Citation Nr: 1638706 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 10-36 095A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to Agent Orange/herbicide exposure. REPRESENTATION Appellant represented by: John S. Berry, Esquire ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to April 1975. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a March 2009 rating decision of the VA Regional Office in Muskogee, Oklahoma that denied service connection for type II diabetes mellitus. The case was remanded for further development by Board decision in July 2012. In a decision in April 2014, the Board denied entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2015 Memorandum Decision, the Court vacated the Board's April 2014 decision remanded the matter for further development and readjudication. It is noted that following a November 2015 rating decision, a notice of disagreement (NOD) was received in December 2015 in which the Veteran desires to appeal the denials of entitlement to a higher rating for right knee disability and entitlement to service connection for erectile dysfunction, heart disease, hypertension, bilateral upper and lower extremity neuropathy, sleep apnea, an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), acid reflux, a gastrointestinal disability, and entitlement to a total rating based on unemployability due to service-connected disability. As the RO has acknowledged receipt of the NOD by way of a January 2016 letter and the Veterans Appeals Control and Locator System (VACOLS) indicates that further action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As the record reflects that the NOD has been recognized and VACOLS reflects that additional action is pending, Manlincon is not applicable in this case. Therefore, those matters remains under the jurisdiction of the RO at this time. Following review of the record, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he developed type II diabetes as the result of exposure to Agent Orange/herbicides during service for which service connection should be granted. He contends that he was exposed to Agent Orange while serving in a working party at the Concord, California, Naval Weapons Station while attached to the ammunition supply ship the U.S.S. Mount Hood, AE-29. The Board denied the claim on the basis that there was no evidence that the Veteran was exposed to herbicides during active service for which the presumption of service connection for diabetes mellitus, type II, might apply. In its September 2015 Memorandum Decision, the Court found that the Board erred in not attempting to obtain deck logs from the U.S.S. Mount Hood because it determined that these would not show that the Veteran was exposed to herbicides during a time he states that he loaded containers of herbicide aboard the U.S.S. Mount Hood. The Court agreed with the appellant that deck logs might provide sufficient information to facilitate a search by the Joint Services Records Research Center (JSRRC) or otherwise substantiate his claim. 38 U.S.C. § 5103A. The Court held that a remand was required for the Board to obtain the deck logs of the U.S.S. Mount Hood and otherwise ensure that the duty to assist was satisfied. The Veteran has not provided specific dates as to when the claimed exposure to Agent Orange occurred. Moreover, service personnel records are not entirely clear as to when he was attached to the U.S.S. Mount Hood, but indicate that this was between March 1974 and February 1975. In any event, a remand is required to determine whether pertinent deck logs exist and may be requested for inclusion in the record. M21-1MR, Part IV, subpt ii, ch. 2, sec. C. para. 10. Additionally, the Board observes that in correspondence from the Veteran's attorney-representative dated in December 2015, it was noted that the Veteran had been granted social security disability benefits. VA has a duty to acquire a copy of the decision granting social security benefits, and the supporting medical documents on which the decision was based. See Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet.App. 67 (1996); Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992). Accordingly, this information must be requested from the Social Security Administration and associated with the claims folder. The Board also notes that the claims folder contains a vocational rehabilitation document dated in November 1991 in which the Veteran completed a neuropsychological checklist for a doctor's review to determine entitlement. He stated at that time that he was being treated for diabetes by a Dr. Schaefer. The record thus suggests that the diagnosis of diabetes was much earlier than records received in support of the claim that begin in the mid-2000s. Therefore, the Veteran should be contacted and requested to identify all health care providers, including Dr. Schaefer, who treated him diabetes after discharge from service in 1975. Accordingly, the case is REMANDED for the following actions: 1. Contact the United States National Archives and Records Administration and/or any other appropriate records repository to request copies of the U.S.S. Mount Hood deck logs from March 5, 1974 to February 19, 1975, in particular, any deck logs indicating the ship's presence at Naval Weapons Station Concord, California that refer to storage and handling of herbicides. 2. Contact the Social Security Administration and obtain a copy of the Agency decision in the Veteran's case and the medical documentation relied upon for the award of benefits. All attempts to obtain records should be documented. 3. Contact the Veteran and request that he provide authorization identifying the names and addresses of all providers who treated him for diabetes after discharge from service in 1975, including Dr. Schaefer. After securing the necessary releases, the RO should request this information. 4. After taking any further development deemed appropriate, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, provide the appellant and his representative a supplemental statement of the case and afford an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ T. MAINELLI 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).