Citation Nr: 1607104 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 08-28 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicides. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to herbicides and/or diabetes mellitus type II. 3. Entitlement to service connection for hypertension, to include as secondary to herbicides and/or diabetes mellitus type II. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2007 and February 2007 rating decisions rendered by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a hearing in May 2009. A transcript of the hearing is of record. In March 2010 and August 2014, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in March 2011 and September 2015 supplemental statements of the case (SSOC). The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As stated in the previous remand, the Veteran contends that his current diabetes mellitus is due to exposure to herbicides in service. He further contends that his current hypertension and erectile dysfunction disabilities were incurred as a result of military service, to include as secondary to herbicide exposure and/or diabetes mellitus. The Veteran has testified that he was exposed to herbicides in Guam by Agent Orange being stored on the base and periodically sprayed around the flight line and airplane storage areas. He also testified that while in Thailand, the flight line on his military base was bombed. He stated that after the attack, the foliage near the planes, the flight line, and storage areas and the B-52 planes were sprayed with a defoliant. He believes that the defoliant used was Agent Orange because after the spraying occurred, the foliage in those areas became brown and less dense, and the areas became more visible. With regard to the Veteran's contention that his current diabetes, hypertension, and erectile dysfunction are due to herbicide exposure in Thailand, his service personnel records show that he was stationed with the 4258th OMS from March to September 1968 at U-Tapao Airfield. C&P Service's Memorandum for the Record on herbicide use in Thailand during the Vietnam Era indicates that according to the U.S. Department of Defense, only limited testing of tactical herbicides was conducted in Thailand from 2 April through 8 September 1964 at the Pranbun Military Reservation. This location was not near any U.S. military installation or Royal Thai Air Force Base. Other than the 1964 tests on the Pranbun Military Reservation, there were no records of tactical herbicide storage or use in Thailand. Records indicate that commercial, not tactical, herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era. There are no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. Although the use of tactical herbicides on allied bases in Thailand has not been reported, sporadic use of non-tactical (commercial) herbicides within fenced perimeters has been reported. Therefore, if a Veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. However, as noted above, there are no records to show that the same tactical herbicides used in Vietnam were used in Thailand. The Veteran's personnel records noted that his MOS was airplane aircraft mechanic; his was not the type of MOS for which duty on the air base perimeter is presumed. See VA Adjudication Procedure Manual, M21 Part IV, Subpart ii, Chapter 1, Sec H(5)(b). His airman performance report for March 1968 to September 1968 noted that he performed aircraft preflight and launch and terminated recovery actions from the recovery team. However, the specific duties of this position, particularly whether it involved duty on or near the perimeters of this base, were unclear. Additionally, pursuant to the August 2014 remand, the Board ordered the AOJ to request verification of the Veteran's exposure to herbicides from the Joint Services Records Research Center (JSRRC) while stationed with the 92nd OMS and any other unit in Thailand from March 1968 to September 1968. In a response dated July 2015, the JSRRC noted that research regarding the Thailand flight line bombing was unable to be conducted as there was not a specific Thailand location or identification of the flight line provided. As the request to the JSRRC did not identify the base in Thailand or the Veteran's dates of service there, the Board finds that further inquiry is warranted from JSRRC and any other appropriate agency, which may include the Air Force Historical Research Agency, on remand. The Board also observes that in a July 2015 memorandum, the JSRRC coordinator at the Appeals Management Center concluded that the Veteran was assigned to the 4258th OMS at U-Tapao, Thailand from March to September 1968, and that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. Based on review of the record, the JSRRC coordinator conceded the Veteran's exposure to herbicides during his service in Thailand. Crucially, the JSRRC coordinator did not provide any specific bases as to whether the Veteran was stationed on or near the perimeters of the air base and why herbicide exposure was conceded. The Board notes that, within the VA benefits system, the Board is the final trier of fact and is not bound by prior RO factual determinations. McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009). Accordingly, the case is REMANDED for the following action: 1. Contact the JSRRC and any other appropriate agency, which may include the Air Force Historical Research Agency archivist, and request information regarding whether herbicides were used at the U-Tapao Air Force Base in Thailand after a conflict with opposing forces on August 7, 1968. Also request information as to whether the Veteran's duties during the time he was stationed at U-Tapao Air Force Base from March 1968 to September 1968 involved duties at or near the perimeter of the base. The Veteran's airman performance report for March 1968 to September 1968 noted that he performed aircraft preflight and launch and terminated recovery actions from the recovery team. All attempts to obtain this information should be documented in the claims file. 2. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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).