Citation Nr: 1513026 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 07-00 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2009, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board denied this appeal in a December 2010 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2011, the Court granted a joint motion for remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the December 2010 Board decision, and remanded the matter for compliance with the terms of the JMR. To comply with the terms of the JMR, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development in February 2012. The AOJ subsequently returned the case to the Board. The appeal is again REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Service connection can be presumed for diabetes if a Veteran was exposed to an herbicide agent, such as Agent Orange, during active service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran alleges that he was exposed to Agent Orange while stationed at Fort Polk, Fort Bragg, and Fort Benning, to include being sprayed with herbicides while on field duty near "Tiger Ridge" at Fort Polk, and participating in the loading of Agent Orange on trucks during service at Fort Bragg. Specifically, he stated that he was exposed to herbicides from December 1967 to May 1968 while stationed at Fort Polk; from May 1968 to June 1968 while stationed at Fort Benning; and from August 1968 to December 1968 while stationed at Fort Bragg. He also reported exposure while training at Camp Garcia and Fort Campbell. In February 2012, the Board remanded this case for additional development. Another remand is necessary because there has not been substantial compliance with the Board's Remand directive to obtain the Veteran's unit records. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the February 2012 Remand, the Board directed the AOJ to obtain the Veteran's unit records for his periods of service at Fort Polk, Fort Bragg, and Fort Benning and to then complete the development required under the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1MR, Part IV.ii.2.C.o for veterans alleging herbicide exposure in areas other than Korea and Vietnam. The AOJ did not make sufficient efforts to obtain the Veteran's unit records for his periods of service at Fort Polk, Fort Bragg, and Fort Benning. The AOJ sent a letter to the Veteran in May 2012 asking him to "[p]lease submit any service/unit records you may have." The AOJ submitted a Personnel Information Exchange System (PIES) request for his service personnel file in May 2012 and the personnel file was provided in June 2012 and is associated with the claims file. Obtaining the Veteran's service personnel file does not comply with the Board's directive to obtain his unit records. Requesting that the Veteran provide the unit records also does not comply with the Remand directive because VA has a statutory duty to assist the Veteran in obtaining relevant records. See 38 U.S.C.A. § 5103A(c). As to records held by a Federal department or agency, VA's efforts to obtain the records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's unit records for his periods of service at Fort Polk, Fort Bragg, and Fort Benning. Efforts to obtain the unit records must continue until the records are obtained or it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. If the records are not obtained, obtain negative replies and associate the replies with the claims file. Then, complete the development required under the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1MR, Part IV.ii.2.C.o for veterans alleging herbicide exposure in areas other than Korea and Vietnam. All steps mandated in the M21-1MR must be completed and documented in the claims file, to include but not limited to asking the Veteran for additional identifying information, if necessary, and confirming herbicide use or exposure with the Compensation Service, and/or JSRRC. Formal findings regarding herbicide exposure must be made. 2. After completion of the above, if (and only if) there is an indication of an association between the Veteran's service and his diabetes mellitus, ensure that he is scheduled for a VA examination to determine the nature and etiology of his diabetes mellitus, type II. The claims file and a copy of this Remand must be provided to the examiner and he or she must indicate review of these items in the examination report. The examiner is asked to indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes had onset during or as a result of service. All necessary testing should be conducted and all opinions must be supported by rationale. 4. Then, readjudicate the Veteran's claim. This is a complex case from the Veterans Court. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and allow an appropriate opportunity for response before returning the case to the Board, if otherwise in order. The Veteran 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 2014). _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).