Citation Nr: 1310177 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 04-06 980A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for diabetes mellitus, Type II, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Michael A. Leonard, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from November 1965 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In January 2006, the Veteran provided testimony at a hearing before a Veterans Law Judge (VLJ) in Washington, D.C. That VLJ has since left the Board's employment and in January 2013 the Veteran declined the offer of another hearing. Therefore, the Board finds that adjudication of this appeal may go forward without scheduling the Veteran for another hearing. This appeal has a long procedural history but, in the interest of brevity, the Board will refer the reader to the November 2011 Board decision for that history except to note that in March 2012, based on a Joint Motion for Remand (JMR), the United States Court of Appeals for Veterans Claims (Court) issued an Order vacating the November 2011 Board decision and remanding the appeal to the Board for adjudication. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In September 2010, the Board remanded the appeal, in part, to attempt to obtain verification as to the Veteran's claim that his current type II diabetes mellitus was caused by exposure to herbicides, including Agent Orange, during his service in Japan in 1967. In this regard, the RO was directed to carry out the following development: VA should furnish the Veteran's description of Agent Orange/chemical exposure to the compensation and pension service by way of email (addressed to VAVBAWAS/CO/211/Agent Orange) and request a review of the Department of Defense inventory of herbicide operations to determine whether herbicides of any type were used at Atsugi, Japan, in April and May 1967. If the review does not confirm the use of herbicides as alleged, VA should submit a request for verification of exposure to herbicides to JSSRC (the U.S. Army and Joint Services Records Research Center). VA should also arrange for the development to ascertain whether the Veteran might have been exposed to any other toxic chemicals (and if so, the nature of the chemicals and the extent of exposure) in the course of his duties using liquid weed killer in Japan. The March 2012 JMR vacated and remanded the November 2011 Board decision, in part, because while the appeal was in remand status the RO did not submit a request for verification of exposure to herbicides to JSSRC after the reply from VAVBAWAS/CO/211/Agent Orange (DPRIS) came back as negative in December 2010. Accordingly, the Board must once again remand this appeal to obtain full compliance with the November 2011 Remand directions. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 19.9 (2012); Stegall v. West, 11 Vet. App. 268 (1998) (hold that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Accordingly, the appeal is REMANDED to the RO for the following actions: 1. Give the Veteran an opportunity to identify or submit any additional relevant records. Appropriate attempts to obtain any such records identified, that are not in the file, should be made. 2. The RO should submit a request for verification of exposure to herbicides to JSSRC. VA should also arrange for the development to ascertain whether the Veteran might have been exposed to any other toxic chemicals (and if so, the nature of the chemicals and the extent of exposure) in the course of his duties using liquid weed killer in Japan. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If they cannot be located or no such records exist, a memorandum of unavailability outlining all actions to obtain the requested records should be prepared and associated with the claims file and the Veteran and his attorney should be notified in writing that they do not exist. 3. The RO should thereafter undertake any additional development as may become suggested, including if indicated, obtaining a nexus opinion regarding whether the claimed disability could be linked to non-tactical herbicide exposure, and re-adjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC should contain notice of all relevant actions taken on the claim for benefits to include a summary of the evidence received, any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant 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 or by the Court 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 E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).