Citation Nr: 1453083 Decision Date: 12/03/14 Archive Date: 12/10/14 DOCKET NO. 10-14 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for Type II diabetes mellitus, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for erectile dysfunction, to include as due to exposure to Agent Orange. 3. Entitlement to service connection for upper extremity peripheral neuropathy, to include as due to exposure to Agent Orange. 4. Entitlement to service connection for lower extremity peripheral neuropathy, to include as due to exposure to Agent Orange. 5. Entitlement to service connection for heart disease, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas. The Veteran supplied testimony before the undersigned Veterans Law Judge at a video conference hearing in October 2014. The transcript has been made part of the Veteran's electronic claims file. This appeal is now being processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. 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 the five listed disorders on the title page due to Agent Orange exposure related to his service at Fort Clayton in Panama. Personnel records show he served in the canal zone from September 1968 to May 1970, with Company A, 4th Battalion, 20th Infantry. He has also claimed to have been in Vietnam for a short time (temporary duty assignment (TDY)), but this service has not been verified. 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) (2014). 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. Here, development has not been properly conducted with respect to the alleged exposure in Panama from 1968 to 1970. The Veteran has provided hearing testimony indicating that Agent Orange was sprayed in jungles near Fort Clayton, and that he participated in at least five or six training exercises, each for a period of three weeks. He added a Captain had told him herbicides had been sprayed, and he added that trees and bushes were brown, appearing as if they were dying. While the JSRRC in February 2014 issued a formal finding addressing its inability to corroborate Agent Orange or other herbicide exposure. The memorandum stated that the information required to verify Agent Orange or other herbicide exposure described by the Veteran was insufficient to send to the U.S. Army and JSRRC and/or insufficient to allow for meaningful research of Marine Corps or Archives and Records Administration (NARA) records. It was also mentioned that there was no evidence in personnel records or medical records indicating any exposure to Agent Orange or other herbicides. In this case, the pertinent procedural development concerning such claims as now before the Board on appeal as set out in VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C., para 10(o) is not shown to have been undertaken. Specifically, while the RO asked the Veteran for the approximate dates, locations and nature of the alleged exposure, and while a response was received, a detailed statement of the Veteran's claimed herbicide exposure was not sent to the Compensation and Pension (C&P) Service via e-mail so that a review could be requested of the Department of Defense's (DoD's) inventory of herbicide operations to determine whether herbicides were used or tested as alleged. The Board therefore finds that in order to afford the Veteran every benefit of the doubt, the AOJ should again verify the Veteran's duties and dates of service at Fort Clayton 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 United States 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 claims. The Board also parenthetically observes that the Veteran supplied VA internet-based documentation purporting to show the incurrence of Agent Orange spraying in the canal zone from the 1960's to the early 1970's. The source of this was "Report: U.S. Exposed Many in Panama to Agent Orange" from the August 20, 1999, edition of the San Francisco Examiner. See May 2014 VA Form 646. 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 Clayton during the Veteran's relevant service from 1968 to 1970. 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 appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN 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) (2014).