Citation Nr: 1313170 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-08 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to herbicide exposure or secondary to diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure or secondary to diabetes mellitus. 3. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active service from January 1953 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied the Veteran's claims of service connection for diabetes mellitus, to include as due to herbicide exposure, and for peripheral neuropathy of the bilateral upper extremities and for peripheral neuropathy of the bilateral lower extremities, each to include as due to herbicide exposure or diabetes mellitus. In November 2010, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. Subsequently, in a March 2012 decision, the Board denied the claims of service connection for peripheral neuropathy and remanded the issue of service connection for diabetes mellitus. The Veteran appealed the determination of the claims for peripheral neuropathy to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the Office of General Counsel for the Department of Veterans Affairs and the Veteran's representative (hereinafter "the parties") filed a Joint Motion for Remand, which was granted by the Court in October 2012. The case has been returned to the Board for further development in accordance with the Joint Motion Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claims can be adjudicated. In the March 2012 decision, the Board remanded the issue of service connection for diabetes mellitus to send the Veteran a letter requesting information concerning all medical providers and afford the Veteran a VA examination with opinion. The Veteran was sent a letter in March 2012 and afforded a VA examination that same month. Further, a review of the Veteran's Virtual VA electronic claims system also shows that additional VA treatment records dated from February 2012 were associated with the Veteran's record. However, it does not appear that the RO has issued a supplemental statement of the case addressing this evidence. Moreover, the March 2012 VA examination report also addressed the issues of service connection for peripheral neuropathy of the upper and lower extremities. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board a supplemental statement of the case must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c). Accordingly, these issues must be returned to the RO for consideration of the additional medical evidence in an appropriate supplemental statement of the case. Further, in light of the Joint Motion for Remand, the Board also finds that further development is necessary concerning the Veterans' allegations of exposure to herbicides while stationed in Thailand and during a temporary duty assignment (TDY) to Korea. The Veteran's service personnel records show that he was transferred to the 6232nd Combat Support Group in Thailand in March 1966. These records also show that he received a performance evaluation while assigned to the 432nd Supply Squadron at Udorn Royal Thai Air Force Base (RTAFB), Thailand, between March 1966 and March 1967. A March 2011 correspondence from the Unites States Air Force indicated that upon review of unit histories, there were numerous mentions of cargo destined for Udorn being sent to Bangkok and the Udorn supply squadron personnel had to pick up the cargo and drive it back to Udorn. With regard to the matter of whether Agent Orange was used in Thailand, the Department of Defense has indicated to the VA Chief Officer for Public Health and Environmental Hazards that there was some limited spraying of the herbicide Agent Orange in Thailand, but this occurred in 1964 and 1965. Per a VA Memorandum pertaining to herbicides use in Thailand during the Vietnam era, the Compensation and Pension Service has reviewed a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense. This list contains 71 sites within the U.S. and in foreign countries where tactical herbicides, such as Agent Orange, were used, tested, or stored. Testing and evaluations of these tactical herbicides were conducted by or under the direction of the U.S. Army Chemical Corps, Fort Detrick, Maryland. The list does not contain names of individuals. Additionally, it does not contain any references to routine base maintenance activities such as range management, brush clearing, weed killing, etc., because these vegetation control activities were conducted by the Base Civil Engineer and involved the use of commercial herbicides approved by the Armed Forces Pest Control Board. The application of commercial herbicides on military installations was conducted by certified applicators. Department of Defense has advised that commercial herbicides were routinely purchased by the Base Civil Engineer under federal guidelines and that records of these procurements were generally kept no longer than two years. Compensation and Pension Service has also reviewed a series of official Department of Defense monographs describing in detail the use, testing, and storage of herbicides at various foreign and domestic locations. In addition, the Project CHECO Southeast Asia Report: Base Defense in Thailand, produced during the Vietnam era, has been reviewed. Regarding a veteran claimant with Thailand service, the Department of Defense list indicates only that limited testing of tactical herbicides was conducted in Thailand from 2 April through 8 September 1964. Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. The Report of these tests noted that 5 civilian and 5 military personnel from Fort Detrick, Maryland conducted the spray operations and subsequent research. This location was not near any U.S. military installation or Royal Thai Air Force Base. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. A letter from the Department of the Air Force states that, other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand. There are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer. In Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND or by helicopters under the control of the U.S. Army Chemical Corps. Base Civil Engineers were not permitted to purchase or apply tactical herbicides. There are no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from 30 August through 16 September 1963 and from 14 -17 October 1966. The 1966 missions involved the spraying of Malathion insecticide for the "control of malaria carrying mosquitoes." These facts are not sufficient to establish tactical herbicide exposure for any veteran based solely on service in Thailand. While the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. However, as noted above, there are no records to show that the same tactical herbicides used in Vietnam were used in Thailand. In the instant case, the Veteran's military occupational specialty was fuel specialist and hydrant system operator, which are not usually recognized as serving near the base perimeter. However, in light of the evidence that the Veteran's squadron drove cargo from Bangkok to Udorn, the Board finds that further development is necessary. Moreover, the Veteran's service personnel records also showed that the Veteran was on TDY to Korea from July 11 to July 22, 1968. The VA Adjudication Procedures Manual observes that the Department of Defense had confirmed that the herbicide Agent Orange, was used from April 1968 through July 1969 along the Korean DMZ to defoliate the fields of fire between the front line defensive positions and the south barrier fence. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. There was no indication that the herbicide was sprayed in the DMZ itself. Importantly, the Veteran was present in Korea during the applicable time period that herbicides were used in accordance with 38 C.F.R. 3.307(a)(6)(iv). Under the development instructions set out in the VA Adjudication Procedure Manual, if it is determined that a Veteran who served in Korea during that time period belonged to one of the units identified by Department of Defense, then it was presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) would apply. See VA Adjudication Procedure Manual, MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In the instant case, the record does not document that the Veteran served in a unit that operated in or near the Korean DMZ. Thus, the Veteran's unit's location must be verified to determine whether the Veteran was near the DMZ during his TDY in Korea. Id. Thus, in light of the above and in accordance with the Joint Motion, the Board finds that further development, to including contacting the National Personnel Records Center (NPRC) and U.S. Army and Joint Services Records Research Center (JSRRC) is needed to determine whether the Veteran was exposed to herbicides during service. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide information concerning his duties while stationed at Udorn RATFB in Thailand approximately from March 1966 to March 1967 as well as while on TDY to Korea in July 1968. 2. The RO should contact the NPRC to request information concerning the Veteran's location and duties while stationed on TDY in Korea in July 1968. 3. The RO should contact the JSRRC, provide the verified particulars of the Veteran's foreign service, and specifically request verification of the claimed herbicide exposure in Thailand and Korea. 4. After completion of the above and any additional development deemed necessary by the RO, the RO should review the expanded record, to specifically include all evidence received since a January 2012 supplemental statement of the case and reajudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ MARJORIE A. AUER 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).