Citation Nr: 0333331 Decision Date: 11/28/03 Archive Date: 12/10/03 DOCKET NO. 02-04 965A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for Hodgkin's disease as secondary to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The veteran served on active duty from May 1968 to May 1972. His claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. REMAND The veteran was diagnosed with Hodgkin's disease in June 2000. He claims this disease was caused by exposure to herbicides while stationed in Thailand. Unfortunately, additional action by the RO is necessary before the Board can adjudicate this claim. The Board notes that important procedural aspects of the law for veterans claiming compensation benefits have changed during the course of this appeal. On November 9, 2000, the Veterans Claims Assistance Act of 2000 ("VCAA") was enacted. Pub. L. No. 106-475, 114 Stat. 2096 (2000); see 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA created 38 U.S.C.A. § 5103A, which codifies VA's duty to assist and essentially provides that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. See 38 C.F.R. § 3.159 (2003). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2003). In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e) (2003), shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2003). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Hodgkin's disease is among the diseases listed at 38 C.F.R. § 3.309(e). In this case, the veteran is not entitled to presumptive service connection because he never served in Vietnam during the Vietnam era. Instead, he claims that he was exposed to herbicides while stationed at the Royal Thai Air Force Bases in Korat, Thailand from 1970 to 1971. He maintains that he worked as an inventory specialist and he was responsible for maintaining a certain quantity of herbicides that were being used in Vietnam. He also alleges that herbicides were being sprayed around the perimeter of the base. In support of the veteran's claim, D.S. submitted a statement confirming that herbicides were being stored at the Air Force Based in Korat. D.S. explained that he and the veteran were assigned to the base supply system and that their duties included counting and inspecting barrels containing chemicals which had arrived from supply depots in Vietnam. According to D.S., leaking chemical from some of the barrels was carried over the storage area and looked like a greasy tar pit. D.S. maintained that he and the veteran were exposed to these chemicals on their skin, in their food, and from the air they breathed. When the shelf life had expired, the chemicals were transported to an open pit and burned under the veteran's supervision. Unfortunately, there is no presumption of exposure to herbicide agents in Thailand. However, in light of the statements provided by the veteran and D.S. concerning the use and storage of herbicides at the Air Force Base in Korat, Thailand, VA should attempt to obtain confirmation from appropriate sources. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should contact the U.S. Armed Services Center for Research of Unit Records (USASCRUR), or any other appropriate agency that may be indicated, to determine whether herbicides were being stored or used at, or in the vicinity of, the Korat Air Force base. The information concerning dates, unit names, and other relevant information contained in the veteran's personnel records should be provided. The USASCRUR should be requested to provide any information that would tend to confirm or deny the storage/use of herbicides at the Royal Thai Air Force Base in Korat, Thailand from 1971 to 1972. If USASCRUR responds with a request for additional information or with suggestions of other agencies that should be contacted, the RO should follow up on these responses. Any negative reply should be documented in the claims folder. 2. When the development requested has been completed, the case should be readjudicated by the RO in accordance with all governing legal criteria, including the VCAA. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. If the benefit sought is not granted, the veteran and his representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the appellant until he is notified. This claim must be afforded expeditious treatment by the RO. 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. _________________________________________________ WARREN W. RICE, JR. 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) (2003).