BVA9503414 DOCKET NO. 92-23 620 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma secondary to exposure to chemical dioxins. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from August 1959 to June 1963. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a February 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, which denied the veteran's claim for entitlement to service connection for non- Hodgkin's lymphoma secondary to exposure to chemical dioxins. The issue of entitlement to service connection for a heart condition secondary to treatment for non-Hodgkin's lymphoma, raised by the appellant in his testimony before a hearing officer on January 17, 1992, has not been adjudicated by the RO. Accordingly, this "issue" is not in appellate status, and is referred to the RO for appropriate action. REMAND The veteran has argued that he was exposed to various chemical dioxins, including Agent Orange, while he was stationed aboard the U.S.S. John Hancock (CVA-19). He maintains that because of his shipboard duties, he was required to load and unload barrels of dioxins aboard the aircrafts assigned to the aircraft carrier. These planes, according to the veteran, then sprayed these chemicals while located over Southeast Asia. Additionally, he avers that during his shore duty in the Republic of the Philippines, he was repeatedly exposed to hazardous chemical agents. In 1982 the veteran was diagnosed as suffering from malignant tumors of the lymph nodes. He received treatment for said carcinoma, and in 1990 applied for VA compensation benefits. At that time, he claimed that because of his exposure to toxic substances, including chemical dioxins, he developed "non- Hodgkin's lymphoma". Although he served in the U.S. Navy prior to August 5, 1964 (the beginning date of the Vietnam War Era), he claims that 38 C.F.R. § 3.311 (1994) should be, by analogy, applied to his situation. Thus, he requests that the Board overturn the RO's previous decision, and grant him service connection for non-Hodgkin's lymphoma. The veteran has proffered records from the U.S.S. John Hancock that indicate during the time in question, the U.S.S. John Hancock was "on station" in Southeast Asia. However, these same records do not show where she sailed from and to, her mission, and the squadrons' missions that were assigned to the U.S.S. John Hancock. The records also do not show the type of materiel, i.e., chemicals, that were aboard the U.S.S. John Hancock. All of this information the Board deems as necessary prior to the issuance of a final appellate decision. Therefore, because the VA has a duty to assist the veteran in the development of facts pertinent to his claim, we find it necessary to remand this claim in order to obtain additional service department evidence. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). The record is also devoid of the veteran's proof of honorable service; i.e., a DD Form 214, Department of Defense Armed Forces Report of Transfer or Discharge. Moreover, in testimony provided by the veteran before a hearing officer at the RO, he has stated that his military occupational speciality was that of a liquid gases specialist. Yet, the RO has failed to procure the veteran's service personnel records that would substantiate his claim. The Board believes that such information is necessary in determining whether the veteran was possibly exposed to carcinogens and dioxins while in service. Thus, said information must be obtained before further adjudication of this claim. During the appeals process, the veteran has claimed that while he did not serve during the "Vietnam War Era" [August 5, 1964, through May 7, 1975], his service in Southeast Asia qualified him for inclusion in the class of plaintiffs awarded benefits under the Agent Orange Veteran Payment Program Fund. See Letter from W. Bernard Richland, Special Master for Appeals, Agent Orange Administration, United States District Court, Brooklyn, New York, February 6, 1992. Because he was included in the class of plaintiffs entitled to benefits, the veteran maintains he should also be included, by analogy, as a veteran entitled to presumptive service connection under 38 C.F.R. § 3.311 (1994). The claims folder is negative for any documents that reveal how and why the veteran was included as part of the class of plaintiffs entitled to benefits under the Agent Orange Veteran Payment Program Fund. Said documents are necessary so that the RO, and subsequently the Board, may provide the veteran with a clear explanation on why he is, or is not, entitled to VA benefits. Finally, there is no doubt that the veteran has previously suffered from a type of carcinoma of the lymph nodes. However, the record is negative for an actual diagnosis of non-Hodgkin's lymphoma - the carcinoma related to exposure to chemical dioxins. The Secretary has a duty to assist a claimant who has submitted a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Butts v. Brown, 5 Vet.App. 532 (1993); Murphy v. Derwinski, 1 Vet.App. 78 (1990); 38 C.F.R. § 3.159 (1993). "The 'duty to assist' is neither optional nor discretionary." Littke v. Derwinski, 1 Vet.App. 80 (1990). The Court has repeatedly held that the duty to assist includes obtaining relevant records from private physicians, especially where it is necessary to determine the exact disability suffered from by the veteran. Olson v. Principi, 3 Vet.App. 480 (1992). Therefore, we believe that the veteran's entire medical record showing treatment for said carcinoma should be obtained prior to further adjudication. We also think that it would be prudent for the RO to obtain any cell slides prepared at the time of the veteran's original diagnosis. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should request from the National Personnel Records Center (NPRC) copies of the veteran's service personnel records. Of particular interest are the records that show the veteran's military occupational specialty, his tour(s) of duty, and his assignments while assigned to Clark Air Force Base, the Republic of the Philippines, and stationed aboard the U.S.S. John Hancock. The RO should also request that the copy of the veteran's DD Form 214 be forwarded to the RO for inclusion in the veteran's claim folder. If no records exist, this should be so noted in the record. 2. Thereafter, the RO should contact the Department of the Navy, the Department of the Air Force, and the U.S. Army and Joint Services Environmental Support Group for the purpose of obtaining additional information. In particular, the RO should request answers to the following questions: (a) In the years 1960 through 1964, were chemical dioxins, and other toxic chemicals, stored at and/or loaded aboard aircraft located at Clark Air Force Base, the Republic of the Philippines? If so, what types of chemicals were stored and/or loaded there? Were there any reports of leaks or spills during that time? If so, what types of chemicals were they? (b) During 1962 through 1964, were chemical dioxins, and other toxic chemicals, stored aboard and/or loaded on aircraft assigned to the U.S.S. John Hancock? If so, what types of chemicals were stored aboard and/or loaded on those aircraft? Were there any reports of leaks or spills during that time? If so, what types of leaks or spills were there? Per the ship records provided by the veteran, the U.S.S. John Hancock was "on station" in Southeast Asia. However, these records fail to delineate where exactly she was located. Moreover, these records also fail to detail the types of missions carried out by the squadrons attached to the U.S.S. John Hancock. On the basis of this information, it is requested that a more detailed summary of the mission of the U.S.S. John Hancock, and her attached squadrons, be supplied. Of particular interest is whether the U.S.S. John Hancock, and her attached squadrons, participated in missions involving the spraying of chemical dioxins, or other toxic chemicals, over the sovereign territories of Cambodia, Laos, and South Vietnam. The dates of said missions, and any other pertinent data, should also be supplied to the RO. The veteran has claimed that his military occupational speciality was that of a liquid gases specialist. The RO should request additional information from the above named agencies concerning this speciality. That is, when performing the requirements of this job, what exactly would an individual do? Would the individual performing these tasks be exposed to toxic chemicals, including chemical dioxins? What precautions are taken in order to ensure that the individual performing these duties is not overexposed to said chemicals? 3. The RO should obtain from the Special Master for Appeals, Agent Orange Administration, United States District Court, Brooklyn, New York, copies of the veteran's application, and subsequent award, of benefits by the Court. The RO should request that the Court provide detailed information on its method of determining whether an individual qualified as a beneficiary under the Agent Orange Veteran Payment Program Fund. The Court should also be asked how it determined that the veteran was entitled to benefits under this fund since the veteran did not serve in the Southeast Asia theatre after August 4, 1964 - the date determined by Congress as the beginning of the Vietnam War Era. All records received should be included in the claims folder. 4. The RO should ask the veteran for the names and addresses of all physicians who have treated him for his carcinoma of the lymph nodes since 1980. Upon receiving this information, along with record release statements by the veteran, the RO should obtain and associate with the claims folder all treatment records of the veteran from such health care providers. Of interest are any progress notes, special studies, x- ray films, laboratory tests, and technicians' reports of the veteran's treatment and diagnosis. Additionally, the RO should request that any biopsy results and tissue slides made of the diseased organs be forwarded to the RO for inclusion in the claims folder. The RO should also ask each of the health care providers if a diagnosis of non-Hodgkin's lymphoma was made, the etiology of said condition, and the criteria used to make such a determination. If no records exist, it should be so noted in the record on appeal. 5. Upon receipt of all of the above requested information, the RO should schedule the veteran for a special oncological examination. The purpose of this examination is to determine whether the veteran now suffers from non-Hodgkin's lymphoma or any other type of carcinoma. All indicated special studies, including blood tests, should be accomplished and the examiner should set forth reasoning underlying the final diagnosis. The claims folder and this Remand are to be made available to the examiner for review prior to the examination. Following completion of the requested development, the veteran's claim should be readjudicated. If the decision remains unfavorable, he and his representative should be given a supplemental statement of the case and allowed sufficient time for a response. Thereafter, the claim should be returned to the Board for further consideration. No action is required of the veteran until he is contacted by the regional office. The purpose of this REMAND is to ensure due process and to obtain additional clarifying medical evidence. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).