Citation Nr: 1320550 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-03 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, including as due to herbicide exposure. 2. Entitlement to service connection for hyperlipidemia, including as due to herbicide exposure. 3. Entitlement to service connection for erectile dysfunction, including as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from July 1966 to July 1968. These claims come before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board sincerely regrets the delay associated with this remand, but additional action is necessary before the Board adjudicates these claims. See 38 C.F.R. § 19.9 (2012). The Veteran asserts that he is entitled to service connection for diabetes mellitus, type II, hyperlipidemia and erectile dysfunction, all including as due to herbicide exposure. He claims that he was exposed to Agent Orange while stationed in the demilitarized zone (DMZ) in South Korea from 1967 to 1968 as part of the 2nd Battalion, 9th Infantry Division. A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence indicating otherwise. 38 U.S.C.A. § 1116(f) (West 2002). Under 38 C.F.R. § 3.307(a)(6)(iv), effective February 24, 2011, VA extended the presumption of herbicide exposure to veterans in certain units who served in an area in or near the Korean DMZ between April 1, 1968 and August 31, 1971. The units that VA and the Department of Defense (DOD) determined served in this area include the 2nd Battalion, 9th Infantry Division. See M21-1MR, Part IV, subpart ii, Chapter 2, section C. The Veteran's service personnel records confirm that he served in the unit and area alleged, but from January 6, 1967 to March 2, 1968. According to a Record of Assignments, he began his transfer from Korea to the continental United States (CONUS) on March 2, 1968 and arrived at Fort Campbell in Kentucky in the United States on April 8, 1968. According to the Veteran, during the interim period, while "transitioning", he was still in Korea and, as such, should be presumed to have been exposed to Agent Orange. He claims that, in any event, prior to his transfer, he recalls being in locations where all of the vegetation had died. The question at issue in this case is whether, from April 1, 1968 to April 7, 1968, while in the process of transferring, the Veteran remained in an area in or near the Korean DMZ, as alleged. At that time period, he was still attached to the 2nd Battalion, 9th Infantry Division. This matter needs to be researched before the Board can respond to the Veteran's assertion in this regard. In addition, according to Virtual VA, since the RO issued its Statement of the Case in December 2009, VA associated pertinent VA treatment records with the Veteran's virtual file. The RO has not reviewed these records in support of these claims and the Veteran has not waived his right to have the RO do so. Such action should be taken on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he clarify his whereabouts from April 1 to April 7, 1968. 2. Contact the service department for the purpose of determining whether, while transferring from the Korean DMZ to CONUS during the time period at issue (March 2, 1968 to April 8, 1968), the Veteran remained in an area in or near the DMZ, or moved elsewhere. Obtain and associate with the claims file a written response to this inquiry and, if available, supporting documentation of the Veteran's whereabouts during the transfer period from March 2, 1968 to April 7, 1968. 3. Thereafter, readjudicate the Veteran's claims based on all of the evidence of record, including that which VA associated with Virtual VA since December 2009. If any benefit sought on appeal is not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ P.M. DILORENZO 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).