Citation Nr: 1329706 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 10-10 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for diabetes mellitus (DM), Type II, to include as due to claimed inservice exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Veteran contends that service connection is warranted for DM due to herbicide exposure in Vietnam and Thailand. Pursuant to 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e), DM is one of the diseases which will be presumed to be associated with herbicide exposure during service in Vietnam; however, the RO was unable to verify service in Vietnam. Service in Vietnam for purposes of applying the herbicide exposure presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). On May 8, 2008, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in Haas v. Peake, 525 F.3d 1168, 1187-90 (Fed. Cir. 2008), where it confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. In addition, the Federal Circuit held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). See Haas, supra. Additionally, there is no presumptive service connection for claims based on servicing or working on aircraft that flew bombing missions over Vietnam. See VA Fast Letter 09-20 (May 6, 2009). The RO was unable to verify that the Veteran had Vietnam service. With regard to Thailand, the service personnel records reflect that the Veteran served in Thailand from June 1969 to June 1970. The Veteran and his representative indicated that the Veteran served in the United States Air Force at Ubon Royal Thai Air Force Base during the Vietnam Era. His DD Form 214 reflects that his military occupational specialty (MOS) was vehicle operator. Pertinent provisions of the VA Adjudication Manual set forth procedures that VA must follow to verify herbicide exposure in locations other than the Republic of Vietnam, particularly in Thailand and in other locations. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), (q) (October 4, 2010). Specifically, the M21-1MR provides that several items of development should be performed, including considering the Memorandum on "Herbicide Use in Thailand during the Vietnam Era," notifying the Veteran appropriately concerning Thailand herbicide exposure, and if necessary requesting verification of herbicide exposure from the United States Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q); see also VBA Fast Letter 09-20, "Developing for Evidence of Herbicide Exposure in Haas-Related Claims from Veterans with Thailand Service during the Vietnam Era." The M21-1MR also provides that several items of development should be performed when a veteran claims herbicide exposure in other areas, to include asking the Veteran for the approximate dates, location, and nature of the alleged exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o). In this case, the Memorandum on "Herbicide Use in Thailand during the Vietnam Era", which is a synopsis of a review by the VA Compensation and Pension Service, was issued to the Veteran. The JSRRC has not been contacted. The Memorandum notes that the Thailand Project Checo Southeast Asia Report does not report the use of tactical herbicides on allied bases in Vietnam, but does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Thus, if a Veteran's military occupational specialty or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides and herbicides. If the claim was based on servicing or working on aircraft that flew bombing missions over Vietnam, there was no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides over Vietnam did not occur everywhere and it was inaccurate to think that herbicides covered every aircraft and equipment associated with Vietnam. If the claim was based on general herbicide use within a military base, e.g., small scale brush or weed clearing activity along a flight line or around living quarters, there were no records of such activity involving tactical herbicides, only commercial herbicides. The Memorandum also noted that the JSRRC may be contacted for information regarding claimed exposure. Therefore, the Board finds that the RO/AMC should take steps to verify the Veteran's claimed exposure to herbicide agents in Thailand, via sending a request to JSRRC for verification. See VA Fast Letter 09-20. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must contact the Veteran and request that he provide a detailed description of the duties associated with his active duty service while stationed at Ubon Royal Thai Air Force Base. 2. The AMC/RO should undertake all required development as indicated by the M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), (q) and instructions in the VA Fast Letter 09-20, and send a request to the JSRRC in order to attempt to determine whether the Veteran was exposed to herbicides during his period of service in Thailand during his service at Ubon Royal Thai Air Force Base as a vehicle operator, based on the information of record. All documentation of such efforts and responses should be added to the claims file. The RO/AMC should also follow any recommendations provided by the JSRRC in obtaining relevant records from alternate sources. All requests and responses with respect to the above actions, both positive and negative, should be associated with the record. 3. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which 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 (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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).