Citation Nr: 1334605 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-29 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus type II, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from April 1972 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (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 After careful review of the record, the Board finds that the Veteran's claim for service connection for diabetes mellitus must be remanded for further development. In this case, the Veteran's theory of entitlement is one of presumptive service connection based on herbicide exposure in Thailand under 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). VA has developed specific evidentiary procedures to verify whether a veteran was exposed to herbicides in locations other than Vietnam. VA's Adjudication Procedure Manual Rewrite, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q) was adopted for application when the veteran alleges exposure to herbicides in Thailand. It directs, in pertinent part, that if a veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs) as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, then herbicide exposure is to be conceded. Id. If herbicide exposure cannot be conceded based upon the above described facts, a copy of the Compensation and Pension (C&P) Service's "Memorandum for the Record" is to be placed in the veteran's claims file and the veteran is to be asked for the approximate dates, location, and nature of the alleged herbicide exposure. If the veteran fails to furnish the requested information, the claim will be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. The claim may then be decided based on the evidence of record. Id. If the veteran furnishes the requested information within 30 days, the information is to be reviewed along with the other evidence of record (including the "Memorandum for the Record") and a determination is to be made whether herbicide exposure can be established. If such exposure cannot be established and the veteran has not provided sufficient information to permit a search by the JSRRC, the claim will be referred to the JSRRC coordinator to make a formal finding that sufficient information to verify herbicide exposure does not exist. The claim may then be decided based on the evidence of record. Id. However, if herbicide exposure cannot otherwise be established and the veteran has provided sufficient information to permit a search by the JSRRC, a request is to be sent to the JSRRC for verification of herbicide exposure. Id. The Veteran's DD Form 214 shows that April 1972 to June 1973, he served in the U.S. Air Force, that his military occupational specialty was "specl interg avionics," and that he had 3 months of foreign and/or sea service. His service treatment records show that he received treatment at Takhli RTAFB in May 1973, and it may be presumed based on his period of active duty service that he was stationed at Takhli RTAFB from March 1973 to May 1973. Postservice private treatment records include a September 1986 report that found elevated glucose levels, although a January1993 found abnormally low glucose levels. Postservice VA treatment records show that the Veteran was diagnosed with new onset diabetes in January 2009. At the September 2011 Decision Review Officer (DRO) hearing, the Veteran testified that he worked on airplanes on the flight line while stationed at Takhli RTAFB, and that he saw a substance being sprayed while stationed there, although he does not know what it was. In light of the above evidence and the evidentiary procedures provided in VA's Adjudication Procedure Manual Rewrite, the Board finds that herbicide exposure cannot be established as it is not clear his duties while stationed at Takhli RTAFB involved serving in a capacity that placed him near the air base perimeter. Nonetheless, he has provided sufficient information to permit a search by the JSRRC. In this situation, VA's Adjudication Procedure Manual Rewrite instructs the matter is to be submitted to the JSRRC for verification of herbicide exposure. The United States Court of Appeals for Veterans Claims (Court) has consistently held that evidentiary development procedures provided in the Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by M21-1); see also Castellano v. Shinseki, 25 Vet. App. 146, 151, n.2 (2011) (stating the Court has held that substantive procedural provisions favorable to a veteran and contained outside the Code of Federal Regulations are binding on the Secretary) (citing Patton, 12 Vet. App. at 282). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of his duties while stationed at Takhli RTAFB and whether such duties placed him near the air base perimeter. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. The RO should (pursuant to VA's Adjudication Procedure Manual Rewrite, M21-1MR, with respect to veterans who served in Thailand during the Vietnam Era) forward a list of the Veteran's service dates and duty locations as well as his contentions regarding the nature of his exposure to herbicides in service to JSRRC and request verification of his exposure to herbicides. 3. Then readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case and given a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).