Citation Nr: 1326342 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-05 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Des Moines, Iowa, VA Regional Office (RO). In connection with his appeal, the Veteran was afforded a hearing before a decision review officer (DRO) at the RO in October 2008. In addition, he testified before the undersigned Veterans Law Judge in Washington, D.C., via videoconference in April 2011. A transcript of each of the hearings has been associated with the claims file. The Board remanded the claim in October 2011 for further development. 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 is seeking service connection for diabetes mellitus, type II on the basis that he believes his disability is related to his alleged exposure to herbicides during his military service in Korea from May 1965 to June 1966. In the Board's October 2011 remand, in pertinent part, we directed the RO to send a letter to the Veteran and his representative requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO sent a letter, also dated in October 2011, to the Veteran specifically requesting that he provide any additional details concerning his alleged herbicide exposure, to include the approximate dates (within a two-month specific date range). The Veteran responded in November 2011 and provided the approximate dates in which his purported herbicide exposure occurred; the Veteran asserts that he was exposed to herbicides between the months of August 1965 to May 1966. See Veteran's November 2011 Statement. We additionally directed on remand that after the RO obtained the Veteran's approximate dates of alleged herbicide exposure, that the information be forwarded to the Joint Service Records Research Center (JSRRC) to verify the Veteran's alleged herbicide exposure. After receiving the Veteran's November 2011 response, the RO submitted requests to the JSRRC in June 2012 and in November 2012. To date, the JSRRC has not responded. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall, 11 Vet. App. 268. It is thus necessary, once again, to remand the Veteran's claim in order to complete the requested development. Accordingly, the case is REMANDED for the following action: 1. The AMC must comply with the provisions of VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.n and attempt to verify the Veteran's claimed herbicide exposure as follows: a. Compile a list of the Veteran's service dates and locations as well as his contentions regarding exposure to herbicides during service. Forward this information to the JSRRC. Request all evidence of exposure to herbicides in accordance with 38 C.F.R. § 3.159 (2012). The RO is to advise the JSRRC that the Veteran's claim cannot be adjudicated without a response from the JSRRC. If the JSRRC is unable to locate sufficient evidence to verify the Veteran's herbicide exposure or non-exposure, a response from the JSRRC indicating that attempts were made to verify the alleged herbicide exposure is requested. 2. Then the issue on appeal should be readjudicated. If the benefit sought is not fully granted a supplemental statement of the case should be issued to the Veteran and his representative and they should be afforded an opportunity to respond thereto. 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). _________________________________________________ MILO H. HAWLEY 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).