Citation Nr: 1628540 Decision Date: 07/18/16 Archive Date: 07/28/16 DOCKET NO. 11-20 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II. 2. Entitlement to service connection for heart disease, including coronary artery disease. 3. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities. 4. Entitlement to service connection for residuals of a stroke. 5. Entitlement to service connection for residuals of a stomach disability. 6. Entitlement to service connection for bilateral below the knee amputation. 7. Entitlement to service connection for renal disease. 8. Entitlement to service connection for anemia, claimed as blood disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Wirth, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the United States Navy from August 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2014, the Veteran testified at a hearing before the undersigned. A transcript is of record. In September 2014, the Board remanded the appeal for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Record Issues In his November 2009 notice of disagreement the Veteran reported that he now was in kidney failure and was being treated by Dr. R. Lopez. Those treatment records have not been obtained. The Board has a duty to seek them. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1). The following records were reviewed electronically and should be associated with the claims file: treatment records from VA Medical Center Montgomery/Tuskegee dated September 25, 2009 to May 13, 2011 (see June 2011 statement of the case), and outpatient treatment records from Central Alabama Veterans Health Care System dated May 13, 2011 to May 28, 2013. With the exception of private treatment records from East Montgomery Cardiology received in May 2010 and March 2011, private treatment records were last received in about April 2009. On remand, the Veteran should be given the opportunity to update any relevant private treatment records. Herbicide Exposure Development In its September 2014 remand, the Board instructed the RO to follow the procedures set forth in VA's Adjudication Procedures Manual (M21-1) for verifying herbicide exposure outside of the Republic of Vietnam or the Korean Demilitarized Zone (DMZ). In May 2015, the RO requested that the Navy and Air Force verify herbicide exposure at Subic Bay Naval Station and Clark Air Force Base (AFB) in the Philippines. In May 2015, the Navy responded that the Naval Safety Center had no responsive records and the industrial hygienists were at a loss of where to look for any such records. The Air Force responded that the Air Force Historical Research Agency did not have any evidence of tactical herbicide use at Clark AFB. Pursuant to M21-1, as RO is to refer a veteran's alleged exposure to herbicides either to the RO's U.S. Army & Joint Services Records Research Center (JSRRC) coordinator to make a formal finding that there is insufficient information to verify the herbicide exposure, or to VAVBAWAS/CO/211/AGENTORANGE and request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as claimed. See VBA Manual M21-1, IV.ii.1.H.7.a. As neither of these actions are documented in the claims file, remand is necessary. In addition, in a March 2009 statement, the Veteran reported that barrels of herbicides were stored on his ship. M21-1 provides that Agent Orange was not transported, stored, or used aboard Navy ships. See VBA Manual M21-1, IV.ii.1.H.2.k. However, it also provides that if a veteran claims exposure to herbicides due to transport, storage, or use aboard a Navy ship, a copy of the JSRRC memorandum shown in M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 2.l must be associated with the veteran's claims file. The JSRRC memorandum does not appear to be part of the Veteran's claims file, and should be associated with it on remand. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to authorize VA to obtain all records of private treatment for the claims on appeal, including records from Dr. R. Lopez and treatment since VA's last receipt of records from private providers already of record. Tell the Veteran that he may obtain and submit the records himself. 2. Obtain all VA treatment records, to include treatment records from VA Medical Center Montgomery/ Tuskegee dated September 25, 2009 to May 13, 2011 (see June 2011 statement of the case), and outpatient treatment records from Central Alabama Veterans Health Care System dated May 13, 2011 to May 28, 2013. 3. Document attempts to procure the requested records, including negative replies, in the claims file. If efforts to obtain any identified records are unsuccessful, the Veteran must be informed of the missing records, the efforts made to obtain them, and of further actions that will be taken. 4. Follow M21-1 procedures to verify potential herbicide exposure on a factual basis when a veteran alleges exposure in locations other than Vietnam, the Korean DMZ, or Thailand, including a request for review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used at Subic Bay Naval Station or Clark AFB in the Philippines from August 1965 to August 1967. If they were, take whatever action is necessary to determine whether the USS HANCOCK (CVA 19) was in port at any time when herbicides were used. 5. Associate with the Veteran's claims file a copy of the JSRRC memorandum pertaining to barrels of Agent Orange being stored onboard Navy ships shown in M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 2.l. 6. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board if otherwise 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) (2015).