Citation Nr: 1235530 Decision Date: 10/15/12 Archive Date: 10/23/12 DOCKET NO. 09-49 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for type 2 diabetes mellitus, to include as due to exposure to Agent Orange in service. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1967, with subsequent membership in the U.S. Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied the benefit sought. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development of the evidence is required before addressing the merits of the issue of entitlement to service connection for type 2 diabetes mellitus, to include as due to exposure to Agent Orange. The Veteran claims service connection for diabetes mellitus as due to Agent Orange exposure during service while serving in Korea or Fort Ord, California, or while in the Army Reserves on active duty at Anderson Air Force Base, Guam. If a veteran was exposed to an herbicide agent during active military service, certain diseases including type 2 diabetes mellitus, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served during active military service in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including the herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. In this case, the record does not reflect, and the Veteran has not asserted, that he had any service in the Republic of Vietnam during the Vietnam Era, so as to rely on this presumption of exposure to herbicides in service. Nonetheless, the claim must still be reviewed to determine if service connection can be established on a basis without benefit of that presumption of exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the Veteran's application for benefits claiming service connection for type 2 diabetes mellitus, he reported he was exposed to Agent Orange while stationed in Korea from 1965 to 1966. His service personnel records show that he served in Korea from June 1965 to June 1966 as part of Battery C, 1st Battalion, 79th Artillery. Following procedures of VA's Adjudication Procedure Manual, M21-1MR, the RO received responses from Compensation and Pension (C&P) Service (via e-mail from VAVBAWAS/CO/211/AGENTORANGE) and later from the U.S. Army and Joint Services Records Research Center (USASCRUR). They concluded in effect that the histories of the Veteran's unit, Battery C, 1st Battalion, 79th Artillery, did not document or mention Agent Orange or that the unit was in the vicinity of any herbicide spray operations, and generally that herbicides were used in Korea only between 1967 and 1969. Most recently, at a September 2011 Travel Board hearing before the undersigned Veterans Law Judge, the Veteran testified that he was exposed to herbicides/Agent Orange that was sprayed while he was stationed at Fort Ord, California, and while he was participating in active duty drills at Anderson Air Force Base in Guam. Service personnel records indicate that the Veteran served between July 1966 and November 1966 with the 4th Battalion, 41st Infantry, at Fort Ord, California. Army Reserves treatment records indicate that the Veteran was in the U.S. Army Reserves in the 411th Engineer Battalion and that he was located at Anderson Air Force Base in Guam between November 1978 and July 1979. Notably, the Veteran has submitted a letter from the Department of the Army, dated in December 1980, noting that the Pest Control Shop at Fort Ord had monthly records dating back to January 1973 of all herbicides used on that installation, and that 2-4-5 T and 2-4 D usage was included in the records. VA has developed specific procedures to determine whether a veteran was exposed to herbicides if such herbicide exposure is claimed to have occurred in a vicinity other that the Republic of Vietnam, the demilitarized zone (DMZ) in Korea, or Thailand. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(n) directs that the Veteran should be asked to provide the approximate dates, locations, and nature of the alleged exposure. The paragraph further directs that if the Veteran provides such information, then the Veteran's detailed description of the exposure should be furnished to the Compensation and Pension (C&P) Service via e-mail at VAVBAWAS/CO/211- /AGENTORANGE, and request that they review the Department of Defense's (DOD's) inventory of herbicides operations to determine whether herbicide were used as alleged. The paragraph further directs that if C&P's review confirms that herbicides were used as alleged, then determine whether service connection is otherwise in order. But if that review does not confirm that herbicides were used as alleged, in other words that the exposure is not verified by the C&P Service's review, then the RO is to submit a request to the U.S. Army and Joint Services Records Research Center (JSRRC or USASRRC) for their verification of the Veteran's exposure to herbicides as alleged. With respect to the claimed exposure to herbicides at Fort Ord, California, and at Anderson Air Force Base in Guam, review of the claims file reflects that the RO has not applied the procedure for verification of exposure to herbicides as directed by M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(n). Evidentiary development procedures provided in the Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty-to-assist requirement when it failed to remand the case for compliance with the evidentiary development called for by M21-1). As such, the Board finds that the RO must develop the claim in a manner consistent with the above provisions. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2011) that includes an explanation as to the information or evidence needed to establish a claim for service connection for a disability based on Agent Orange exposure, and the procedures to address claims based on asserted exposure in Korea and other locations outside of Vietnam. 2. Consistent with the M21-1MR manual provisions for verifying exposure to herbicides in locations other than Vietnam or along the Demilitarized Zone in Korea, follow all mandated provisions not yet accomplished to attempt to verify the Veteran's exposure to herbicides as alleged, while serving at Fort Ord, California, and while on active duty in the Army Reserves at Anderson Air Force Base in Guam, including the following actions. Contact the Veteran and request that he submit detailed information pertaining to the approximate dates, locations, and the nature of any incidents resulting in his exposure to herbicides; including all such information regarding his exposure at Fort Ord, California, and in Guam. After obtaining information from the Veteran, compile all of the information into a detailed description as to the approximate dates, location, and nature of the Veteran's alleged exposure, including exposure (1) during service in the 4th Battalion, 41st Infantry at Fort Ord, California, from July 1966 to November 1966, and (2) while participating on active duty in the U.S. Army Reserves in the 411th Engineer Battalion at Anderson Air Force Base in Guam, from November 1978 to July 1979. Then send the detailed description of the asserted exposures to the C&P Service via email at VAVBAWAS/CO/211/AGENTORANGE (Agent Orange Mailbox), and request a review of Department of Defense inventory of herbicide operations in order to determine whether herbicides were used as alleged at Fort Ord, California, and at Anderson Air Force Base in Guam. If the response from the Agent Orange Mailbox inquiry confirms that herbicides were used as alleged, then the RO must determine whether service connection is otherwise in order. If confirmation is not obtained, the RO must then send an inquiry to the JSRRC for verification of herbicide exposure from non-tactical use on the base at Fort Ord, California, and at Anderson Air Force Base in Guam as alleged. 3. Readjudicate the Veteran's claim for service connection for type 2 diabetes mellitus, including as due to exposure to Agent Orange. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the appellant an opportunity to respond. Then the case should be returned to the Board for further appellate consideration. 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). 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. 2011). _________________________________________________ C. CRAWFORD 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) (2011).