Citation Nr: 1308084 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-05 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus type 2, to include as due to Agent Orange exposure. 2. Entitlement to service connection for hypertension, to include as due to Agent Orange exposure. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1969 to February 1973. He also has multiple verified periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA) in the Air Force Reserve between April 1981 and September 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for diabetes mellitus type 2, claimed as due to Agent Orange exposure, and hypertension, also claimed as due to Agent Orange exposure. In January 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development, including obtaining and verifying all dates of the Veteran's ACDUTRA and INACDUTRA service. Following this development, the denial of service connection for diabetes mellitus type 2 and hypertension was confirmed in an August 2012 rating decision/supplemental statement of the case. The case was returned to the Board in September 2012 and the Veteran now continues his appeal. For the reasons that will be discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND Although the case had been previously remanded for evidentiary development, the Board has reviewed the case and must regrettably remand the appeal once more to the RO/AMC for compliance with internal VA procedure. Pursuant to its duty to assist, VA is obligated to follow the procedures for verifying herbicide exposure for locations other than the Republic of Vietnam or certain parts of Korea, as set forth in the VA's Adjudication Procedure Manual, M21-1MR, part IV, Subpart ii, Chap. 2, Section C, paragraph 10(o). See 38 U.S.C.A. § 5103A(a)(1) (requiring "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim"). M21-1MR, part IV, Subpart ii, Chap. 2, Section C, paragraph 10(o), provides that if a Veteran asserts that he was exposed to Agent Orange in a location other than Vietnam or Korea, VA internal procedure directs that adjudicators contact a claimant for details on alleged exposure and then after 30 days furnish the information to Compensation and Pension Service via e-mail and "request review of DoD's (Department of Defense's) inventory of herbicide operations to determine whether herbicides were used as alleged." Thereafter, if the DoD inventory review does not confirm that Agent Orange was used in the area where the Veteran served, VA claim developers must then send a request to the Joint Services Record Research Center (JSRRC) to verify whether the Veteran was exposed to herbicides. Here, the Veteran's service records show that he was an aircraft fuel systems mechanic in the United States Air Force. His service records provide the location (Ubon Air Force Base in Thailand) and the dates (approximately 1971 - 1973), and the Veteran's contentions provide the nature of his claimed exposure (i.e., contact with Agent Orange from aircraft operating over the Republic of Vietnam and, by extrapolation, exposure to chemical herbicides that were used to control perimeter vegetation at Ubon Air Force Base). Based on this information, VA is obligated to conduct additional evidentiary and procedural development as prescribed in M21-MR. Consequently, since it does not appear from a review of the Veteran's claims file that the prescribed development was ever conducted by VA, the Board finds that it has no alternative but to remand this matter once again so the appropriate action may be undertaken by the RO/AMC to comply with M21-MR. Accordingly, the case is REMANDED for the following action: 1. The RO should request from the Compensation and Pension Service a review of the inventory of herbicide operations maintained by the DoD to determine whether herbicides were used or tested at the Air Force Base in Ubon, Thailand, concurrent with the Veteran's period of overseas deployment at this location, approximately in 1971 - 1973. If such exposure is not verified by the request to the Compensation and Pension Service, verification should be sought from JSRRC and the Department of the Air Force. The RO should forward a list of the Veteran's service dates and duty locations to JSRRC and the Department of the Air Force and request verification of his exposure to herbicides. The results of this development should be outlined in a memorandum for the record. 2. The RO should then readjudicate the Veteran's claims for service connection for diabetes mellitus type 2 and hypertension (to specifically encompass the herbicide exposure the Veteran has broadly alleged). The adjudication process must include a specific finding of whether or not the Veteran was exposed to chemical herbicides while serving in Ubon Air Force Base, Thailand. If herbicide exposure is verified, the RO should arrange for any further development indicated (e.g., a nexus opinion). If any claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ Michael J. Skaltsounis Acting 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) (2012).