Citation Nr: 1326185 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-16 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to Agent Orange (AO) exposure. 2. Entitlement to service connection for skin cancer, claimed as due to Agent Orange (AO) exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran provided testimony at an August 2009 hearing before the undersigned at the RO. A transcript of the proceeding has been reviewed and is associated with the claims file. The Board remanded the claim in December 2009 and in January 2012. Review of the record indicates that the undertaken development is insufficient to adjudicate the Veteran's claim at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 contends that he is entitled to service connection for type II diabetes mellitus and skin cancer due to exposure to Agent Orange during his military service in Okinawa, Japan. See Veteran's February 2006 Claim. In a January 2012 remand, in pertinent part, the Board directed the AMC/RO to "contact any appropriate records repositories in an attempt to obtain any additional personnel records of the Veteran, as well as any records from the U.S. Army base in Okinawa, Japan involving Agent Orange spillage during the time period of January 1967 through June 1968." In July 2012, the RO submitted a request to the U.S. Army and Joint Services Records Research Center (JSRRC) regarding the Agent Orange spillage asserted by the Veteran. In November 2012, the JSRRC indicated that the available historical records "do not document the spraying, testing, transporting, storage or usage of Agent Orange or other tactical herbicides in Okinawa during the period of December 1, 1966 to June 30, 1968;" however, "the historical information available to us documents that in the 1960s, the U.S. military had a major chemical weapons stockpile on the island of Okinawa." The JSRRC provided contact information to the U.S. Army Medical Research Institute of Chemical Defense (USAMRICD) and the Department of the Army, Surgeon General to inquire whether the Veteran possibly had contact with the chemical weapons stockpile in Okinawa. See November 2012 JSRRC Response. The RO contacted the USAMRICD but requested information related to Agent Orange spillage only; the request did not refer to chemical weapons. See January 2013 Letter to the U.S. Army Medical Research Institute of Chemical Defense; see also January 2013 Letter to the Department of the Army, Surgeon General. In a July 2013 informal hearing presentation, the Veteran's representative argues that the November 2012 JSRRC response raises an alternative theory of entitlement for the Veteran and that VA failed to fulfill its duty to assist the Veteran by not obtaining the information related to chemical weapons stored in Okinawa, Japan in the 1960s. See 38 U.S.C.A. § 5103A. VA must consider such a theory of entitlement if it is raised by the record. See 38 U.S.C.A. § 5103A. On remand, appropriate steps must be taken to develop that theory. Accordingly, the case is REMANDED for the following action: 1. Contact the USAMRICD to verify whether the Veteran was in contact with chemical weapons in Okinawa, Japan from January 1967 through June 1968. If the Veteran was in contact with chemical weapons, the type of chemical weapons should be identified. If no additional records are available, that fact should be documented in the claims folder. 2. If and only if it is confirmed that the Veteran was exposed to chemical weapons while stationed in Okinawa, Japan, the Veteran should be scheduled a VA examination to determine the current nature and likely etiology of diabetes mellitus and any skin cancer condition. The claims folder should be made available to the examiner for review. The examiner's attention should be directed to this remand and the examiner must answer the following questions: (a) Does the Veteran have a current diagnosis of diabetes mellitus? If so, is it at least as likely as not (50 percent probability) that the Veteran's diabetes mellitus occurred during service or is otherwise attributable to in-service exposure to herbicides or chemical weapons? (b) Does the Veteran have a current diagnosis of skin cancer? The examiner must clarify the diagnosis. If so, is it at least as likely as not (50 percent probability) that any currently diagnosed skin cancer occurred during service or is otherwise attributable to in-service exposure to herbicides or chemical weapons? The examiner is to also consider the Veteran's removed cancerous nasal growth, which he alleges developed during service. The examiner is requested to provide a complete rationale for any opinion expressed. 3. Then, readjudicate the Veteran's claims. If the claims remain denied, provide the Veteran and his representative a supplemental statement of the case (SSOC). The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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).