Citation Nr: 0708445 Decision Date: 03/21/07 Archive Date: 04/09/07 DOCKET NO. 01-09 075A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for lung cancer, including secondary to Agent Orange (AO) exposure. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Estela I. Velez Pollack, Associate Counsel INTRODUCTION The veteran served on active duty from October 1964 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2001 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board of Veterans' Appeals (Board) denied the claim in August 2002. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2003, the Court vacated the Board's August 2002 decision and remanded matters to the Board. The Board remanded the case to the RO in June 2004. The Board denied the veteran's claim. In August 2006 the Court set aside the Board's decision and remanded the case for further adjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. In compliance with the Veterans Claims Assistance Act of 2000 (VCAA), the Board finds that the RO should further develop this case. In an Agent Orange exposure questionnaire received in April 1998, the veteran indicated that while working TDY at Don Muang Int'l Airport, he moved thousands of troops weekly from the jungles of Vietnam. He noted that these soldiers were unbathed, unclean, and straight from the jungle. He reported that he was thrown amongst them on the plane and that whatever they had on their clothes and whatever they had been breathing, he was also breathing. He further indicated that he had on his clothes whatever they had on their clothes. In a June 2001 letter, he reported that his job as an Air Force Sergeant was to move troops and supplies in and out of Vietnam. He noted that he moved thousands of troops and tons of supplies in and out of Vietnam. He stated that if any of the troops that he moved out of Vietnam in 1967 or 1968 had been exposed to Agent Orange then he was also directly exposed as a result of breathing the residue from dirty, straight from the jungle uniforms, and by indirectly breathing the recycled air in the closed quarters of the airplane. In an undated letter, the veteran reported that he was responsible for moving troops in and out of Vietnam to and from the staging point of Don Muang Airport. He stated that the staging points that he moved troops to and from were DaNang, Nahtrang, Saigon, and Cameron Bay. He stated that he boarded and briefed all flights upon arrival and that the briefing took approximately 30 minutes. He stated that it was his belief that he was exposed to Agent Orange at this point. He indicated that the thousands of soldiers that he came into contact with as a result of these flights looked rugged and came directly from the jungle where they had been for months. He stated that he was exposed to whatever the soldiers had been exposed to. In a November 2001 letter, the veteran indicated that he was on the ground in November 1966 in Cam Ranh Bay and that the flight records should be checked to confirm this. In his November 2001 substantive appeal, the veteran reported that he was on the ground in the Republic of Vietnam and that he was stationed in Ubon, Thailand. Personnel records indicate that he service from November 1966 to December 1967 as an administrative specialist with the Det#5, 6thAprl Sw, DonMuangAB, Thai. They indicate that he was awarded the Vietnam Service Medal. In an April 2002 letter, the veteran indicated that he was on the ground in Vietnam several times during his tour of duty while stationed with Detachment 5, 6th Aerial Port Squadron, and that he was responsible for moving passengers and freight in and out of Vietnam. He reported that when needed he would go with a load of freight or passengers to off load or on load for a return trip. The flights were from DaNang, Cam Ranh Bay, and Saigon. The veteran also stated that he could not believe that his travel orders directing him to his duty station in Ubon, Thailand, on or around November 22, 1966, could not be found. The veteran indicated that he could remember these orders after all these years. He stated that he had stops in Hawaii, Clark AB; Camranh Bay, VN; Bangkok, Thailand, and then Ubon, Thailand. He stated that as the chartered Continental 707 banked for landing in Camranh Bay he saw multiple flashes of fire down below. He noted that it was either early morning or early evening when he landed. In June 2002, the veteran appeared before the undersigned Board Member. At the time of the hearing, the veteran indicated that all the military documents that he had had in his possession were destroyed in a fire at his parents' house about six years beforehand. The veteran's previous representative reported the landings of the plane during the veteran's flight over to Thailand in November 22, 1966, which included a stopover at Cam Ranh Bay. The veteran testified that when they landed at Cam Ranh Bay, 150 people got off the plane and headed to Vietnam, while about 15 people, including him, headed to Thailand. The veteran indicated that his responsibilities in Thailand included passenger and freight movement. He testified that he spent twelve or thirteen months in Thailand and took a flight home which required a stop in either Saigon or Cam Ranh Bay. He noted that this was a standard route for the chartered planes. There is no evidence of record that the AOJ conducted an exhaustive search to verify the information regarding the veteran's flight to Don Muang Air Base, Thailand. Furthermore, the veteran has claimed that he was exposed to AO while serving in Thailand through contact with planes and personnel who would arrive directly form Vietnam. The AOJ should attempt to verify if such exposure is possible. The AOJ must comply with the order of the Court. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake all efforts to obtain any and all information regarding flights to Don Muang Air Base, Thailand on or around November 22, 1966. The search should include, but is not limited to, requesting information from the Air Force (or other appropriate source) regarding flight manifests for November 22, 1966 and approximate dates and/or general flight routes taken during that time period from Travis AFB to Don Muang Air Base. 2. The AOJ should obtain an authoritative answer as to whether exposure to Agent Orange is possible through close contact with military personnel and equipment leaving Vietnam. (See Order of the Court.) The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2006). _________________________________________________ H. N. SCHWARTZ 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) (2006).