records is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and her representative should also be informed of the negative results, and be given the opportunity to submit the Veteran's service personnel records.
2. Send a written request for a record of the Veteran's occupational exposure to radiation to the Commander, U.S. Army Medical Command, Attn: MCPO-SA, 2748 Worth Road, Suite 25, Ft. Sam Houston, TX 78234-6025.
3. Contact the appropriate agency/official for corroboration of the witness's report that herbicides were sprayed on Fort Jacob F. Wolters in 1964, in the field in front of the Integrated Fire Control (IFC) area, in order to provide an emergency landing field for the Helicopter Warrant Officer candidates.
4. Contact the appropriate U.S. Army official for verification as to whether asbestos was used in the construction of buildings, and manufacture of equipment, located at Fort Jacob F. Wolters from 1962 to 1965; especially, as regards the IFC facility(s) and equipment, and housing on Fort Wolters.
5. After completion of Action # 2, if a negative response is received, review the Veteran's Official Military Personnel File to see if it contains a DD-1141 and/or some other proof (such as the Veteran's wearing of film badges) of radiation exposure; make an official finding; and document the claims file accordingly. Then, notify the appellant and her representative regarding this finding.
6. After completion of steps 1, 2, and 5, if evidence of radiation exposure is found, get a dose estimate.
7. After completion of steps 1 through 6, send the claims file and a copy of this remand for review by a VA Compensation and Pension examiner. Following a thorough review of the claims file, the examiner must provide an opinion on the following questions:
(a) whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's pancreatic cancer was incurred during active duty service; or, if it was not incurred in service, whether it is related to some incident of active duty service, such as exposure to ionizing radiation, or exposure to herbicides/Agent Orange, if either such occurrence is determined by the AMC/RO to be confirmed.
(b) whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's pancreatic cancer is related to exposure to asbestos from 1962 to 1965.
(c) whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's pancreatic cancer is related to his weight during service.
The examiner must review and discuss the Veteran's complete medical history and provide a complete rationale in support of each opinion.
8. Then, readjudicate the appellant's claims of service connection for the cause of the Veteran's death and entitlement to accrued benefits. If the claim remains denied, issue a Supplemental Statement of the Case, which addresses all evidence associated with the claims file since the last Supplemental Statement of the Case, as well as all relevant law. An appropriate period of time should be allowed for response.
No action is required by the appellant until she receives further notice; however, she may present additional evidence or argument upon her own volition while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).