Citation Nr: 1542551 Decision Date: 10/02/15 Archive Date: 10/13/15 DOCKET NO. 14-08 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for diabetes mellitus type II as a result of herbicide exposure. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1971 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran seeks to establish his entitlement to service connection for diabetes mellitus, type II. He primarily asserts that his diabetes is due to herbicide exposure in service. See 38 C.F.R. § 3.309(e) (listing Type 2 diabetes mellitus as a disease presumptively due to herbicide exposure). Specifically, the Veteran alleges that he was exposed to herbicides during service in Vietnam, Thailand, and Guam. See September 2010 Statement in Support of Claim. VA's Adjudication Procedures Manual, M21-1, provides various procedures to develop claims based on alleged herbicide exposure in different locations (other than Vietnam and Korean service as specified at 38 C.F.R. § 3.307(a)(6)). See M21-1 at IV.ii.1.H. As to Vietnam, the Veteran states that he went to DaNang Air Force Base (AFB) or Phan Rang in July 1974 or August 1974. See September 2010 Statement in Support of Claim. He states that, after stopping at the 7th Air Force, United States Pacific Air Force, 3rd Tactical Fighter Squadron, and 3rd Tactical Fighter Wing at DaNang, he was sent to the 7th Air Force headquarters at Ton Son Nhut AFB before leaving for Thailand a week later. See December 2010 Statement in Support of Claim. The Veteran has stated that he spent a few days in Saigon or at the Hotel Saigon. See November 2010 Memorandum; December 2010 Statement in Support of Claim; September 2012 Notice of Disagreement. The Veteran's DD 214 and service records do not show service in Vietnam. As such, the AOJ undertook additional development by requesting information from the Personnel Information Exchange System (PIES) and researching the unit history for the 3rd Tactical Fighter Squadron for the time period from July 1974 through December 1974. As such, the AOJ has properly followed the procedures in attempting to verify the Veteran's claimed herbicide exposure in Vietnam. See M21-1 at IV.ii.1.H.1.e. As to Thailand, the Veteran states that he was exposed to herbicides at the Korat Air Force Base (AFB) during the 1973 to August 1975 time period. See July 2010 Claim (1973-1974); September 2010 Statement in Support of Claim (September 1964-August 1975). A performance report for September 1974 to August 1975 places the Veteran at the Korat AFB as a corrosion control specialist. The Veteran also states that he visited U-Tapao, Thailand, sometime from June 1973 to December 1973. VA's Adjudication Procedures Manual, M21-1, provides that special consideration of herbicide exposure should be extended to Veterans who served at the fenced-in perimeter of Thailand military bases in specific occupations. See M21-1 at IV.ii.1.H.5.a. If the Veteran did not serve in one of the specified occupations, the Veteran should be asked for the approximate dates, location, and nature of the alleged herbicide exposure. Id. If the Veteran provides the information, and herbicide exposure can be acknowledged as a result of the review, any necessary development should be completed before referring the claim to the rating activity. Id. If herbicide exposure cannot be acknowledged, the claim should be decided based on the evidence of record. Id. Here, the Veteran did not work in one of the specified occupations for presumed exposure in Thailand and there is nothing in the record to indicate that the Veteran worked on or near the airbase perimeter. See M21-1 at IV.ii.1.H.5.b. Thus, the AOJ followed the procedures set forth in M21-1 and obtained details from the Veteran on his alleged herbicide exposure. The Veteran stated that he was in Korat from September 1974 to August 1975 working as a corrosion control specialist where he was in charge of the C130 wash rack and painted equipment used to load and unload barrels of Agent Orange. See September 2010 Statement in Support of Claim. The Veteran also mentions he went to U-Tapao but does not provide details of any alleged herbicide exposure. As such, the AOJ has properly followed the procedures in attempting to verify the Veteran's claimed herbicide exposure in Thailand. See M21-1 at IV.ii.1.H.5.b. As to Guam, the Veteran states that he served as a corrosion control specialist at Anderson AFB from June 1973 to December 1973. See September 2010 Statement in Support of Claim. He states that the area would be sprayed and someone told him it was to knock the jungle down. Id. A December 2010 buddy statement reports that the Veteran worked on aircraft runways in perimeter revetments and mentions an area with 55 gallon drums, some with military specification numbers. VA's Adjudication Procedures Manual, M21-1, provides procedures to develop claims based on herbicide exposure on a factual basis in locations, such as Guam, not otherwise covered by specific procedures. See M21-1 at IV.ii.1.H.7.a. As an initial step, the Veteran is to be requested to provide the approximate dates, location, and nature of the alleged exposure. If such information is obtained, the AOJ should furnish the Veteran's detailed description of exposure to the Compensation Service via email and request a review of the Department of Defense's (DoD's) inventory of herbicide operations to determine whether herbicides were used as alleged. If the Compensation Service's review does not confirm that herbicides were used as alleged and the Veteran has provided sufficient information to permit a search by the Joint Services Records Research Center (JSRRC), a request should be sent to JSRRC for verification of exposure to herbicides. In the instant case, the AOJ has not followed the procedures set forth in M21-1 to determine whether herbicides were used as alleged in Guam. The Board finds that remand is appropriate for the AOJ to accomplish this development. Accordingly, the case is REMANDED for the following action: 1. Request from the Compensation and Pension Service a review of the inventory of herbicide operations maintained by the DoD to determine whether herbicides were used as alleged by the Veteran at the Anderson AFB in Guam in June 1973 to December 1973. If the Veteran's exposure is not verified by the request to the Compensation and Pension Service, verification should be sought from JSRRC. The AOJ should forward the Veteran's service dates and duty location, and the Veteran's statements regarding the nature of his exposure to herbicides in Guam to JSRRC, and request verification of his exposure to herbicides. The results of this development should be outlined in a memorandum for the record. 2. After completing the above, and any other development as may be indicated by any response received, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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) (2015).