Citation Nr: 1112490 Decision Date: 03/29/11 Archive Date: 04/07/11 DOCKET NO. 04-10 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as a result of herbicide exposure during service. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to May 1971. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an August 2003 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Paul, Minnesota, which denied the Veteran's claim of entitlement to service connection for diabetes mellitus, type II ("DM II"), claimed as a result of herbicide exposure in service. In October 2005, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of that hearing has been associated with the claims folder. The Board has previously considered this appeal. In December 2005, the Board denied the appellant's claim. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("Court"). In a February 2010 single-judge Memorandum Decision, the Court set aside that part of the Board's decision that denied entitlement to the aforementioned claim for service connection, and remanded the claim for further development and adjudication. In September 2010, the Board remanded the Veteran's claims for further development, specifically to attempt to obtain additional information that could assist in verifying his claim that he visited the Republic of Vietnam during the Vietnam Era. This was accomplished, and in January 2011, the RO issued a Supplemental Statement of the Case, in which it continued to deny the Veteran's claim. The claims folder has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND The Veteran has also claimed that, in addition to having been present within the borders of Vietnam during service, he was also exposed to herbicides during active duty in Thailand. The Board observes that, although the Veteran previously made this claim, the evidence needed to substantiate such claim has never been thoroughly developed. Accordingly, the Board has determined that additional development is necessary prior to the adjudication of the claim of entitlement to service connection for DM II as a result of herbicide exposure during active duty service in Thailand. The Veteran's service personnel records confirm that he served two tours of duty in Thailand between 1967 and 1970 at the U-Tapao Royal Thai Naval Air Station. These reports further demonstrate that his military occupational specialty was that of a flight line systems specialist. He contends that, while his primary duty was to work on B-52 bombers and KC-135 refueling tanker aircraft, on several occasions, he also worked on cargo planes that were rigged for defoliant spraying; he asserts that he therefore came in direct contact with Agent Orange via these aircraft. Under the Veterans Claims Assistance Act of 2000, VA has a duty to assist claimants in substantiating their claims, including the duty to assist the claimant in obtaining evidence. This also includes the heightened duty to assist in obtaining records in the possession of a Federal agency, including service records. See Tetro v. Gober, 14 Vet. App. 110 (2000); Walch v. Shinseki, 563 F.3d 1374, 1377 (Fed. Cir. 2009) (noting that "a significant part of the VA's duty to assist is its obligation to make reasonable efforts to obtain relevant records."). The possibility that such records could contain evidence relevant to the appellant's claim cannot be foreclosed absent a review of those records. Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007). As such, the Board finds that an attempt to obtain official records and/or other objective evidence that would show the periods (if any) of the use of Agent Orange in Thailand during the Vietnam Era must be undertaken. Accordingly, the case is REMANDED for the following action: 1. The RO should not remove the tabs marking the evidence in the claims folder. 2. The RO should follow the official VA guidelines to assist the Veteran in substantiating his claim that he was exposed to Agent Orange in service during the servicing of aircraft rigged with defoliant spraying equipment, including the determination of whether Agent Orange was ever used in Thailand during the Vietnam Era, and/or whether aircraft used to spray Agent Orange were serviced in Thailand. This includes, if necessary, making a request to the National Personnel Records Center and any other appropriate location for such information. All material produced by the requested search should be incorporated into the record. If no additional records are located, please indicate via a formal finding and inform the Veteran that it is reasonably certain that such records do not exist and that further efforts to obtain those records would be futile. 3. Thereafter, the claims file must be reviewed to ensure that all of the foregoing requested development has been completed. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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. 2010). _________________________________________________ BARBARA B. COPELAND 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) (2010).