Citation Nr: 0429738 Decision Date: 11/03/04 Archive Date: 11/10/04 DOCKET NO. 03-24 550 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as due to Agent Orange exposure. WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD G. Strommen, Counsel INTRODUCTION The veteran served on active duty from December 1966 to December 1970 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision in which the RO denied the veteran's claim for service connection for diabetes mellitus. The veteran filed a notice of disagreement (NOD) in March 2003. The RO issued a statement of the case (SOC) in April 2003, and the veteran filed a substantive appeal in August 2003. In August 2004, the veteran offered testimony during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the veteran requested, and the undersigned granted, a period of 60 days following the hearing for the submission of the additional evidence. However, since the hearing, no additional evidence from the veteran has been received. For the reasons expressed below, the issue on appeal is being remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the veteran when further action, on his part, is required. REMAND The Board finds that further development of the appellant's claim for service connection for diabetes mellitus is needed. In this case, the veteran is shown, by medical evidence, to currently suffer from diabetes mellitus. He contends that his condition is the result of in-service herbicide exposure during service in Vietnam. Under pertinent legal authority, there is a presumption of Agent Orange exposure for veterans who served in Vietnam during the Vietnam Era. Moreover, diabetes mellitus, type II, is among the diseases for which the VA Secretary has determined that a positive association between the development of the disease and exposure to Agent Orange exists. See 38 C.F.R. §§ 3.307, 3.309(e) (2004). Accordingly, a rebuttable presumption of service connection arises for a veteran who service in Vietnam during the Vietnam Era who later develops Type II diabetes mellitus any time after such service. Id. Service records show that the veteran served in Thailand from October 1968 to October 1969. His service records also show that he received the Vietnam Service Medal with 4 PSS-AFM 900-3 and the Republic of Vietnam Campaign Medal-AFM 900-3. During his August 2004 Board hearing, the veteran testified at that although he was stationed, primarily, in Thailand during the pertinent time frame, he did go to Vietnam on several occasions. First, he stated that on his way to his post in Thailand in October 1968, and on his way back to the United States in October 1969, his plane landed in Vietnam. Additionally, he relayed the plane taking him to and from Bangkok where he went on rest and relaxation (R&R) landed in Vietnam; these stops were only for a few hours each. He also testified that he had more lengthy trips to Vietnam on two occasions when he was part of a group that went to Vietnam to rescue or salvage aircraft that had crashed. He indicated that, on one occasion, he was there for 11/2 days and on another occasion, he was there for one day. In statements added to the record, the veteran notes that he was in Vietnam on these missions in late 1968 or early 1969. The veteran testified that he was in the 40th AARS out of Udorn Airfield in Thailand, and his service personnel records show that he was in the 432 FMS at Udorn. Given the veteran's assertions, and his service records, the Board finds that further action to attempt to resolve the crucial question of whether he, in fact, "served in Vietnam" is warranted. The RO should refer veteran's claim to the Center for Unit Records Research (CURR) for verification of any of his reported stops in Vietnam. The RO should provide CURR with copies of the veteran's 201 personnel file, his statements as to when he was in Vietnam, his DD 214, and his unit designation, to determine whether the veteran's service in Vietnam, as asserted, can be corroborated. On remand, the RO should also give the veteran another opportunity to present information and/or evidence pertinent to the claims, notifying him that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002). But see Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103(b)(3)) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). The RO's letter should also invite the veteran to submit all pertinent evidence in his possession. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED to the RO for the following actions: 1. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional pertinent evidence not currently of record. The RO should also invite the veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received have been associated with the claims file, or the time period for the veteran's response has expired, the RO should request that CURR to attempt to verify the veteran's presence in Vietnam between October 1968 to October 1969. The RO should ask CURR to verify the flight manifests of the veteran's flights from Travis Airforce Base in California to Udorn Airfield in Thailand from October 10 to October 22, 1968, and his flights from Udorn back to the United States in October 26, 1969. Also, the RO should provide CURR with the veteran's units while overseas, the 40th AARS and the 432 FMS, and request that CURR attempt to verify if personnel from these units went on aircraft rescue/salvage missions in Vietnam for crashed aircraft from November 1968 to March 1969. A copy of the veteran's 201 service personnel file should accompany the request to CURR, along with a copy of this REMAND. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After receiving any response from CURR, and any other information and/or evidence from any other source, the RO should adjudicate the claim on appeal in light of all pertinent evidence and legal authority. 6. If the benefits sought on appeal remain denied, the RO must furnish to the veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeal for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2000), 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) (2000).