Citation Nr: 1330333 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 06-25 186A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from June 1966 to February 1970 and with the United States Coast Guard from April 1972 to August 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. In November 2009, the Board remanded this case for additional development, and the case was subsequently returned for further appellate review. In a November 2011 decision, the Board, in pertinent part, denied the Veteran's claim of entitlement to service connection for diabetes mellitus, type II. The Veteran appealed the Board's November 2011 decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a Joint Motion for Partial Remand in May 2012, requesting that the Court vacate the Board's November 2011 decision to the extent that it denied entitlement to service connection for diabetes mellitus. In a May 2012 Order, the Court granted the Joint Motion, vacating the Board's November 2011 decision with respect to the denial of the diabetes claim and remanding the case to the Board for compliance with directives that were specified by the Joint Motion. In December 2012, the Board remanded this case for additional development, and the case has been returned for further appellate review. During the course of this appeal, jurisdiction of this case was transferred to the Wilmington RO. 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 As noted in the December 2012 remand, the Board denied service connection for diabetes mellitus, holding that the evidence of record did not support a finding that the Veteran had ever set foot in Vietnam. The May 2012 Joint Motion for Remand found fault in the Board's denial of service connection on the sole basis that there was a lack of corroboration of service in Vietnam in the record. It directed the Board to consider application of 38 U.S.C.A. § 1154(a), which requires consideration be accorded to the time, place, and circumstances of service, particularly in light of the fact that the Veteran was assigned to the U. S. Air Force Pacific Postal and Courier Region in Japan. In order to consider application of 38 U.S.C.A. § 1154(a), the Board found that additional evidentiary development was required. The Board was unable to determine whether the U. S. Air Force Pacific Postal and Courier Region in Japan encompassed Vietnam in its region of authority, and it directed appropriate development on that matter. The Board further noted that the Veteran's service personnel records reveal his main military occupation while in the Air Force was administrative specialist with a related civilian occupation being general clerk. The Board was also unable to determine whether the Veteran's duties as an administrative specialist would also encompass acting as a courier. Based on the above, the Board found that a remand was required in order to determine the area of assignment of the U. S. Air Force Pacific Postal and Courier Region in Japan and whether it would include Vietnam, and also to obtain evidence regarding what duties an administrative specialist might perform in this command and whether there is a separate job description for courier. The requested development was attempted following the December 2012 remand. The Board finds, however, that further development that was suggested on remand has not been accomplished and must be attempted before this claim may be fully adjudicated. The record reflects that VA obtained the Veteran's service treatment records and service personnel records from the entirety of his Coast Guard service from April 1972 to August 1984. It also reflects, however, that the Veteran's service personnel records have not been obtained from his Air Force service dating from June 1966 to February 1970. A May 2013 Appeals Management Center memorandum notes the following: The veteran alleged flying in to Vietnam daily from Japan. That means he should have been on flight status orders. There are no Air Force (AF) personnel or medical records showing flight status. By comparison, subsequent service, in the Coast Guard (CG), includes active flight status. Orders and paper work abound in CG personnel and medical records showing flight status. All military services, including the CG, operate under the same DOD pay and benefits manual passed by Congress. If this veteran was assigned courier duty requiring daily flights to Vietnam that fact must be documented somewhere. Since the AF medical records we have do not show flight status, the last resort is to review AF personnel records. A review of several PIES requests failed to find that AF personnel records were ever provided. I recommend another PIES request be sent requesting, specifically, AF personnel records (1966-1970) including paper work, orders, and/or documents reflecting that this veteran was on flight status. Only with this information/evidence would the application of reasonable doubt be appropriate. The record includes a May 2013 Personnel Information Exchange System (PIES) request to the National Personnel Records Center (NPRC) in which it asked for "pages from the [Veteran's] personnel file showing unit of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decorations and official travel outside the U.S." from June 1966 to February 1970. There is no response to this specific request in the claims file. (VA did obtain, however, Coast Guard records from April 1972 through August 1984 that had been requested at the same time as the May 2013 PIES Air Force records request.) Given that the Air Force service personnel records have been identified by an AMC Decision Review Officer as being important to determining whether the Veteran served in Vietnam, the Board finds it necessary to remand this claim to obtain the identified records. Accordingly, the case is REMANDED for the following action: 1. Take the appropriate steps to locate any service personnel records from the Veteran's United States Air Force service between June 1966 and February 1970. The development procedures of 38 C.F.R. § 3.159(c)(2) must be followed. All efforts made to locate these records should be documented in the claims folder, and the Veteran should be notified of all steps taken to obtain these records and of any responses that are received. The Veteran should also be asked to submit any such records in his possession. 2. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ WAYNE M. BRAEUER 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) (2013).