Citation Nr: 0533573 Decision Date: 12/13/05 Archive Date: 12/30/05 DOCKET NO. 02-15 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for diabetic atherosclerosis of both feet, secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Shereen M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1965 to December 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND Other than his argument that he served in the Republic of Vietnam on a temporary assignment, which the Board will not address at this time, the appellant has two theories as to how he was exposed to Agent Orange. The veteran's active duty service included time in Nakhon Panom, Thailand (NKP) from April 1967 to April 1968. NKP is located on the Thailand/Laos border. The veteran's personnel records confirm that he was in NKP as a security alert team leader. His first allegation is that he was directly exposed to Agent Orange - that operations into Laos and/or Vietnam were conducted from NKP, that Agent Orange was sprayed at NKP, and/or that spraying in Laos along the Ho Chi Minh trail exposed him to Agent Orange. The veteran's second allegation is that that herbicides, including Agent Orange, were sprayed in Thailand from 1964 to 1965 prior to the dates of his presence in Thailand and that these herbicides remained in the soil, exposing him to Agent Orange from 1967 to 1968. He has submitted articles concerning use of herbicides in Pran Buri and at Bo Fai Airport in Hua Hin, but those areas are not geographically proximate to NKP. However, the Department of Defense has issued a list of Agent Orange test programs outside of Vietnam that includes tests in Thailand from 1964-1965 and herbicide operations, to include Agent Orange, in Laos from December 1965 through June 1967. Please see January 2003 letter from the Assistant Secretary of Defense for Health Affairs to Dr. Susan Mather, with attached documents. Particularly relevant here is the documentation of spraying in Laos, but the records require further review to determine the actual cities of the herbicide operations and their geographic proximity to NKP. These past herbicide operations are precisely the type of incidents that can be verified by historical records. Under M21-1, Part VI, 7.20b(3): If a veteran claims exposure to herbicide agents other than in Vietnam during the Vietnam Era or in Korea as specified in 7.20b(2), ask the veteran for the approximate date(s), location and nature of exposure. After obtaining a detailed description, contact the Compensation and Pension (C&P) Service via e-mail at VAVBAWAS/CO/214A, and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If a negative response is received from the C&P Service, and the veteran furnishes sufficient details of the alleged exposure, contact CURR for verification. The veteran has provided specific details of where, when and how he was allegedly exposed, but there have been no attempts by the VA to verify the veteran's exposure to Agent Orange. Accordingly, the Board finds that attempts to verify the veteran's reported exposure to Agent Orange have been incomplete. Further attempts should be made to verify exposure. In December 2000, the veteran's private treating physician, Dr. TGD, issued a statement indicating that, "Although one cannot prove that the diabetes was caused by Agent Orange there is evidence that indeed exposure to Agent Orange leads to type II diabetes later in life." Currently there is no evidence on record whether exposure to soil sprayed with Agent Orange two years prior leads to type II diabetes later in life. If this type of remote Agent Orange exposure is verified, an examination should be offered to determine the likelihood that such exposure causes diabetes mellitus. Accordingly, the case is REMANDED for the following: 1. Tell the veteran to submit to VA copies of any evidence in his possession relevant to this claim. 2. The RO should make an attempt to verify the veteran's claimed exposure to Agent Orange during his service in Nakhon Panom (NKP), Thailand from April 1967 to April 1968, including but not limited to: * investigation into the whereabouts of herbicide use in Laos from 1965 to 1968 and the geographic proximity to NKP (See information from DoD); * investigation into the geographic locations of herbicide use in Thailand between 1964 to 1965 (See information from DoD); * investigation into whether any herbicides were used at NKP from April 1967 to April 1968 or whether any operations into Laos or Vietnam involving the use of herbicides originated from NKP or whether there is any information that herbicides were stored at NKP during this time period. The RO should contact the Compensation and Pension (C&P) Service via e-mail at VAVBAWAS/CO/214A, and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If a negative response is received from the C&P Service, the RO should contact CURR for verification. 3. If, and only if, herbicide use in or near NKP is confirmed for any time prior to the beginning of the veteran's service at that location in April 1967, then the veteran should be scheduled for a VA endocrinology examination to determine whether it is at least as likely as not that exposure to soil sprayed with Agent Orange herbicide two years or more prior to his service in Thailand caused his diabetes mellitus. The claims folder must be reviewed by the examiner. The examiner should provide a complete rationale for any opinion. It would be helpful if the physician would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The physician should provide a complete rationale for any opinion provided. 4. After completion of the above and any additional development deemed necessary, the RO should review this matter. The RO must consider all applicable laws and regulations. If the benefit sought remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The purposes of this remand are to complete the record, and to ensure due process. 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). 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, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. _________________________________________________ MICHELLE L. KANE 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) (2004).