Citation Nr: 1310620 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-48 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. In the VA Form 9, Appeal to the Board of Veteran's Appeals, received in December 2010, the Veteran indicated that he wished to testify at a hearing before the Board at the local RO. However, in February 2011, the Veteran indicated that he wished to withdraw his request for a Board hearing. Therefore, the Board finds that there is no hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2012). In February 2012, the Veteran testified before a Decision Review Office (DRO) at the RO. A copy of the transcript is of record. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in the claims file. 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 record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claim on appeal. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order for VA to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Veteran alleges that he is entitled to service connection for diabetes mellitus, type II, due to exposure to herbicides while serving in Okinawa, Japan. Specifically, at the February 2012 DRO hearing, the Veteran testified that he was in the field maintenance squadron/ aircraft maintenance during his military service, and for approximately six months he spent time in Okinawa Japan, at the Kadena Air Force Base. It was during this time that he worked on the right side of the flight line and was responsible for collecting parts off the aircraft, handling parts, and climbing around the aircraft. The Veteran indicated that these aircrafts, B-52 bombers and KC-135 tankers, flew missions over North and South Vietnam. See the February 2012 DRO hearing transcript. The Veteran stated that the handling of the aircrafts that flew into North and South Vietnam exposed him to Agent Orange (herbicides), which caused his current diabetes mellitus, type II. The Veteran asserts that service connection is warranted for diabetes mellitus, type II. Diabetes mellitus, type II, is on the list of diseases for which presumptive service connection can be awarded if the evidence indicates exposure to an herbicide agent. 38 C.F.R. § 3.309(e) (2012). Exposure to an herbicide agent will be conceded if a veteran served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, to include the waters offshore and if service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(i), (iii) (2012). Additionally, if a veteran served between April 1, 1968 and August 31, 1971 in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, the presumption will also apply. 38 C.F.R. § 3.307(a)(6)(iv). In this case, the Veteran does not allege and the evidence does not suggest that he ever visited Vietnam, Korea, or Thailand during service. Thus, the Veteran is not presumed exposed to herbicides. The record currently contains no objective evidence that the Veteran was exposed to herbicides. Most recently in November 2009, a response from the National Personnel Records Center (NPRC) noted that there were no records showing that the Veteran had been exposed to herbicides. However, the Veteran's service personnel records have not been associated with the claims file. It is possible that the Veteran's service personnel records will indicate where and when the Veteran served in Okinawa. Additionally, where a Veteran is not presumed to have been exposed to herbicides, the VA Adjudication Manual requires that the Veteran's description of exposure be provided to the Compensation Service for a review of the Department of Defense inventory of herbicide operations to determine whether herbicides were used as alleged. See M21-1MR, Part IV, Subpart ii, 2.C.10.o. If the Compensation Service's review does not confirm herbicide use as alleged, then a request is to be sent to the Joint Service Records Research Center (JSRRC) for verification of herbicide exposure. Id. The RO did not develop the case in conformity with the requirements of M21-1MR. The Court of Appeals for Veterans Claims (Court) has held that evidentiary development procedures as provided for 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 outlined in M21-1). Accordingly, as there appears to be additional development that needs to be undertaken to determine whether the Veteran should be afforded the presumption of service connection for his diabetes mellitus, type II, a remand is necessary. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran proper notice with respect to his claim based on herbicide exposure. In particular, this notice must include the procedural steps to verify such exposure as outlined in the M21-1MR. 2. Obtain the Veteran's service personnel records. If a review of the service personnel records in conjunction with the evidence of record indicates that the Veteran served in an area that might have been sprayed by or carried herbicides agents, to include Okinawa; undertake the necessary development to corroborate such. 3. Forward the Veteran's description of exposure to the Compensation Service for a review of the Department of Defense inventory of herbicide operations to determine whether herbicides were used as alleged. See M21-1MR, Part IV, Subpart ii, 2.C.10.o. 4. If the Compensation Service's review does not confirm herbicide use as alleged, then a request is to be sent to the Joint Service Records Research Center (JSRRC) for verification of herbicide exposure. Id. 5. Then, the RO should readjudicate the claim on the merits. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board 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). _________________________________________________ KELLI A. KORDICH 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).