Citation Nr: 1532974 Decision Date: 08/03/15 Archive Date: 08/11/15 DOCKET NO. 13-24 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from February 1969 to September 1970 and served in the Virgin Islands Army National Guard from October 1976 to December 2003. He died in December 2006. The appellant, who is the Veteran's surviving spouse, appealed a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction of the appellant's case is currently with the VA RO in San Juan, Puerto Rico. In September 2014, the Board remanded the appellant's case to the Agency of Original Jurisdiction (AOJ) to comply with her request to testify during a hearing before a Veterans Law Judge. In June 2015, she testified during a hearing conducted by videoconference before the undersigned. A transcript of the hearing is of record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The appellant asserts that the Veteran's fatal renal disease (of which diabetes mellitus was a contributing cause) was the result of Agent Orange exposure while serving at or near the Korean Demilitarized Zone (DMZ). A veteran who, during active military service, served in a unit that operated in or near the Korean DMZ between April 1, 1968 and August 31, 1971 shall be presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309 (2014). A list of service units that have been recognized by the Department of Defense as having served in areas along the Korean DMZ may be found in the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block p. Only these specific units stationed at the DMZ in Korea are presumed to have been exposed to Agent Orange or other herbicide. The Veteran's unit, the 348th Supply and Services, is not among those listed as having operated in or near the DMZ during the qualifying period. See June 25, 2013 Statement of the Case at page 23. The claims file does not include the Veteran's active duty service personnel records showing the places of his service. Such records are relevant to the claim, and VA has a duty to obtain them. 38 U.S.C.A. § 5103A(a)-(b) (West 2014). During her Board hearing, the appellant testified that after discharge from active service, the Veteran sought VA medical treatment when he lived "upstate" and/or in New York City. See Board hearing transcript at pages 8-9. He had problems that included gastrointestinal bleeding. Id. at 7 and 12. VA is required to help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A(b),(c) (West 2014). VA has not yet attempted to obtain the records identified at the hearing. The Veteran served in the Virgin Island Army National Guard from October 1976 to October 2003, when he retired due to health reasons that included hepatitis C, diagnosed in 2001. See Report of Separation and Record of Service (NGB Form 22) and appellant's May 2009 notice of disagreement (on VA Form 9) and June 2009 statement. In March 2010, the National Personnel Records Center indicated that he served until December 2003. The periods of active duty for training, if any, have not been confirmed. There are few service treatment records in the file for the Veteran's period of Reserve service other than October 1976, June1991, and August 1996 examination reports and some clinical records dated in 1999 and 2000. There is no indication that the records are unavailable. A September 1995 Statement of Medical Examination and Duty Status (VA From 2173) indicates that the Veteran was on active duty, described as "territorial active duty". His periods of active duty for training and inactive duty training have not been verified. Accordingly, the case is REMANDED for the following action: 1. Ask the appellant to authorize VA to obtain any records of the Veteran's treatment for hepatitis C and identify treatment at Federal or service department facilities. 2. Obtain the Veteran's service personnel records for his period of active duty from February 1969 to September 1970, showing the locations of his service and duties, and associate the records with the claims file. 2. Obtain the Veteran's service treatment records for his period of service in the Virgin Island National Guard from October 1976 to December 2003. 3. Verify all specific periods of the Veteran's active duty for training and inactive duty for training (not retirement points). 4. Efforts to obtain verification and service treatment records must continue until verification is received, unless it is reasonably certain that records verifying such service do not exist, or that further efforts to obtain such records would be futile. 5. Obtain all medical records regarding the Veteran's treatment for any disability at VA medical facilities in New York State since 1970. If additional information is required, ask the appellant to provide the information. If any requested records cannot be obtained, the appellant must be notified of the attempts made and of what additional actions will be taken with regard to her claim. 6. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). 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). _________________________________________________ Mark D. Hindin 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).