Citation Nr: 1237690 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 05-38 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus on a direct basis, to include as due to claimed in-service herbicide exposure, and as secondary to service-connected hypertension and/or coronary artery disease (CAD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin INTRODUCTION The Veteran served on active duty from August 1957 to February 1977. This appeal to the Board of Veterans' Appeals (Board) arises from an October 2004 rating decision in which the RO, in Roanoke, Virginia, inter alia, denied service connection for diabetes mellitus. In March 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2005. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Columbia, South Carolina. In February 2006, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is of record. In a form submitted with his October 2005 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing). In an October 2006 letter, the RO informed the Veteran that his hearing was scheduled in November 2006. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not subsequently requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2010). In July 2009, the Board remanded the claim for service connection for diabetes mellitus, claimed as secondary to herbicide exposure, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing further development, the Remand and Rating Development Team at the Huntington, West Virginia RO continued the denial of the claim (as reflected in a September 2010 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. Subsequently, in July 2011, the Board again remanded the case for additional development, to include providing notice to the Veteran of how to establish service connection on a secondary basis, and to attempt to verify herbicide exposure pursuant to procedures outlined in the M21-MR. The AMC completed some of the requested actions, and has returned the case to the Board. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND For the reasons expressed below, the claim on appeal is, again, being remanded to the RO via the AMC in Washington, DC. VA will notify the Veteran when further action, on his part, is required. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance." Id. The Veteran alleges that he has diabetes mellitus due to in-service herbicide exposure. In this regard, he reported in his March 2005 NOD that he attended chemical warfare school at Fort McClellan in 1964, where he was exposed to many chemicals, including Agent Orange. He also stated that he was exposed to many different chemicals, including Agent Orange, in his training as a nuclear biological chemical warfare specialist. In May 2005, the Veteran reported that he completed the Nuclear, Biological, and Chemical Defense course given in Camp Lejeune, North Carolina, in October 1963, and completed the Enlisted Chemical Biological and Nuclear Course at the United States Army Chemical School in Fort McClellan, Alabama, in April 1964. He submitted certificates of completion for each of these courses. He stated that, while in training at Camp Lejeune and Fort McClellan, he was in areas that all chemical agents were deployed. During the February 2006 hearing, the Veteran testified that he was exposed to Agent Orange during his 1964 training at Fort McClellan. In response to being asked whether he had been told by any Department of Defense official that Agent Orange was on the training site, he indicated that, to the best of his knowledge, he had. He added that he believed Agent Orange was on the training site because in one area there were no leaves on the trees and "it was kind of a muddy area at the time." He also testified that he believed he was exposed to Agent Orange while doing inspections on a Marine Air Weapons training unit in Cherry Point, North Carolina, and that he possibly could have been exposed to Agent Orange in Okinawa, Japan, although he was not sure. VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 10. In July 2009, the Board remanded the claim for service connection for diabetes mellitus, type II, claimed as secondary to Agent Orange exposure, to attempt to verify the Veteran's alleged herbicide exposure, as described in May 2005 and February 2006, following the procedures set forth in the VBA Adjudication Procedure Manual (M21-1MR). In the prior remand, the Board noted that the Manual directs that a detailed statement of a veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the Department of Defense's ("DoD") inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should was then to be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 10.o. Accordingly, in light of the Veteran's assertions, a request for review of the DoD inventory was sent to the C&P Service in September 2009. The RO/AMC reported that the Veteran alleged herbicide exposure in Fort McClellan in April 1964, in Okinawa from June 1965 to May 1966, and in Cherry Point in May 1966. In a November 2009 response, the C&P Service reported that the DoD documents did not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at Fort McClellan, Alabama, or Cherry Point Air Station, North Carolina, or at any location on Okinawa. The response noted that, in general, tactical herbicides were developed for Vietnam and used there, and that, while some limited testing was done at sites in the United States and foreign locations, the locations in which the Veteran served were not among the test sites. The response also stated that Fort McClellan was the Army's site for training chemical handlers; that herbicide developmental studies were conducted from Fort Detrick, Maryland, not from Fort McClellan, and that herbicides were not generally considered chemical weapons. The C&P Service then outlined the policy described in the Manual, noting that, unless the claim is inherently incredible or clearly lacks merit, cases should be referred to the JSRRC for any information to corroborate the Veteran's claimed exposure. In May 2010, VA requested information from the JSRRC regarding the Veteran's claimed in-service herbicide exposure; however, the request only described his service in Okinawa from March 1965 to March 1966, from May 1968 to May 1969, and from November 1972 to February 1974. In a May 2010 response, JSRRC stated that, according to the DoD listing, Agent Orange and other tactical herbicides were not used, tested, disposed of, or stored in Okinawa, Japan, including all of the camps and bases listed by the Veteran, during the period from January 1965 through December 1974 and, therefore, it could not verify that the Veteran was exposed to herbicides while stationed in Okinawa. Despite the foregoing development, the record reflects the Veteran's assertion that he was exposed to herbicides during his training as a nuclear biological chemical warfare specialist. The record reflects that this training occurred at Camp Lejeune in October 1963; however, this alleged exposure was not included in the September 2009 request to the C&P Service. Moreover, the May 2010 request for information from the JSRRC was limited to the alleged exposure in Okinawa, but did not address the Veteran's claimed exposure at Camp Lejeune (in October 1963), Fort McClellan (in April 1964), and Cherry Point, North Carolina (in May 1966). In light of the foregoing, the Board remanded the case in July 2011 for further development, to include contacting the C&P service via email regarding the Veteran's claimed herbicide exposure, and contacting the JSRRC regarding the claimed herbicide exposure at Camp Lejeune (in October 1963), at Fort McClellan (in April 1964), and in Cherry Point, North Carolina (in May 1966). Subsequently, in March 2012, the RO contacted the Compensation and Pension service by email, and was advised the Department of Defense documents do not show any use, testing or storage of tactical herbicides such as Agent Orange at Camp Lejeune, North Carolina, Fort McClellan, Alabama, or Cherry Point, North Carolina. The email further stated that unless the claim is inherently incredible, clearly lacks merit, or there is no reasonable possibility that further VA assistance would substantiate the claim, the RO should sent a request to the JSRRC for any information that that organization could provide to corroborate the Veteran's claimed exposure. Subsequently, however, in May 2012, instead of contacting the JSRRC, the RO contacted the National Archives and Records Administration. That organization stated that they were unable to locate any relevant documentation. To the present date, the RO has not contacted the JSRRC as had been specified in the Board's prior remand and in the email from the Compensation and Pension service. The Board has noted that in a memorandum dated in July 2012, the AMC stated that the M21-1MR indicates that verification of a stressor for a Marine Corps Veteran cannot be submitted through the JSRRC. The Board notes, however, that the present case does not pertain to verification of a stressor, but instead related to verification of exposure to herbicides. Accordingly, the Board concludes that a request to the JSRRC must still be accomplished. The Court has held that evidentiary development procedures provided in VA's Adjudication Procedure Manual are binding. See 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 the evidentiary development called for by the M21-1). Based on the foregoing, the Board finds that remand is required to ensure compliance with the July 2009 and the July 2011 remands. See Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to verify the Veteran's alleged herbicide exposure by submitting a request to the JSRRC regarding the Veteran's claimed herbicide exposure at Camp Lejeune (in October 1963), at Fort McClellan (in April 1964), and in Cherry Point, North Carolina (in May 1966). All responses received should be associated with the claims file. 2. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for a VA examination, if appropriate), the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 4. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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 o r 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). _________________________________________________ WAYNE M. BRAEUER 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).