Citation Nr: 0810915 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 04-32 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for type II diabetes mellitus, claimed as a result of herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from November 1962 to November 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio. The veteran testified at a personal hearing before a Decision Review Officer (DRO) sitting at the RO in February 2004 and a video-conference hearing before the undersigned Veterans Law Judge in December 2006; transcripts of both hearings are associated with the claims file. In February 2007, the Board denied entitlement to type II diabetes mellitus, claimed as a result of herbicide exposure. The veteran subsequently appealed to the Court of Appeals for Veterans Claims (Court). In a December 2007 Joint Motion for Remand, which was granted by Order of the Court in December 2007, the parties (the Secretary of VA and the veteran) determined that a remand was warranted. The Court issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), that reversed a decision of the Board which denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagrees with the Court's decision in Haas and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans' Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. See BVA Chairman's Memorandum No. 01-06-24. The veteran is not in receipt of the Vietnam Service Medal, nor does he contend that he ever set foot in the Republic of Vietnam or served aboard a ship in close proximity to the land mass of the Republic of Vietnam. Thus, the veteran's claim is not governed by the Haas decision, and hence, is not subject to the stay. 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 veteran asserts that he was exposed to Agent Orange during service and is therefore entitled to service connection for type II diabetes mellitus on a presumptive basis. However, as noted in the Introduction above, the evidence does not show, nor does the veteran contend, that he ever set foot in the Republic of Vietnam or served aboard a ship in close proximity to the land mass of the Republic of Vietnam. As such, exposure to Agent Orange cannot be presumed. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii), 3.313(a) (2007); see also Haas v. Nicholson, 20 Vet. App. 257 (2006), appeal docketed, No. 07- 7037 (Fed. Cir. Nov. 8, 2006). The veteran contends that he was exposed to Agent Orange while serving temporary duty (TDY) on an island off the coast of Vietnam and when he emptied containers of Agent Orange in Okinawa, Japan. More specifically, he has presented evidence, including lay testimony and buddy statements, that a number of Conex shipping containers were delivered to his unit's warehouse in Sukiran, Okinawa (from a dock in Naha, Okinawa) to be used for storage of radio equipment and other gear. When these containers were opened, it was discovered that they contained a number of 55-gallon drums filled with 3 to 4 inches of liquid; naval personnel and the veteran's Staff Sergeant informed him that these drums contained herbicide. He, along with other men in his unit, dumped the contents of these drums behind the warehouse prior to cleaning them. In addition to this incident, the asserts that he was sent to the island of Hon Sao for two days to repair a radio relay station on or about March or April 1964. According to the veteran, the coast of Vietnam was within sight from Hon Sao island. See Letter to Congresswoman received at the Headquarters Department of the Army in May 2006; see also Undated Letter from the Veteran submitted on or about March 2003. With regards to the alleged Agent Orange dumping incident, the veteran testified before the undersigned that he was treated during service for skin injuries incurred when the alleged Agent Orange dumped onto the ground splashed onto his legs. Board Transcript, p.3. In support of his claim, the veteran submitted a photocopy of a Medical and Dental Appointment dated September 26, 1964, which indicates that he had an appointment with dermatology for something related to his skin during service. He has previously submitted statements that he was treated for this skin injury at Camp Kue (or Kuwae) Hospital. Unfortunately, with the exception of an Immunization Record and an October 1964 Physical Profile Record reflecting a left knee sprain, no service medical records are associated with the veteran's claims file. A May 1980 document reflects that the veteran's original claims file could not be found and, as such, his file has been rebuilt. In a case in which a veteran's service records are unavailable through no fault of his own, the Board notes that there is a heightened obligation for VA to assist him in the development of his claim. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This heightened duty includes obligation to search for alternative medical records which might verify the veteran's statements. See Moore v. Derwinski, 1 Vet. App. 401 (1991). In the present case, the veteran has submitted evidence which may corroborate his lay testimony that he was exposed to Agent Orange by showing that he incurred a skin injury from such exposure. Since clinical medical records are sometimes filed under the name of the facility, and not the veteran, there is a chance that records related to the veteran's September 1964 dermatology appointment are still available at the National Personnel Records Center (NPRC). As such, a remand is necessary to make appropriate attempts to obtain such records. The Board notes that the veteran has been service-connected for the skin disability macular hyperpigmentation of the right leg, chest, and back since June 1972. Unfortunately, because all records associated with the veteran's claims file prior to 1980 were lost, the RO rating decision explaining the basis for this grant of service connection is not available. The veteran asserts that this disability resulted from his claimed exposure to Agent Orange. Since the missing rating decision may make mention of the etiology of this disability, the Board concludes that the agency of original jurisdiction (AOJ) should specifically request that the veteran provide a copy of any records pertaining to this rating decision, if available. In addition to requesting records which may demonstrate treatment for injuries received from Agent Orange exposure, the Board finds that a remand is necessary to make all reasonable effort to verify: (1) whether the veteran served TDY on the island of Hon Sao on or about March/April 1964, and (2) whether Agent Orange was used on the island of Hon Sao during this period. Efforts to locate Morning Reports which might show TDY orders revealed no entries pertaining to the veteran. See Research Information attachment to letter from NPRC dated January 7, 1991. However, in April 1990 the veteran informed VA that he was subject to a "non-disclosure agreement" for the period from 1963 to 1964. While the document terminating the veteran's security access is of record, the "non-disclosure agreement" and the information protected by this agreement are not of record. Because this "non-disclosure agreement" might possibly make mention of the veteran's TDY to Hon Sao and/or exposure to Agent Orange while in Sukiran, Okinawa, the AOJ should attempt to obtain this "non-disclosure agreement" and any information pertaining to the agreement from the appropriate Service Department. Finally, the AOJ should conduct any development, including contacting appropriate authorities such as the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly U.S. Armed Services Center for Unit Records Research (CURR)) or Service Department to determine: (1) whether Agent Orange was used on the island of Hon Sao, and if so, when; (2) whether Agent Orange was ever shipped into or out of Okinawa (and more specifically, Naha), and if so, when; and (3) whether shipping containers used to transport Agent Orange were ever returned through Okinawa, and if so, when. Accordingly, the case is REMANDED for the following action: 1. Contact the veteran and request that he provide any information/records/letters pertaining to the rating decision which awarded service connection for macular hyperpigmentation of the right leg, chest and back in June 1972. 2. Appropriate attempts should be made to retrieve any outstanding clinical records from the Camp Kue (or Kuwae) Hospital at Okinawa, Japan for the period from March 1, 1964, through April 30, 1964. It should be noted that the veteran's clinical records may be filed at the NPRC under the name of the facility, and not the veteran. A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Make appropriate attempts to obtain a copy of the veteran's "non-disclosure agreement" that was in effect for the period from 1963 to 1964 as well as the information protected by this agreement from the appropriate Service Department. All requests and responses should be documented in the claims file. 4. Research and prepare a memo that responds to the following questions: (a) whether Agent Orange was used on the island of Hon Sao, and if so, when; (b) whether Agent Orange was ever shipped into or out of Okinawa (and more specifically, Naha), and if so, when; (c) whether shipping containers used to transport Agent Orange were ever returned through Okinawa, and if so, when. Any leads should be followed to their natural conclusion, and the AOJ's development should include contacting appropriate authorities, such as the JSRRC or Service Department. All efforts to obtain the answers to these questions should be documented in the claims file. 5. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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. 2007). _________________________________________________ MILO H. HAWLEY 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) (2007).