Citation Nr: 1325308 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 13-05 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether the severance of service connection for prostate cancer, diabetes mellitus and all secondary disabilities based on no in country Vietnam service was proper. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. 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 The Veteran appeals the severance of service connection for prostate cancer, diabetes mellitus and all secondary conditions. The evidence shows that the Veteran had one year of foreign service during the Vietnam War but no in country service. In a March 2009 rating decision, however, he was granted service connection for prostate cancer, diabetes mellitus, and all secondary conditions on a presumptive basis as a result of exposure to herbicides. In November 2011, the Veteran was sent notification of the intent to sever service connection based on clear and unmistakable error in the March 2009 rating decision. During a review of the Veteran's claims file for another claim, the RO discovered that service treatment and personnel records failed to show in country Vietnam service. The RO stated that they verified Vietnam service in the past based on data that the Veteran's unit the 3rd Reconnaissance Battalion was located in Vietnam from May 1-31, 1968. Further review, however, showed that he was never assigned to that unit. Rather, he was assigned to the 3rd FSR located at Camp Foster Okinawa. In the June 2012 rating decision, the RO found that they erroneously conceded Vietnam service. In turn, they severed service connection for prostate cancer, diabetes mellitus and all secondary conditions based on clear and unmistakable error in the March 2009 grant of such benefits. While the evidence of record demonstrates that the Veteran did not have in country Vietnam service, the Veteran also contends possible exposure to herbicides while stationed in Okinawa. To that end, he has presented testimony that he was stationed in Okinawa and could have been exposed to herbicides while there. He also presented several internet articles discussing herbicide exposure and Okinawa. The Board notes the service connection for prostate cancer, diabetes mellitus and all secondary conditions are not warranted on a presumptive basis. Service connection, however, may be continued if the Veteran can show herbicide exposure on a factual basis in a location other than the Republic of Vietnam. Although the record contains a formal finding that the evidence is insufficient to send to U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to continue to research the case, the Board notes that the record is devoid of a showing that the RO attempted to verify if the Veteran was exposed to Agent Orange while in Okinawa. To that end, in the July 2012 formal finding, it was stated that on May 13, 2011, a bottom up review of the claims file found no evidence to substantiate the Veteran was exposed to Agent Orange in Okinawa. The Board notes, however, that the May 13, 2011 review disclosed that there was no evidence to verify that the Veteran served in Vietnam. The review said nothing about possible exposure in Okinawa. VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in 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(n) directs that a detailed statement of the Veteran's claimed herbicide exposure be sent to the Compensation and Pension Service via e-mail, and that a review be requested of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. If the exposure is not verified, a request should be sent to the JSRRC for verification. In this case, it does not appear that such actions were undertaken by the RO. The Board concludes that this matter must be remanded for compliance with the procedures set forth in the VA Adjudication Manual. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran proper notice with respect to the claims based on herbicide exposure. In particular, this notice must include the procedural steps to verify such exposure as outlined in the M21-1MR. 2. Pursuant to the VBA Adjudication Manual, M21-MR IV.ii.2.C.10.o., the Veteran should be asked to provide the approximate dates, location, and nature of his alleged exposure to Agent Orange while stationed in Okinawa, Japan in an attempt to verify herbicide exposure on a factual basis in locations other than the Republic of Vietnam. 3. Thereafter, send a request via email to VAVBAWAS/CO/211/AGENTORANGE to evaluate the Veteran's alleged exposure to herbicides in service. This request should contain a detailed description of the precise allegations regarding the circumstances of the Veteran's claimed herbicide exposure based on the assertions of the Veteran. 4. Request that the JSRRC provide any available information which might verify whether or not the Veteran was exposed to herbicides during service, to specifically include while serving in Okinawa, as appropriate. 5. After taking any further development deemed appropriate, readjudicate the claims. If the benefit is not granted, provide the appellant and her representative a supplemental statement of the case and afford an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ MICHAEL D. LYON 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).