Citation Nr: 1416521 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 09-20 075 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Harold H. Hoffman-Logsdon, III, Attorney ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from July 1966 to July 1968. This matter initially came before the Board of Veterans' Affairs (Board) on appeal from a January 2008 decision by the RO which denied the benefits sought on appeal. In March 2012, the Board denied service connection for diabetes mellitus, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2013 Memorandum Decision, the Court vacated the March 2012 Board decision and remanded the appeal to the Board for further action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As a result of the November 2013 Order of the Court, the Board has been directed to undertake additional action consistent with the Memorandum Decision. The Veteran contends that he sprayed Agent Orange (AO) along fence lines in the DMZ on a routine basis while serving in Korea, and believes that his diabetes mellitus was caused by herbicide exposure. In the Memorandum Decision, the Court found, in essence, that the Board's failure to investigate the Veteran's allegations that he was exposed to AO in Korea prior to April 1, 1968 - the date, according to the Department of Defense (DOD) that AO was first used in Korea, was inconsistent with VBA Adjudication Procedures Manual Rewrite (M21-1MR) and VA's stipulation when revising the presumptive regulations, that it would consider evidence that herbicides were used in or near the DMZ from an earlier date when adjudicating individual cases. See 76 Fed. Reg. 4245, 4246. The Court noted that M21-1MR provides that a request to the JSRRC (Joint Services Records Research Center) for verification of exposure to herbicides is appropriate where a veteran claims exposure in Korea, and his/her service was not between April 1, 1968 and August 31, 1971. See M21-1MR, pt IV, subpart ii, ch. 2, sec. C, subch. 10(p). Because the Board did not attempt to verify the Veteran's allegations, or provide adequate reasons and bases to explain why further investigation would be futile, the Court was unable to determine whether VA discharged its duty to assist. Thus, the Court vacated the Board's decision and remanded the appeal to address these deficiencies. Upon remand, the RO should undertake all appropriate development consistent with M21-1MR, to determine whether the Veteran was exposed to AO during his service in Korea. This should include obtaining any information concerning the Veteran's unit history (Company C, 1st Battalion, 38th Infantry) and its operational activities in Korea from January 1967 to March 1968. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Department of the Army or any other appropriate agency to obtain a unit history report for the Veteran's unit to determine its area of operations and activities from January 1967 to March 1968. The RO should also contact the DOD to determine when AO was first transported to, or stockpiled in Korea in general. All attempts to obtain the foregoing documents should be fully outlined according to applicable procedures, and any negative response to the requests for records should be committed to writing and made a part of the record. 2. The RO should then forward any additional evidence received pursuant to this remand and a copy of the Veteran's service personnel records, to the JSRRC for verification of whether AO was supplied to, or used in the area of his unit's operational activities 3. After the requested development has been completed, the RO should conduct any further development deemed necessary and readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ T. MAINELLI 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) (2013).