Citation Nr: 1004637 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 07-10 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus with secondary renal disease, to include claimed as due to Agent Orange exposure. 2. Entitlement to service connection for hepatitis B with cirrhosis, status post liver transplant. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to April 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO), which denied the benefits sought on appeal. In October 2009, the Veteran testified at a travel Board hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. During the hearing, the parties agreed to hold the record open for 30 days to allow for the submission of additional evidence. Thereafter, additional evidence was received which was accompanied by a waiver. 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 With respect to both claims on appeal, additional development is required prior to appellate consideration. The Veteran claims entitlement to service connection for type II diabetes mellitus with secondary renal disease, to include claimed as due to Agent Orange exposure while serving in and around the Demilitarized Zone of Korea (DMZ). He also claims entitlement to service connection for hepatitis B with cirrhosis, status post liver transplant, due to blood transfusions received at a medical facility in Korea. The Veteran indicates that he served in this area of Korea during most of his period of service, while assigned to the 2nd Infantry Division Signal Battalion. The Veteran's DD 214 reflects service with the United States Army, 8th Hq. Co. 304th Signal Battalion to include 1 year and 3 months of foreign service, but there is no information indicating that he served in Korea. His MOS was cook. The record does not reflect, nor does the Veteran maintain, that he ever served in Vietnam. Determining whether, and precisely where and when, the Veteran was stationed in Korea is crucial to the adjudication of his claims. In this regard, a complete copy of the Veteran's service personnel records have not been associated with the claims file in order to allow for direct review by VA adjudicators. The Board notes that service personnel records often contain information on the Veteran's duty stations, duty assignments, and travel while in the service. The record does not reveal that a request for these records was ever made. Under the circumstance of this case, a remand is thus necessary for the RO to obtain the Veteran's service personnel records. If service in Korea is indicated, additional evidentiary development may be warranted. In regard to his claim of entitlement to service connection for hepatitis B, status post liver transplant, the Veteran maintains that his currently claimed condition may have resulted from treatment received at the 18th Medical Command, Seoul, Camp Yongsan Base, 8th Army Hospital and the 121st Combat Support Hospital, 1st Replacement Company building in Yongsan, where he underwent a blood transfusion. The timing of this reported treatment is not clear, as the variously reported that it took place in 1966 or 1967. Service treatment records on file make no reference to any such treatment or hospitalization. It appears that the NPRC was contacted in 2007 and requested to provide any evidence or any indication that the Veteran was hospitalized between July 1966 and April 1968 at the 121st Combat Support Hospital, 1st Replacement Company building in Yongsan, Korea. A negative reply from NPRC was received in December 2007. However, if the development ordered herein for service personnel records reveals that the Veteran did serve in Korea, a renewed search for such records through alternative sources would be reasonable an warranted. 38 C.F.R. § 3.159(c). For instance, unit morning reports may be available, which may corroborate the Veteran's claim of being hospitalized. In specific regard to the issue of entitlement to service connection for type II diabetes mellitus with secondary renal disease, to include claimed as due to Agent Orange exposure, the Department of Defense (DOD) has determined that Agent Orange was used along the Korean demilitarized zone (DMZ) from April 1968 to July 1969. Veterans assigned to one of the units identified by the DOD as being at or near the Korean DMZ during that time period are presumed to have been exposed to herbicide agents. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The Board reiterates that determining whether, and precisely where and when, the Veteran was stationed in Korea is crucial to the adjudication of his claims. At this point, the evidence does not confirm the Veteran's service in Korea, to include the dates and locations of such service. However, assuming that the Veteran is found to have Korean service, the Board notes that VA has developed specific procedures to determine whether a veteran was exposed to herbicides in Korea. VA's Adjudication Procedural Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l) directs that a request should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of location of a veteran's unit(s) if he alleges service along the DMZ between April 1968 and July 1969, and was assigned to a unit not already identified by the DOD as having served along the DMZ. As it appears that the RO has not attempted to verify the Veteran's assertion that he served Korea, and if so, whether he served in the vicinity of the DMZ, the Board finds that the RO should attempt to verify the nature of the Veteran's service in Korea and any associated alleged herbicide exposure in accordance with the procedures provided in VA's Adjudication Procedure Manual. The United States Court of Appeals for Veterans' Claims has consistently held that the evidentiary development procedures provided in VA's Adjudication Procedure Manual, M21-1MR, are binding. See Campbell v. Gover, 14 Vet. App. 142, 144 (2000) (holding that VA was obligated to comply with the applicable M21-1MR provisions concerning service-connected death claims and remanding for compliance with that provision and applicable regulations); 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 evidentiary development called for by the M21-1MR). Finally, again as pertains to both claims, evidence recently added to the file reflects that the Veteran filed a claim for Social Security disability benefits in 2003. However, records from the Social Security Administration, to include the decision made and the records upon which the decision was based, are not on file. While Social Security Administration determinations are not binding on the Board, these records are potentially important to the Veteran's current claims before the Board, in that they may provide a basis for entitlement to service connection. On remand, the RO should make arrangements to obtain these Social Security Administration records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file the Veteran's service personnel records. All attempts to obtain the records must be documented in the claims file. If no such records exist, the claims file should be documented accordingly. 2. If the Veteran's service in Korea is verified, proceed with the following development: a) Attempt to verify the Veteran's reported service and alleged herbicide exposure in Korea, following the procedures set forth in M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l); specifically, by submitting a request to JSRRC for verification of locations of the Veteran's assigned units and the possibility of herbicide exposure. All requests and responses received should be associated with the claims file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted); and b) Inquire through all appropriate alternative sources to attempt obtain any medical or other evidence, such as morning reports or other unit records, to corroborate that the Veteran was hospitalized or otherwise received a blood transfusion at a medical facility located in Korea. 3. The RO shall contact the Social Security Administration and/or other appropriate Federal agency and request a complete copy of any and all adjudications and the records underlying the adjudications for Social Security Administration disability benefits. All efforts to obtain these records should be fully documented in the claims file. If no such records exist, evidence should be included in the claims file indicating as such. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 4. If the RO cannot locate any records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. 5. Then, readjudicate the Veteran's service connection claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran with an SSOC. The SSOC should contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response. 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. 2009). _________________________________________________ JONATHAN B. KRAMER 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) (2009).