Citation Nr: 1308528 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 09-27 950A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to Agent Orange exposure. 2. Entitlement to service connection for high blood pressure, claimed as secondary to Agent Orange exposure. 3. Entitlement to service connection for non-Hodgkin's lymphoma, claimed as secondary to Agent Orange exposure. 4. Entitlement to service connection for a right upper extremity disorder, claimed as secondary to Agent Orange exposure. 5. Entitlement to service connection for a left upper extremity disorder, claimed as secondary to Agent Orange exposure. 6. Entitlement to service connection for a right lower extremity disorder, claimed as secondary to Agent Orange exposure. 7. Entitlement to service connection for a left lower extremity disorder, claimed as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from May 1968 to February 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claims. In February 2011, a hearing was held before the undersigned Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002). In September 2011, the Board denied the Veteran's claims for service connection for diabetes mellitus, type II, high blood pressure, non-Hodgkin's lymphoma, hepatitis C, right and left upper extremity disorders, and right and left lower extremity disorders, all claimed as secondary to Agent Orange exposure. Thereafter, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and pursuant to an Order, dated in August 2012, with the exception of the claim for service connection for hepatitis C, the Court vacated the September 2011 decision with respect to the remaining claims for action consistent with a July 2012 Joint Motion for Partial Remand. 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 More specifically, the parties to the Joint Motion determined that in denying the Veteran's claims based on exposure to Agent Orange, the Board erred by not ensuring that VA had complied with its duty to assist by following 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), was noted to provide 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, according to the Joint Motion, 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. It was also noted that at the time of the Veteran's hearing before the Board, the Veteran's representative suggested that the Veteran's reported exposure could also be confirmed with the Department of the Navy. Here, the Veteran had provided the place (the Naval Air Station (NAS) in Olathe, Kansas), the date (1968), and nature of his claimed exposure (spraying runways with Agent Orange), and based on this information, the Joint Motion concluded that VA needed to carry out the additional development required under M21-MR. Consequently, since it does not appear that this development was ever carried out, the Board finds that it has no alternative but to remand this matter so this action may be undertaken by the RO. 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 as alleged by the Veteran. If the exposure is not verified by the request to the Compensation and Pension Service, verification should be sought from JSRRC and the Department of the Navy. The RO should forward a list of the Veteran's service dates and duty locations, and his contentions regarding the nature of his exposure to herbicides in service to JSRRC and the Department of the Navy, 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 II, high blood pressure, non-Hodgkin's lymphoma, right and left upper extremity disorders, and right and left lower extremity disorders (to specifically encompass the herbicide exposure the Veteran has alleged). The adjudication process must include a specific finding of whether or not the Veteran's allegations of herbicide exposure are verified. 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 and his representative 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 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. 2012). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).