Citation Nr: 1007251	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  05-18 437	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, 
New York



THE ISSUE

Entitlement to service connection for diabetes mellitus, Type 
II, claimed as due to herbicide exposure.



REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Esq.



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel



INTRODUCTION

The Veteran served on active duty from January 1968 to 
January 1972.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a May 2004 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
New York, New York.

In November 2007 the Board issued a decision that denied 
service connection for Type II diabetes mellitus.  The 
Veteran thereupon appealed the Board's decision to the United 
States Court of Appeals for Veterans Claims (Court), which 
issued an Order in December 2008 that granted a joint motion 
of the parties (Joint Motion) and remanded the case to the 
Board for further development.


REMAND

In the Joint Motion, as incorporated by the Court's Order, 
the parties asserted VA had failed to adequately develop 
evidence concerning the Veteran's claimed exposure to 
herbicides while serving at Udorn Air Force Base, Thailand as 
required by the VA Adjudication Procedure Manual and Manual 
Rewrite (M21-1 MR).

The Board is bound by the findings contained in the Joint 
Motion, as adopted by the Court.  See Chisem v. Gober, 10 
Vet. App. 526, 527-8 (1997) (under the "law of the case" 
doctrine, appellate courts generally will not review or 
reconsider issues that have already been decided in a 
previous appeal of the same case; the Board is therefore not 
free to do anything contrary to the Court's prior action with 
respect to the same claim).

Accordingly, this case is REMANDED to the RO or the Appeals 
Management Center (AMC), in Washington, D.C., for the 
following actions in compliance with the Court's Order:

1.  The RO or the AMC should send to the 
Veteran and his representative a letter 
requesting the Veteran to identify the 
approximate dates, location and nature of 
the alleged herbicide exposure.  

2.  Thereafter, the RO or the AMC should 
submit the Veteran's detailed description 
to the Compensation and Pension Service 
and request a review of the Department of 
Defense (DoD) inventory of herbicide 
operations to determine whether 
herbicides were used or stored as the 
Veteran alleges.

3.  If the above measures to not confirm 
exposure to herbicides, the RO or AMC 
should submit a request to the U.S. Army 
Joint Services Records Research Center 
(JSRRC) for verification of the Veteran's 
exposure to herbicides.

4.  The RO or the AMC should also 
undertake any other development it 
determines to be warranted, to include 
appropriate development to obtain any 
pertinent, outstanding records.

5.  Then, the RO or the AMC should 
readjudicate the issue on appeal.  If the 
benefit sought on appeal is not granted 
to the appellant's satisfaction, he and 
his representative should be furnished a 
supplemental statement of the case and 
afforded the requisite opportunity to 
respond before the case is returned to 
the Board for further appellate action.  

By this remand, the Board intimates no opinion as to any 
final outcome warranted.

No action is required of the Veteran until he is otherwise 
notified, but he has the right to submit additional evidence 
and argument on the matter the Board has remanded.  See 
Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This case 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).



_________________________________________________
Shane A. Durkin
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).