Citation Nr: 1604014 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 12-14 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for diabetes mellitus type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2010; a statement of the case was issued in May 2012; and a substantive appeal was received in May 2012. The Veteran presented testimony at a Board hearing in September 2015. A transcript of the hearing is associated with the Veteran's claims folder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). 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, and that this exposure caused or contributed to his post service diagnosis of 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 2014); 38 C.F.R. § 3.307, 3.309 (2015). The Veteran here is not shown to have served in Vietnam, and does not allege otherwise. Rather, he contends that his diabetes mellitus stems from his exposure to Agent Orange while he was stationed in Guam from March 1967 to August 1968. The Veteran has submitted articles that substantiate that Agent Orange was sprayed on Guam from 1955 to the 1960s, and was stored at Andersen Air Force Base in Yigo, Guam. The Veteran's service treatment records (which do not reflect treatment for diabetes) are stamped Agana, Guam. His service personnel records are not in the claims file. The RO denied the Veteran's claim based solely on the fact that he did not serve in Vietnam. The Board notes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran has service in Vietnam which would entitle him to a presumption of having been exposed to herbicides, but also must determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(d) (2015), to include as due to possible exposure to herbicides on Guam. The Board finds that the RO must attempt to obtain service personnel records that would more accurately determine when and where the Veteran was stationed, and to determine if Agent Orange or other herbicides were used in those places. The Veteran has stated that he went to Andersen Air Force base on at least one occasion. If exposure to herbicides 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 March 1967 to August 1968. If the JSSRC determines that there is insufficient information to verify the Veteran's claimed exposure, a formal finding should be made. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the Veteran's service personnel records to determine when and where the Veteran served while stationed in Guam. 2. A request must be sent to the JSRRC for verification of the Veteran's possible Agent Orange exposure at Andersen Air Force Base or at the U.S. Naval Station in Agana, Guam during his military service, to include from March 1967 to August 1968. 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. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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). _________________________________________________ ERIC S. LEBOFF 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).