Citation Nr: 1342908 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-25 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim. In a May 2011 Board decision, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in an April 2012 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. As will be explained below, the matter must again be REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the appeal must be remanded for further development. The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for several years and it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claim. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As the Board's Remand instructions in the present appeal have not been complied with, the case must be remanded again so that this may be accomplished. In the May 2011 Board decision, the claim was remanded in order for the AMC to submit an inquiry to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the Veteran's assertions of exposure to herbicides while stationed in Thailand. The AMC submitted the inquiry in January 2012; the March 2012 response from the JSRRC was as follows: After extensive research, we were unable to locate 1967 and 1968 historical reports submitted by the Tactical Air Warfare Center. However, unit histories and supporting documents of Air Force units are in the custody of the Air Force Historical Research Agency, Maxwell Air Force Base, Alabama, 36112. These files often include historical reports. You should write to that office for further information concerning these records. Also, to date, available historical information does not document Agent Orange or tactical herbicide spraying, testing, or storage at Korat Air Force Base, Thailand, during the 1967 and 1968 time frame. The AMC subsequently issued a March 2012 Memorandum finding indicating that they "are unable to verify the Veteran's alleged herbicide exposure based on the information contained in the claims file . . . All efforts to obtain the needed information have been exhausted, and further attempts would be futile." However, contrary to the March 2012 conclusions of the AMC, the Board finds that further efforts must be made in order to attempt to verify the Veteran's alleged herbicide exposure. Critically, the March 2012 response from the JSRRC specifically instructed the AMC to contact the Air Force Historical Research Agency for further information concerning unit histories and historical reports. There is no indication that the AMC submitted such a request. The Board therefore finds that its May 2011 remand instructions were not followed by AMC and, as such, additional development is required in order to ascertain whether the Veteran was exposed to herbicides while stationed in Thailand. This matter should be remanded allow for further inquiry. Accordingly, the case is REMANDED for the following action: 1. VBA should submit a request to the Air Force Historical Research Agency, Maxwell Air Force Base, Alabama, 36112, for any information that might corroborate the Veteran's claimed herbicide exposure during his period of service in Thailand based on the information of record. All documentation of such efforts and responses should be added to the claims file. VBA should also follow any recommendations provided by the Air Force Historical Research Agency in obtaining relevant records from alternate sources. All requests and responses with respect to the above actions, both positive and negative, should be associated with the VA claims file. 2. Thereafter, readjudicate the claim on appeal. If the benefits sought remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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 or by the Court 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).