Citation Nr: 1319073 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-46 531A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records, including a January 2013 rating decision and January 2013 notice of the decision, have been added to the present appeal. 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 Veteran alleges that he was exposed to herbicides during his active service in Thailand from 1965 to 1966, while stationed at Camp Essayons, Thailand. He alleges that he was building roads near the Cambodian border. The Veteran's service information reflects that his military occupational specialties (MOSs) were construction machine operator and armor crewman. Service personnel records also reflect that the Veteran served in Thailand from July 1965 to July 1966 as a construction machine operator with Company C and Company A of the 538th Engineering Battalion (C) during this time. The record reflects that the Veteran has a current diagnosis of diabetes mellitus, type II. Under the provisions of 38 C.F.R. § 3.309(e), if a veteran was exposed to certain herbicide agents, during active military, naval, or air service and has a disease listed in 38 C.F.R. § 3.309(e), such disease shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The listed diseases include type II diabetes mellitus. Under 38 C.F.R. § 3.307(a)(6), the presumption with respect the diseases listed in 38 C.F.R. § 3.309(e) applies to veterans who had service in the Republic of Vietnam. Although the record evidence shows that the Veteran has been diagnosed with type II diabetes mellitus, he is not shown and does not contend to have had service in Vietnam. With regard to the Veteran's assertions of Agent Orange exposure in Thailand, VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q), directs that a detailed statement of the Veteran's claimed herbicide exposure be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. See VBA Fast Letter 09-20 (May 6, 2009). The M21-1MR also specifies when herbicide exposure may be conceded in certain cases where the Veteran served in Thailand during the Vietnam era. The VBA Fast Letter 09-20 provides updated information concerning herbicide use in Thailand during the Vietnam era. Previous development procedures that VBA was using for purposes of developing information concerning possible Agent Orange exposure in Thailand was replaced by a memorandum for the record that was jointly prepared by the Compensation and Pension Service and the Department of Defense. If a claimed herbicide exposure cannot be resolved based on the information contained in the memorandum, then follow-up inquiries must be sent to the JSRRC before the claim can be properly adjudicated. Id. Here, it does not appear that the required evidentiary development procedures have been followed and there is no evidence that the Veteran was responsible for working along the fenced perimeters of any base. The Court has consistently held that evidentiary development procedures provided in the 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 called for by M21-1). As the claimed herbicide exposure cannot be resolved based on the information contained in the memorandum, a follow-up inquiry must be sent to the JSRRC before the claim can be properly adjudicated. Thus, this matter must be remanded, including for compliance with the procedures set forth in the VA Adjudication Manual. THE VETERAN IS ADVISED that the record presently before the Board does not substantiate that he was exposed to any herbicides while on active service. His mere allegation is insufficient to substantiate his claimed in-service exposure to herbicides. If he is in possession of any SPECIFIC INFORMATION that would substantiate his claimed exposure, he should advise the RO. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran submit information pertaining to the approximate dates, location, and nature of his alleged herbicide exposure. 2. Contact the NPRC and, if unsuccessful, the service department, to obtain the Veteran's ENTIRE service personnel records. All efforts to obtain these records should be documented in the Veteran's claims file. If records are not available, the source should so indicate. Failures to respond or negative replies to any request should be noted in writing and also associated with the claims file. 3. After obtaining information as to the approximate dates, location, and nature of the Veteran's alleged exposure, compile a list of the Veteran's service dates and locations as well his contentions regarding exposure to herbicides in service. The Veteran's current contentions of record should be considered, including allegations of active service in Thailand from 1965 to 1966 at which time he was stationed at Camp Essayons, Thailand, building roads near the Cambodian border, and associated with the 538th Battalion. The Veteran's service information of record should also be considered, including his MOSs of a construction machine operator and an armor crewman during active service and service in Thailand from July 1965 to July 1966 as a construction machine operator with Company C and Company A of the 538th Engineering Battalion (C). This information should be forwarded to the JSRRC and a request of all evidence of exposure to either tactical or commercial herbicide in accordance with 38 C.F.R. § 3.159 (2012) should be made. This development should be undertaken pursuant to VA's Adjudication Procedure Manual, M21-1MR, with respect to veterans serving in Thailand during the Vietnam era. The requests should continue until the records are obtained; or, it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. If the RO/AMC is unable to locate those records, then a memorandum of the efforts in attempting to obtain those records should be associated with the claims file. 4. Readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ Vito A. Clementi 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).