Citation Nr: 1334853 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-00 661 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus Type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: South Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran had active military service from August 1959 to December 1981. He was assigned to Takhli Royal Thai Air Force Base (RTAFB), Thailand, from May 1966 to early 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the RO in Columbia, South Carolina that in pertinent part, denied service connection for diabetes mellitus, Type II. A personal hearing was held at the RO before the undersigned Acting Veterans Law Judge in August 2012, and a transcript of this hearing is of record. The Veteran submitted additional pertinent evidence to the Board at his August 2012 Board hearing, and waived initial RO review of this evidence. 38 C.F.R. § 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In this case, the Veteran asserts that he was exposed to the herbicide Agent Orange either during his service in Thailand from 1966 to 1967, or during a stop in Vietnam while on a flight to Thailand. He also contends that he was exposed to Agent Orange when he flew several air missions over Vietnam. He asserts that such herbicide exposure resulted in diabetes mellitus. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (2012). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2012). See also VAOPGCPREC 7-93 ("Service in Vietnam" does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace.) If a Veteran was exposed to an herbicide agent during active military, naval, or air service, multiple diseases and conditions, including Type II diabetes mellitus, shall be service-connected if such disease becomes manifest to a degree of 10 percent or more at any time after service, and provided that the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, and provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the evidence shows that the Veteran has a current diagnosis of Type II diabetes mellitus, an enumerated disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). He does not contend that Type II diabetes mellitus had its onset in service, but rather asserts that he was first diagnosed with diabetes in about 2006. See Board hearing transcript, page 3. Thus, at primary issue in this case is the determination of whether or not the Veteran is entitled to a presumption of exposure to herbicides based on service in Thailand or Vietnam during the Vietnam era. The Veteran's service personnel records do not reflect service in the Republic of Vietnam, and the National Personnel Records Center (NPRC) stated in October 2006 that it was unable to determine whether or not the Veteran had in-country service in the Republic of Vietnam. The Veteran has made several statements regarding his claimed exposure to herbicides and his presence in Vietnam. In a March 2009 written statement, he said he landed in Saigon (during service). In May 2010, he said he landed in Vietnam and delivered a plane in Thailand. Also in May 2010, he said that he was stationed in Takhli RTAB in May 1966, and flew missions over North Vietnam. He related that in June 1966, he ferried an airplane to Tulsa, Oklahoma for modifications, and then flew back to Takhli via a commercial airplane, and they stopped in Guam, Saigon, and Bangkok. He stated that while he lived at Takhli, he lived in a hooch across the road from the perimeter fence which was sprayed with herbicide to kill the foliage. In his September 2010 notice of disagreement, the Veteran stated that he flew 100 combat sorties over Vietnam and was exposed to Agent Orange, dioxin or other substances in a herbicide or defoliant. He noted that he was awarded the Vietnam Service Medal, among other citations. In January 2011, he said he flew approximately eight missions in Vietnam, and also landed in Saigon, Vietnam on or around July 8, 1966. During his August 2012 Board hearing, the Veteran testified that he was stationed at Takhli in Thailand, and that herbicides were used around the perimeter there. He said that they sat on the end of the runway on alert within 500 meters of the perimeter, that he crossed the perimeter many times during his stay at Takhli, and that his barracks were across the road from the perimeter, about 100 yards away. He contended that because of flooding in the area, herbicides that were sprayed on the perimeter washed onto the flight line. He also testified that he stopped in Vietnam in late June or early July 1966 on his way to Thailand. Specifically, he said he flew on a "mac" flight from Travis Air Force Base in California to Bangkok, Thailand, with a refueling stop in Tan Son Nhut Air Base in the Republic of Vietnam. See Board hearing transcript, pages 5-6. He also testified that while he was stationed in Thailand, he flew eight missions over the Republic of South Vietnam, but the aircraft never landed in South Vietnam. He stated that he was a navigator, and these were electronic reconnaissance missions. At the hearing, the Veteran and his representative contended that an attempt should be made to verify that he stopped in Tan Son Nhut Air Base, Vietnam during a "Mac" flight from California to Thailand in late June or early July 1966. A review of the claims file reveals that this has not been done, and the Board finds that a remand is required to attempt to verify the Veteran's claimed presence in the Republic of Vietnam during the Vietnam era. With regard to exposure to herbicides outside of Vietnam, VA's Adjudication Procedures Manual, M21-1MR states that if a Veteran served with the Air Force at several RTAFBs, including Takhli, during the Vietnam Era and was stationed near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure should be conceded. M21-1MR, IV.ii.2.C.10.q. In that directive, VA's Compensation Service determined that "a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thai military bases." Shortly prior to the July 2010 rating decision, the RO obtained a Veterans Benefits Administration memorandum. The memorandum notes that tactical herbicides were tested at Pranburi Military Reservation in Thailand in 1964. The memorandum also notes that other allied bases in Thailand used non-tactical (commercial) herbicides within fenced perimeters. The memorandum states, "[t]herefore, if a veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides." The memorandum also notes that if the claim is otherwise reasonable, the ROs should ask the JSRRC to search for corroborating evidence of herbicide exposure. The record does not reflect that the RO contacted the U.S. Army and Joint Service Records Research Center (JSRRC) for such a search. Although the July 2010 rating decision and November 2010 statement of the case describe a May 1, 2009 memorandum from JSRRC as "regarding herbicide exposure based on contact with aircraft," the Board notes that the memorandum that is on file actually relates to the use of herbicide agents aboard Navy and Coast Guard ships, and is thus irrelevant in this case. In this case, the Veteran has stated, and the evidence confirms, that he was a navigator while he was stationed at Takhli RTAFB. His service personnel records show that he was assigned to EB66C, 41st Tac R Sq, Takhli Air Base from May 1966 to early 1967 as a navigator-bombardier, with secondary duties as an assistant squadron vehicle control officer. In light of the Veteran's recent testimony regarding his proximity to the perimeter at Takhli RTAFB and possible herbicide exposure there, the Board finds that the RO/AMC should attempt to verify his assertions of herbicide exposure in Thailand by contacting the U.S. Army and Joint Service Records Research Center (JSRRC). The JSRRC should be asked to verify whether the Veteran or his unit regularly had contact with the base perimeter. Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the Veteran's claimed exposure to herbicides in Thailand at Takhli RTAFB. Specifically, the available information regarding the approximate dates, location, and nature of the Veteran's alleged herbicide exposure should be submitted to the JSRRC, and any other appropriate agency (such as the Air Force Historical Research Agency (AFHRA)), for verification of the Veteran's asserted exposure to herbicides. 2. Attempt to verify the Veteran's claimed presence in Vietnam during a refueling stop. The Veteran has stated that he was on a "Mac" flight from Travis Air Force Base in California to Bangkok, Thailand, which made a refueling stop in Tan Son Nhut Air Base in the Republic of Vietnam in late June or early July 1966. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative and give them an opportunity to respond. Then, the case should be returned to the Board for appellate review. 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). _________________________________________________ KELLI A. KORDICH Acting 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).