Citation Nr: 1012481 Decision Date: 04/02/10 Archive Date: 04/14/10 DOCKET NO. 09-00 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to January 1962, with subsequent service in the Army National Guard (ANG) from January 1962 to July 1985, including periods of active duty training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied service connection for diabetes mellitus. The Veteran requested a Board hearing in Washington, D.C., but subsequently cancelled this request. 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. REMAND An August 1997 VA general medical examination report and subsequent treatment notes indicate that the Veteran has been diagnosed with diabetes mellitus. The Veteran claims that his diabetes is due to exposure to Agent Orange. Veterans who served in Vietnam are presumed to have been exposed to Agent Orange and entitled to service connection for diabetes on a presumptive basis. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. However, the Veteran did not serve in Vietnam, and is therefore not presumed to have been exposed to Agent Orange. Even if a Veteran is found not entitled to a regulatory presumption of service connection however, his claim must still be reviewed to determine if service connection can otherwise be established. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.304(d) (2009) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In this case, the Veteran claims that his diabetes results from exposure to Agent Orange sprayed at Fort Chaffee, Arkansas for seven days between May and August 1967, such spraying having been confirmed by a Department of Defense report on herbicide use outside of Vietnam. While the Veteran was not at Fort Chaffee at that time, the service records reflect that he was on ACDUTRA at Fort Chaffee from June 22 to July 8, 1978. The Veteran also submitted internet and other materials reflecting that dioxin, a byproduct of Agent Orange, remains in soils, foods, human blood, and human breast milk in adults and children inhabiting areas in close proximity to a former U.S. Military installation in Vietnam. See Hatfield Consultants Ltd., Agent Orange: An Overview, at 3. The Veteran has established that Agent Orange was sprayed for several days at a location where he served on ACDUTRA eleven years later. This does not establish that he was exposed to Agent Orange, but the materials that the Veteran submitted reflect that his claim that he was exposed to Agent Orange is not inherently incredible or that his claim clearly lacks merit. Therefore, VA's duty to assist him in obtaining evidence, including an opinion where it is necessary to substantiate the claim, is applicable. See 38 C.F.R. § 3.159(d)(2) (2009). VA's Adjudication Manual Rewrite lists specific steps that the RO must take when a Veteran provides information indicating that he may have been exposed to herbicides in locations other than Vietnam. See VA M21-1 Manual Rewrite, Part IV, subpart ii, Chapter 10n. One of those steps, which the RO commendably followed, was to request an opinion from VA's C&P Policy Staff. The requested opinion was provided via e-mail in November 2008. The policy staff member opined that there was no evidence that any trace of the herbicides tested for 6 days in 1967 eleven years before the Veteran spent two weeks there remained anywhere in the environment that would have exposed the Veteran. He also noted, however, that, although he could not provide any evidence to support the claim, the RO should follow the additional procedures outlined in the Manual Rewrite unless the claim is inherently incredible or clearly lacks merit. As indicated by the policy staff member, where, as here, the Veteran has provided sufficient information to permit a search by the U.S. Army and Joint Services Records Research Center (JSRRC), the RO should send a request to JSRRC for any information that they could provide to corroborate the Veteran's claimed exposure. In this case, the request should ask where the Agent Orange was sprayed, the length of time that Agent Orange or its byproducts could be expected to remain in such area, and whether an individual on ACDUTRA would have been in an area where the Agent Orange was sprayed and/or would have remained. If JSRRC responds that it is possible that the Veteran was exposed to Agent Orange or its byproducts, then an opinion should be requested from a VA physician with sufficiently specialized knowledge to opine as to the effects of Agent Orange as to whether it is at least as likely as not that the Veteran's current diabetes is related to exposure in 1978 from Agent Orange sprayed in 1967. Accordingly, the case is REMANDED for the following action: 1. Request from the Veteran any additional information regarding his two weeks of ACDUTRA at Fort Chaffee in 1978, including where at Fort Chaffee he performed his duties. 2. Request from JSRRC any information that they could provide to corroborate the Veteran's claimed exposure, to include where at Fort Chaffee Agent Orange was sprayed in 1967, the length of time that Agent Orange or its byproducts could be expected to remain in such area, and whether an individual such as the Veteran on ACDUTRA would have been in an area where the Agent Orange was sprayed and/or would have remained. 3. If JSRRC's response indicates that it is possible the Veteran was exposed to Agent Orange or its byproducts, request an opinion from a VA physician with specialized knowledge as to the effects of Agent Orange. The claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's diabetes is related to Agent Orange exposure. The physician should consider how long Agent Orange or its byproducts would remain if sprayed for seven days in 1967 and whether the Veteran's duties in 1978 could have exposed him to Agent Orange or its byproducts. A complete rationale should accompany any opinion provided. The Veteran 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. 2009). _________________________________________________ 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 the appeal. 38 C.F.R. § 20.1100(b) (2009).