BOARD OF APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 IN THE APPEAL OF PHILLIP CI CACIOPPO DOCKET NO. 09--22 365 DATE JUL 1 5 2512 On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for macroglobulinemia including as caused by exposure to herbicide REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR TI IE BOARD John Francis, Counsel IN THE APPEAL OF PHILLIP C. CACIOPPO INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. 3S U.S.C.A. 7107(a)(2) (West 2002). The Veteran served on active duty from July 1967 to March 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (R0). The Veteran testified before the Board sitting in Washington, D.C. in May 2012. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal The appeal is REMANDED to the R0 via the Appeals Management Center (AMC) in Washington, D.C. REMAND The Veteran served as a US. Air Force communications systems maintenance technician including service at U-Tapao Royal Thai Air Force Base (RTAFB) from November 1969 to November 1970. There is credible medical evidence of record that the Veteran was diagnosed with Waldenstrom's macroglobulinemia in April 2007 and that the disease is a rare form of non-Hodgkin's The Veteran contends that his disease was caused by exposure to herbicides used to defoliate areas on the perimeter of the RTAFB. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide .2. IN THE APPEAL OF PHILLIP C. agents Agent Orange) during such service, absent affirmative evidence to the contrary. The designated herbicide agents are those that were used in support of US. and allied military operations in the Republic of Vietnam that contained chemicals 2,4--dichlorophenoxyacetic acid and 2, 4, 5 trichlorophenoxyacem'c acid audits contaminant cacodylic acid; and picloram. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 1116(f) (West 2002); 38 C.F.K (2011). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases are associated with herbicide exposure for purposes of the presumption include non-Ilodgkin's 38 U.S.C.A. 1116(a)(2); 38 Further, service connection for non-Hodgkin's is presumed for any veteran diagnosed with the disease who served in Vietnam or off-shore in naval vessels without regard to exposure to herbicide. 38 3.313 (2011). In this case, the Veteran does not contend nor does the record show that he served or visited Vietnam Even if a veteran is not entitled to presumptive service connection for a disease including as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed afier service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the March 2008 initial decision on the claim, the R0 denied service connection because a presumption was not available as the Veteran did not serve in Vietnam. In an April 2009 statement of the case and a July 2011 supplemental statement of the case, the R0 reviewed additional evidence and concluded that as a communications technician, the Veteran was not exposed to herbicide because of his duties. IN THE APPEAL OF PHILLIP C. CACIOPPO Concurrent with a hearing at the R0 in April 2010 and in August 20l0, the Veteran presented extensive research and argument that the designated herbicide agents were used to defoliate the perimeter of the RTAFB and that his duties required him to live in barracks, drive through areas in open vehicles, and work in communications buildings in the defoliated perimeter areas, He further reported that he underwent one week of training as a member of an augmentation security force. The materials included an opinion from a private oncologist that Agent Orange and other defoliants of its type can cause an increased risk for the Veteran's form of indolent non-Hodgkin's and were a very strong likelihood in his case The materials also included copies of military awards to aircrafi crews operating from Thailand on herbicide dispersal missions, lay statements of veterans reporting the sighting of characteristic drums of the designated herbicide, rules of engagement and authorization procedures for the use of herbicide, and necropsy studies of military working dogs who served in Thailand. The Veteran provided additional consistent testimony at a May 2012 Board hearing In May 2010, the VA Compensation and Pension Service Service) published a bulletin with additional information and procedures for the adjudication of claims involving exposure to herbicide in Thailand and Korea. The Service noted that it had received from the Department of Defense (DOD) and reviewed several unidentified monographs and a Project CI-IECO report regarding the use of herbicides in Thailand. In the applicable section of the Adjudication Procedures Manual, the Service provided instructions that if a Veteran served in Thailand during the Vietnam era at a RTAFB (including U-Tapao) with duties near the base perimeter, VA should concede exposure to herbicide on a direct/facts- found basis, Verification of such exposure, if necessary, must be obtained from the Joint Services Records Research Center. IV,ii,2.C.lO.qq. In November and December 2010. the R0 sought infon-nation from the Defense Personnel Records Information Retrieval System and the Joint Service Records Research Center. These sources reported that research could not confirm that herbicides were used at U-Tapao RTAFB or that the Veteran performed security-related or any duties on the base perimeter. It is not clear whether these research service organizations reviewed any of the materials provided by the Veteran. IN THE APPEAL OF PHILLIP C, CACIOPPO In the May 2010 bulletin and the revised Adjudication Procedures Manual, the Service also required that a copy of a "Memorandum for Record" be included in the Veteran's claims file. The Memorandm'n discussed the DOD monograms and reports with the following definitions and findings. DOD distinguished between "tactical herbicides such as Agent Orange" and "commercial herbicides" approved by the Armed Forces Pest Control Board (AFBCB) (now Armed Forces Pest Management Board). DOD reported that tactical herbicides were not used or stored in Thailand with the exception of a 1964 test at an army base and that aerial spraying aircrafl were based in Vietnam and not in Thailand. DOD did acknowledge that commercial herbicides approved by the AFBCB were used for vegetation control on base perimeters. Further, VA published on its Public Health web site an announcement that VA determined that herbicides used on the perimeter of Thai bases "may have been tactical and procured from Vietnam or a strong, commercial type resembling tactical herbicides" (last visited Jun 7, 2012). Although not cited by the Service, one source of information appears to be a December 2006 report by Dr, A.L. Young, The History of the US Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides. In his materials, the Veteran cited this report and provided rebuttal to the author's declarations and conclusions The Board has reviewed the entire report and all the materials submitted by the Veteran in support of his claim. The Board acknowledges the Veteran's contention that a distinction between tactical and commercial herbicides did not exist in records published during the Vietnam era. The dispositive and unresolved issue is whether on a facts found basis the Veteran was exposed to the designated herbicide agents either as tactical herbicides (Agent Orange and other formulations) or as components of commercial herbicides approved for use by the AFPCE. Further, if commercial herbicides did not contain the designated compounds or contaminants, a medical opinion is necessary to determine whether the Veteran's non-Hodgkin's was caused by the commercial herbicides in a manner of exposure reported by the Veteran. IN THE APPEAL OF -- PHILLIP C. CACIOPPO Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. 10.900(c) (2011). Expedited handling is requested.) 1, Request from the Compensation and Pension Service complete copies of the official Department of Defense monographs and reports that were reviewed in preparation of the Memorandum for Record 7 Herbicide Use in Thailand Associate all written material received with the claims file and provide copies to the Veteran and his representative. 2. Request from the Armed Forces Pest Management Board, U.S. Army Garrison-- Forest Glen, 2460 Linden Lane, Building 172, Silver Spring, MD 20910, information on the names, chemical composition, and method of dispersion of herbicide agents approved, available, and likely used on the perimeter of Air Force Bases in Thailand in 1969-1970. Request that the AFPMB provide infon-nation to answer the following questions: a Did any herbicides approved, available, and likely used on the perimeter of Air Force bases in Thailand in l969-1970 contain chemicals 2,4- dichlorophcnoxyacetic acid and 2, 4, 5 trichlorophenoxyacettic acid and its contaminant cacodylic acid; or picloram'? b. if these herbicides did not contain the chemical agents noted in part a, what chemical compounds were present in the approved, available, and likely used herbicides? IN THE APPEAL OF PHILLIP C. CACIOPPO c, In view of the characteristics, method of application, and persistence of these herbicides, are individuals who move through or work near applied areas (but do not participate in spraying or dispersal) exposed to the component chemicals such that the compounds are inhaled, ingested, or in contact with the skin? d. Did these herbicides contain compounds now known to cause or increase risk for any form of acute or chronic disease, particularly non-Hodgkin's 3. If and only if information is obtained that herbicides identified by the AFPMB did not contain the agents designated for presumptive service connection purposes and the was not able to provide information on the causes or increased risk of disease, then provide the claims file to an appropriately qualified VA physician with knowledge and experience in the etiology of non- Hodgkin's Request that the physician review the claims file including information on the chemical composition of herbicides reported by the AFPMB. Request that the physician provide an opinion to a reasonable degree of medical certainty whether the herbicides identified by the AFPMB resulting in exposure to individuals moving or working in a treated area cause or increase the risk for non-Hodgkin's 4. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate lhe claim for service connection for Waldenstrom's macroglobulinemia, If any benefit IN THE APPEAL OF PHILLIP C. CACIOPPO sought remains denied, the R0 should issue an appropriate supplemental statement of the case and provide the appellant and her representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to assist the appellant with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutrcherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim is both critical and appreciated. 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 he handled in an expeditious manner. 38 U.S.C.A. 510913, 7112 (West 2002 Supp. 2010). X. - DENNIS F. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. 7252 (West 2002), only a decision ofthe Board ofVeterans' Appeals is appealable to the United States Court of Appeals for Veterans Claimst This remand is in the nature of a preliminary order and does not constitute a decision ofthe Board on the merits ofyour appeal. 38 C.F.R.