Citation Nr: 1120808 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 04-20 426A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1966. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO) which denied service connection for diabetes mellitus. In a January 2004 rating decision, the RO confirmed and continued the previous denial of service connection for diabetes mellitus. The veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2005; the hearing transcript has been associated with the claims file. In a June 2007 decision, the Board affirmed the RO's denial of the benefit on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2009, the Court vacated that Board's decision and remanded the case to the Board for readjudication in compliance with a July 2008 Joint Motion. The Board then remanded the case to the Appeals Management Center (AMC) in November 2009 for additional development as directed by the Court. As discussed below, additional development is necessary. The appeal is REMANDED to the RO via the AMC in Washington, D.C. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that additional development is necessary in order to fairly adjudicate the Veteran's claim. As noted in the Board's November 2009 remand, the Veteran's service personnel records indicate that he was an aircraft repairman, and that he was stationed in Alaska between March 1965 and July 1966 with the 568th Transportation Company, USARAL. The record does not reflect any service in the Republic of Vietnam, nor does the Veteran contend that he had service in the Republic of Vietnam. Rather, the Veteran contends that he was exposed to Agent Orange as a result of his duties performing aircraft maintenance in the United States. Specifically, he stated that he worked on aircraft that were used to spray Agent Orange in Vietnam. In verifying herbicide exposure for locations other than Vietnam or the DMZ in Korea, VA will furnish the Veteran's description of exposure to VA Compensation and Pension (C&P) Service and will request a review of the Department of Defense's (DoD) inventory of herbicide operations to determine whether herbicides were used as alleged. See VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter 2, section C, paragraph 10(n). If C&P service's review does not confirm herbicides were used as alleged, VA is then required to submit a request to the U.S. Army & Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. Id. Initially, the Board notes that, pursuant to the Court's remand, development was undertaken to determine whether the Veteran was stationed at Ft. Richardson, Alaska, during his service. The Veteran's service personnel records have been associated with the claims file, and they contain no reference to Ft. Richardson. Moreover, the Veteran's Court attorney wrote a letter dated June 2010 in which he confirmed that any reference to Ft. Richardson was erroneous, and that the Veteran's correct duty station was Ft. Wainwright, Alaska. The Board notes that the attorney no longer represents the Veteran in any legal capacity. However, in light of his statements and the information contained in the Veteran's personnel records, the Board finds that no additional development is necessary with respect to any service at Ft. Richardson, Alaska. In its November 2009 remand, the Board instructed the RO/AMC to undertake development to determine whether the Veteran was exposed to herbicides as a result of his duties in service. Specifically, the RO/AMC was to furnish the Veteran's description of herbicide exposure to Compensation and Pension (C&P) and request a review of the Department of Defense's (DoD) inventory of herbicide operations to determine whether the Veteran could have been exposed to herbicides as a result of working on OH-13 and U6A aircraft at Ft. Wainwright, Alaska and/or working on "Caribou" aircraft at Ft. Benning and Ft. Gordon, Georgia. Based on a review of DoD documentation, two memoranda were generated by C&P and associated with the claims file. They discuss the use of herbicides in and around the bases in Alaska and Georgia at which the Veteran was stationed. The Board notes that neither memorandum confirms exposure to Agent Orange or other tactical herbicides. The Veteran had also asserted that he was also exposed to herbicides through work on OH-1 aircraft. A December 2003 DoD memorandum indicated that these aircraft were not used to spray Agent Orange in Vietnam. The Board had previously instructed that if C&P research did not confirm herbicide exposure, information regarding the Veteran's claimed herbicide exposure was to be forwarded to the U.S. Army and Joint Services Records Research Center (JSRRC) for a review of unit or other records that might corroborate the Veteran's claims of herbicide exposure. In November 2010, the RO/AMC requested that the Veteran provide information, including unit assignments and dates, to facilitate this development. However, the Veteran did not respond to this request for information, and the matter was not referred to the JSRRC. Because the requested development was not completed, an additional remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, the information regarding the Veteran's claimed exposure from all of the identified aircraft (OH-13, U6A, "Caribou" and O-1) should be forwarded to the JSRRC for additional research. If this additional development confirms that the Veteran worked on aircraft used in dispersing herbicides, then the claims file should be forwarded to an appropriate VA examiner for an opinion as to the relationship, if any, between the Veteran's work on these aircraft and his currently diagnosed diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should forward information regarding the circumstances of the Veteran's claimed herbicide exposure due to work on OH-13, U6A and O-1 aircraft at Ft. Wainwright, and/or working on "Caribou" aircraft at Ft. Benning and Ft. Gordon, to the U.S. Army and Joint Services Records Research Center (JSRRC) so that it can provide any information based on a review of unit or other records that might corroborate the Veteran's claims of herbicide exposure. The Veteran served as an aircraft maintenance worker with the 1st Aviation Company at Fort Benning, Georgia, from September 11, 1964 to November 20, 1964. He was with the 568th Transport Company at Fort Wainwright, Alaska, from February 10, 1965 to July 2, 1966. 2. If the JSRRC or other appropriate agency requests more specific descriptions of the Veteran's herbicide exposure, notify the Veteran and request that he provide the necessary information. If the Veteran provides additional information, forward it to the requesting agency. 3. If, and only if, it is found that the Veteran worked on aircraft involved in spraying tactical herbicides during service, the RO/AMC should refer the case to an appropriate VA examiner for an opinion regarding the relationship between the Veteran's diabetes mellitus and his potential exposure to herbicides. The claims folder, including a copy of this remand, must be made available to the examiner. The examiner must, in light of the service and post-service medical evidence of record determine whether it is at least as likely as not that diabetes mellitus is due to or the result of the Veteran's potential exposure to tactical herbicides in service. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue. The rationale for all opinions expressed must be provided. The term "at least as likely as not" as used above does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner should include pertinent clinical findings from the record, and rationale for all opinions expressed. The RO/AMC should review the medical opinion to ensure that it is in complete compliance with this remand. If deficient in any manner, the RO/AMC must implement corrective procedures. 4. When the development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefit sought is not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity within which to respond thereto. The Veteran 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). _________________________________________________ S. L. Kennedy 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).