Citation Nr: 1430162 Decision Date: 07/03/14 Archive Date: 07/10/14 DOCKET NO. 10-12 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, claimed as due to herbicide exposure. 2. Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962, from November 1968 to April 1970, from July 1971 to May 1978, and from November 1979 to January 1980. This matter comes on appeal before the Board of Veterans' Appeals (Board) from March 2009 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The Veteran provided testimony at an April 2014 travel Board hearing. The hearing transcript has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran claims that he has type II diabetes mellitus and prostate cancer due to Agent Orange exposure along the demilitarized zone in Korea and at Fort Sherman and Fort Gulick in Panama. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service connection for the asserted disorder for which such a presumption has been established will be presumed if manifested within the applicable presumptive period. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). However, regarding the Veteran's assertions of Agent Orange exposure in Panama, VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C., para 10(o), directs that the RO should ask the Veteran for the approximate dates, locations and nature of the alleged exposure and if received, to send a detailed statement of the Veteran's claimed herbicide exposure to the Compensation and Pension (C&P) Service via e- mail and a review be requested of the Department of Defense's (DoD's) inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. If sufficient information cannot be obtained from the Veteran to meet JSRRC guidelines, then the RO is to produce a formal memorandum for the file documenting efforts to obtain information, and then forward the claim for rating activity. While the RO has developed the Veteran's claim with respect to the alleged exposure to an herbicide agent along the DMZ in Korea, development has not been conducted with respect to the alleged exposure in Panama from 1971 to 1974. The Veteran has provided hearing testimony indicating that Agent Orange was sprayed at the along the airstrip at either Fort Sherman or Fort Gulick in Panama, though no specific dates or incident of exposure was identified. Nonetheless, the Board finds that in order to afford the Veteran every benefit of the doubt, the AOJ should verify the Veteran's duties and dates of service at Fort Sherman and Fort Gulick in Panama. Thereafter, the AOJ should take the necessary actions to comply with the evidentiary development procedures required by M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o). The U.S. Court of Appeals for Veterans Claims (Court) has consistently held that 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). In the event that herbicide exposure is conceded or verified, the AOJ will then need to determine whether a medical examination is required to complete adjudication of the claim. As a determination on the issues of service connection for diabetes mellitus and prostate cancer could substantially affect the TDIU claim on appeal, the Board finds that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the Board's determination as to the TDIU claim currently on appeal must be deferred. Accordingly, the case is REMANDED for the following action: 1. The AOJ should take the necessary actions to comply with the evidentiary development procedures required by M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o) with regard to the claimed herbicide exposure at Fort Sherman or Fort Gulick in Panama during the Veteran's relevant service from 1971 to 1974. 2. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. 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. 2013). _________________________________________________ K. J. Alibrando 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) (2013).