Citation Nr: 1317553 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-46 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as due to exposure to Agent Orange. 2. Entitlement to service connection for a right eye disorder, including as due to diabetes mellitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from June 1963 to January 1967. He also had subsequent service in the Air National Guard. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from February 2009 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that, in pertinent part, declined to reopen the Veteran's previously denied claims for service connection. In August 2011, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing was submitted. In a July 2012 decision, the Board reopened the Veteran's previously denied claims for service connection for diabetes mellitus, foot fungus, a right eye disorder, and a pollen allergy, granted his claim for a foot fungus/ingrown toenails disorder, and denied his claim for a dental disorder for VA compensation purposes. At that time, the Board remanded the Veteran's claims for service connection for diabetes mellitus, a right eye disorder, and allergies, to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. In a January 2013 rating decision, the RO granted service connection for allergic rhinitis (claimed as a pollen allergy). The RO's action represents a full grant of the benefits sought as to the Veteran's claim for service connection for a pollen allergy. 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 contends, in pertinent part, that he was exposed to Agent Orange in service that caused or contributed to his post service diagnosis of, and treatment for diabetes mellitus. Governing law provides for presumptive service connection based on exposure to herbicides/Agent Orange in service for certain enumerated diseases (including diabetes mellitus). A veteran who served on land in Vietnam is presumed to have had such exposure. VA has extended this presumption to veterans who served in other areas where Agent Orange is known to have been used. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307, 3.309 (2012). The Veteran here is not shown to have served in Vietnam, and does not allege otherwise. Rather, his theory of entitlement is that his diabetes mellitus stems from his exposure to Agent Orange while he was stationed in Guam from 1965 to 1967. Unfortunately a review of the evidence in this case reveals that the RO did not comply with the Board's July 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). While some of the ordered development was accomplished, such as obtaining the Veteran's service personnel records (documenting his service in Guam from August 1965 to January 1967), and records of his treatment by J.S.D., M.D. (added to the Veteran's Virtual VA electronic file), other action requested by the Board was not completed. Specifically, in its remand, the Board directed that the RO provide a detailed statement of the Veteran's claimed herbicide exposure at Andersen Air Force Base in Guam during his service to the VA Compensation and Pension Service (C & P) and request a review of the Department of Defense (DoD) inventory of herbicide operations to determine whether herbicides were used, tested, or stored, as alleged. The Board further directed that "[i]f the exposure is not verified, a request must then be sent to the [Joint Services Records Research Center (JSSRC)] for verification of the Veteran's possible Agent Orange exposure at Andersen Air Force Base in Guam, to include from 1963 to 1967 (emphasis added). If the JSSRC determines that there is insufficient information to verify the Veteran's claimed exposure", a formal finding should be made and associated with the records that were used, tested or stored. According to an August 2012 RO record, a Military Specialist was directed to contact the C&P service and request a review of the DoD inventory for the alleged exposure. If the exposure was not verified, a request must be sent to the JSRRC for verification of the Veteran's possible Agent Orange exposure in Guam. This was not accomplished. Stegall; see also infra It appears that the RO Military Specialist contacted the Manager of the Pacific Islands Office, of VA, evidently, although this is not clear, who referred the inquiry to the Guam Program Manager. An undated written statement from the Guam Program Manager indicates that he was unfamiliar with any tactical use of pesticides in Guam and never saw any reports identifying the presence of Agent Orange on Guam. In a January 2013 memorandum, the RO Military Specialist concluded that the Veteran's exposure to herbicides in Vietnam and Guam could not be corroborated. It was noted that the Veteran's personnel and service treatment records confirmed that he was stationed in Guam, but a review of domestic locations of tactical herbicide use and storage provided by the Agent Orange mailbox did not document use or storage in Guam. The Veteran's claim was not forwarded to the JSRRC "due to lack of credible supporting evidence". In this case, the RO did not specifically submit the Veteran's case to the JSRRC for verification of his possible Agent Orange exposure at Andersen Air Force Base in Guam during his service, to include from 1963 to 1967, as directed by the Board. Stegall. Accordingly, the case is REMANDED for the following action: 1. A request must be sent to the JSRRC for verification of the Veteran's possible Agent Orange exposure at Andersen Air Force Base in Guam during his military service, to include from 1965 to 1967. If the JSRRC determines that there is insufficient information to verify the Veteran's claimed exposure, a formal finding should be made in this regard and associated with the record. 2. Then, if the Veteran's exposure to Agent Orange in Guam in service is deemed verified, schedule him for a VA examination to obtain an opinion as to whether it is at least as likely as not that his current diabetes mellitus is related to exposure to Agent Orange in Guam in service. A rationale must be provided for the opinion offered. The claims folder must be made available to the examiner in conjunction with the examination. 3. If, and only if, the Veteran's diabetes is found to be related to active service, then the examiner should comment as to whether the Veteran has a bilateral or right eye disorder. a. If so, the examiner should indicate whether any diagnosed eye disorder is likely as not (50 percent probability or greater) related to the Veteran's active service or the result of diabetes mellitus disability. b. If not, is it at least as likely as not aggravated by diabetes mellitus disability? If aggravated, what permanent, measurable increase in current eye pathology is attributable to the diabetes mellitus disability? This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. c. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. The report of the examination should be associated with the Veteran's claims file. 4. After completing the requested actions above, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claims addressed in this remand by evaluating all evidence obtained after the last supplemental statement of the case (SSOC) was issued. If any benefit sought on appeal remains denied, the RO/AMC must furnish the Veteran and his representative an appropriate SSOC and allow them a reasonable period of time to respond. The appellant 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). CONTINUED ON NEXT PAGE 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) (2012).