Citation Nr: 1337886 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 05-34 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active military service from June 1966 to May 1968. This matter comes to the Board of Veterans' Appeals (Board) from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. That decision denied the Veteran's application to reopen the previously denied service connection claim for diabetes mellitus, as well as the original claim for service connection for hypertension. The Veteran testified at a hearing at the RO before a Decision Review Officer (DRO) in June 2006. He also testified at a Board videoconference hearing at the RO before the undersigned Veterans Law Judge in November 2009. A transcript of each of these hearings is of record. The Board remanded this case to the RO, via the Appeals Management Center (AMC), in January 2010, May 2012, August 2012, and March 2013 for further development and adjudicative action. The May 2012 Board decision also reopened the Veteran's claim for entitlement to service connection for diabetes mellitus. Regrettably, the appeal will once more be 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 contends that he is entitled to service connection for diabetes mellitus because he had high blood sugar in service. Alternatively, he asserts that he is entitled to service connection based on exposure to herbicides, namely Agent Orange, while he was stationed in Korea in Battery A of the 2nd Battalion of the 71st Artillery from 1966 to 1967. He concedes that his battery was not located in an area in which herbicides were used. However, he contends that his duties took him to a Battery C for up to a week at a time, and that this batter was located along the DMZ where herbicides were regularly used by the South Korean Army. If a Veteran had active service in Korea between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, the Veteran will be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, and service connection based on such exposure will be presumed for certain conditions including diabetes mellitus, Type II. 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Here, service records reflect that the Veteran served in Korea from October 21, 1966, to November 20, 1967, in A Battery, 2nd Battalion, 71st Field Artillery. This was before the period beginning on April 1, 1968 in which DoD concedes that herbicides were used in the vicinity of the DMZ. Moreover, this unit is not on the list of units that the DoD has determined were in the area of the Korean DMZ during a period of herbicide use. These units are listed in a memorandum placed in the claims folder in July 2009 by the Joint Services Records Research Center (JSRRC) Coordinator. Finally, the National Personnel Records Center (NPRC) stated in April 2002 that there was no evidence of exposure to herbicides in the Veteran's service records. An additional search with the NPRC for morning reports for the Veteran's unit for the period of August 20, 1967 to November 20, 1967 was requested, which resulted in another negative reply. In June 2013, VA made a formal finding that all efforts to obtain these records have been exhausted, and the record is not available. It follows that the Veteran is not presumed to have been exposed to herbicides such as Agent Orange during service. Nevertheless, the Veteran may still establish that he was exposed to herbicides such as Agent Orange by submitting evidence of this exposure. In this regard, the Veteran has submitted a November 2004 letter from the Army Center for Unit Records Research (CURR) indicating that chemical herbicides were used in Korea along the southern boundary of the DMZ from 1967 and 1969. The letter states that the herbicides were sprayed by Republic of Korea (ROK) Armed Forces, with advice from U.S. Army personnel, with no known involvement in the application of herbicides by U.S. personnel. This letter provides corroboration of the Veteran's assertion that herbicides were sprayed in Korea when he was stationed there in 1967. The evidence indicates that the Veteran's unit was headquartered at Camp Red Cloud, which was approximately 28 miles from the DMZ zone. See, e.g., November 2004 letter from CURR, July 2009 letter from JSRRC. The Veteran has stated several times that he served at Kimpo Air Force Base, between Camp Red Cloud and the DMZ, and that this location was 8 miles away from the DMZ. He has also submitted a unit history for the 71st artillery indicating that A Battery was stationed at Kimpo-Op Air Force Base. Therefore, it is clear that the unit to which the Veteran was assigned was never closer than 8 miles from the southern boundary of the DMZ that CURR has confirmed was sprayed by ROK forces during the Veteran's deployment. However, the Veteran asserts that, despite his official station outside the DMZ, he made frequent trips through Seoul and into the DMZ, where it looked to him as though herbicides had been sprayed. See, e.g., hearing transcripts. In a June 2002 letter, the Veteran stated that he went to C Battery, 2nd Battalion, 71st Artillery in the DMZ once a month and was there for a week to 10 days doing maintenance. He also presented sworn testimony at the June 2006 RO hearing that he went to "Charlie" Battery at the DMZ on military errands, and that he went there on three or four occasions. He further testified that the vegetation in the vicinity of Charlie Battery appeared to have been sprayed because it was smaller than normal and was brown. Finally, the Veteran offered additional sworn testimony at a hearing before the undersigned Veterans Law Judge in November 2009, during which he again testified to having been sent on errands to Charlie Battery at the DMZ. See Transcript, page 4. Several attempts have been made to verify the Veteran's presence at C Battery near the DMZ. In July 2002, the RO requested that the National Personnel Records Center (NPRC) search morning reports for the Veteran's unit for his entire period of service in Korea, or from October 1, 1966, to November 1, 1967 for any remarks regarding the DMZ. The NPRC responded that the time search must be narrowed to 3 months or less. As noted above, an additional search with the NPRC for morning reports for the Veteran's unit for the period of August 20, 1967 to November 20, 1967 was also unsuccessful. In June 2013 VA made a formal finding that all efforts to obtain these records have been exhausted, and the record is not available. M21-1MR, Part IV, Subpart ii, 2.C.10.o, "Verifying Herbicide Exposure on a Factual Basis in Locations Other Than in RVN or Korean DMZ", states that after the JSRRC coordinator makes a formal finding that sufficient information required to verify herbicide exposure does not exist, a decision is to be made based on the evidence of record. The Veteran has submitted evidence that appears to support his contention that he was exposed to herbicides near the DMZ. He has submitted the November 2004 letter from CURR which verifies that ROK forces used herbicides along the southern boundary of the DMZ while he was stationed in Korea. The Veteran has twice provided sworn testimony stating that he was sent to C Battery on errands, and his written statement indicate that some of these errands took days to complete. The Veteran has testified that C Battery was located at the DMZ. An informal internet search confirms that this battery was located near Pobwan-ni, South Korea. Although the available evidence cannot confirm the Veteran's specific contentions, there is also no evidence that contradicts his contentions. After resolving all reasonable doubt in his favor, the Board finds the contentions credible, and concludes it at least as likely as not that he was exposed to herbicides such as Agent Orange during his service in Korea. Again, the Veteran is not entitled to a presumption of herbicide exposure, and therefore the relationship of his diabetes mellitus to herbicides also cannot be presumed. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). The September 2012 VA examiner expressed an opinion regarding a direct relationship between the Veteran's diabetes to active service. Unfortunately, an opinion as to the possibility of a relationship between diabetes mellitus and herbicide exposure was not obtained. The Board finds that such an opinion must be obtained prior to reaching a final decision in this matter. Similarly, the Veteran contends that he has developed hypertension secondary to his diabetes mellitus. He has not been provided with an examination for this disability, nor has an opinion been obtained in this matter. The Veteran should be scheduled for an examination in order to obtain such an opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his diabetes mellitus and his hypertension. All indicated tests and studies should be conducted. The claims folder must be provided to the examiner(s), and the examination reports must state that the claims folder and any electronic record have been reviewed. The examiner must assume that the Veteran was exposed to herbicides such as Agent Orange during service. The examiner should also note that Type 2 diabetes mellitus is a disease that has been associated with herbicide exposure, but that a presumption of service incurrence does not apply here, given the particular facts of this case. After the completion of the examination and review of the record, the examiner must attempt to express the following opinions: a) Is it as likely as not that the Veteran's diabetes mellitus was incurred due to his herbicide exposure during service? b) If the answer to (a) is yes, is it as likely as not that the Veteran's hypertension was caused by his diabetes mellitus? If not is it at least as likely as not that the hypertension has been aggravated (increased in severity beyond the natural progression) due to his diabetes mellitus? If the examiner determines that the hypertension was not caused but aggravated due to diabetes mellitus, the examiner must also attempt to identify a baseline severity of the hypertension prior to aggravation. c) If the answer to (b) is negative, is it as likely as not that the Veteran's hypertension was incurred in active service? If not, was the hypertension aggravated by active service? A copy of this remand should be provided to the examiner(s). The reasons and bases for all opinions should be provided in full. If the examiner(s) find that they are unable to express any portion of the requested opinion without resorting to speculation, the reasons and bases for that opinion should be provided, and any missing evidence that might enable the examiner to provide the opinion should be identified. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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).