Citation Nr: 1331197 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-09 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1971 to November 1975. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. During his July 2011 hearing before the Board the Veteran testified that he had several symptoms of exposure to Agent Orange, including sleep apnea, heart problems, and joint problems. Accordingly, the issues of entitlement to service connection for sleep apnea, heart problems, and joint problems have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is currently seeking service connection for diabetes mellitus, hearing loss, and tinnitus. All three claims require remand for additional development. Diabetes Mellitus The Veteran is seeking service connection for his currently diagnosed diabetes mellitus. The Veteran has consistently asserted that his current diabetes is due to his exposure to herbicides, including Agent Orange, during his military service in North Korea near the demilitarized zone (DMZ). At his July 2011 hearing the Veteran testified he served at Camp Casey, Korea in "1971 and '72." He testified Camp Casey was "not far" from the DMZ and he took many trips to the DMZ while stationed there. Service connection may be granted on a presumptive basis for certain disease, including diabetes mellitus, associated with exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6). Additionally VA regulations provide that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange. 38 C.F.R. § 3.307(a)(6)(iv). Based on the evidence currently of record the Board is unable to determine if the Veteran served near the Korean DMZ during the presumptive period, that is before August 31, 1971. Accordingly remand is required to obtain the Veteran's service personnel records. Hearing Loss and Tinnitus The Veteran is also seeking service connection for bilateral hearing loss and tinnitus. The evidence of record establishes the Veteran is currently diagnosed with both conditions. However, review of the record suggests the presence of additional relevant records which are not associated with the Veteran's claims file. Specifically in her April 2010 written statement the Veteran's wife stated in late 2001 the Veteran had his hearing tested by Dr. Mark Frattali in Scranton, Pennsylvania. The Veteran's wife stated that due to the "distinct range" of hearing loss Dr. M.F. opined the Veteran's hearing loss and tinnitus were related to his military service. Accordingly, this private treatment record would be highly probative to the Veteran's claim. After careful review the Board finds the file does not contain any treatment records from a Dr. M.F., including the record referenced by the Veteran's wife. Therefore, remand is required in order to attempt to locate this record and associate it with the claims file. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's complete personnel file, to include any and all documents relating to his deployment to Korea in 1971 and 1972, and associate them with the claims file. All actions to obtain the requested records should be fully documented in the claims file. 2. After obtaining the necessary authorization from the Veteran obtain his medical records from Dr. Mark Frattali in Scranton, Pennsylvania from late 2001 and associate them with the claims file. All actions to obtain the requested records should be fully documented in the claims file. 3. Then, readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). _________________________________________________ MICHELLE L. KANE 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).