Citation Nr: 1234922 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 08-08 428 ) 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, to include as due to claimed herbicide exposure. REPRESENTATION Appellant represented by: John F. Dowd, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In September 2009, the Veteran presented testimony at the RO before the undersigned Veterans Law Judge via a teleconference hearing. A transcript of the hearing has been associated with the record. In a January 2010 decision, the Board denied the claim of service connection for diabetes mellitus. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In a March 2012 Memorandum Decision, the Court vacated the January 2010 Board's denial and remanded the matter to the Board for development. A review of the Virtual VA paperless claims processing system reveals VA treatment records pertinent to the present appeal. In January 2010, the Board remanded the claim of service connection for hepatitis C for additional development. The January 2010 remand directives regarding the claim remain pending readjudication. 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 Board remands this case in view of the determination provided in the Court's March 2012 Memorandum Decision that additional development measures are needed to ensure compliance with the VA Adjudication Procedures Manual (M21-1MR) and to assist the Veteran in obtaining evidence to substantiate his claim.\ The Veteran essentially contends that VA has not developed his claim pursuant to the M21-1MR as he claims his diabetes mellitus was caused by exposure to Agent Orange while serving at the Army Service Command Post (ASCOM) in Korea from January 1969 to February 1970. In its decision, the Court determined the evidence supported the Veteran's argument that VA failed to follow steps four, five, and six of the M21-1MR, part IV, subpart ii, chapter 2, section C(10)(o). See March 2012 Memorandum Decision, p. 1. The Court observed that the evidence "does not reflect that VA personnel contacted the Compensation and Pension (C&P) Service, the Department of Defense's (DoD's) inventory of herbicide operations, or the U.S. Army & Joint Services Records Research Center (JSRRC) for further evidence pursuant to steps four, five and six." See M21-1MR, part IV, subpart ii, chapter 2, section C(10)(o). The Court noted that while VA had submitted a request for information to the DoD and a VA military records specialist submitted pertinent evidence, it was "unclear as to whether (1) the VA military records specialist's submission was the required C&P Service response and (2) the DoD's inventory of herbicide operations was consulted, or that any request was sent to the JSRRC." See March 2012 Memorandum Decision, p. 2. The Court also noted that although the RO concluded that the Veteran's service treatment records were unavailable, the Board noted the availability of many of his records and the record reflected the Veteran's actual knowledge of the need to submit alternative forms of evidence, such as buddy statements. See March 2006 VA memorandum concerning a formal finding of the unavailability of the Veteran's service treatment records; see also buddy statements submitted in January 2007 and July 2007. However, the Court directed that VA must provide the Veteran reasonable assistance to obtain alternative forms of evidence to support his claim. See March 2012 Memorandum Decision, p. 3. Additionally, the Court noted that the Veteran did not demonstrate that the Board provided inadequate reasons and bases for its determination that the buddy statements submitted in January 2007 and July 2007 were not competent. Id. at 4. The Court provided that if the Veteran "adequately identifies on remand a source competent to provide information on whether the barrels contained Agent Orange, he may request assistance from [VA] to help obtain that information." Additionally, following the March 2012 Memorandum Decision, the Veteran submitted additional evidence directly to the Board. In an accompanying August 2012 statement, the Veteran specifically requested that the Board remand his case to the agency of original jurisdiction (AOJ) for review of this new evidence. Accordingly, the case is REMANDED for the following action: 1. The RO must also ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record - to specifically include, but not limited to, any available service treatment records and any VA treatment records dated after January 2009. * The RO must then obtain these records, as well as any other pertinent records, and associated them with the claims folder * These development actions should consist of an initial request for the records, and if the records are not received, at least one follow-up request. If there is information that the records sought do not exist or that further efforts to obtain them would be futile, then notify the Veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). * If no additional service treatment records can be located, make a formal finding as to their unavailability and, as required by 38 C.F.R. § 3.159(e), inform the Veteran of the status of the records. Advise him that alternative forms of evidence can be developed to substantiate the claims, including but not limited to "buddy certificates" and letters. Dixon v. Derwinski, 3 Vet.App. 261, 263-264 (1992). * Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record. 2. The RO must develop the Veteran's claim that he was exposed to Agent Orange while serving at ASCOM in Korea from January 1969 to February 1970 as a stock control and account specialist in accordance with M21-1MR, part IV, subpart ii, chapter 2, section C(10)(o). * Provide the C&P Service with a detailed description of the Veteran's claimed exposure to Agent Orange, and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as alleged. * Send a request to the JSRRC for verification of exposure to herbicides or refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. * Associate all correspondence to and from the C&P Service, DoD's inventory of herbicide operations, and the JSRRC with the claims file. 3. When the actions requested have been completed, undertake any other indicated development, if deemed by the RO to be appropriate under the law. 4. The RO must then readjudicate the Veteran's service connection claim. If the benefit sought on appeal remains denied, the Veteran must be provided a supplemental statement of the case (SSOC) that readjudicates his claim. The SSOC must set forth that the additional evidence has been considered TO INCLUDE THE BUDDY STATEMENT THAT THE VETERAN SUBMITTED DIRECTLY TO THE BOARD IN JULY 2012 and identify the relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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. 2011). _________________________________________________ Vito A. Clementi 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) (2011).