Citation Nr: 1715345 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 14-25 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, type II (DMII), to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied reopening the claim. In February 2016, the Board reopened the claim and denied entitlement to service connection for DMII. That decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2016, the Court granted a Joint Motion for Partial Remand (JMPR). The portion of the Board's decision that denied entitlement to service connection for DMII was vacated and remanded for further proceedings consistent with the decision. The remainder of the Board's decision was not disturbed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a decision issued in February 2016, the Board denied service connection for DMII, to include as due to Agent Orange exposure. The Board determined that: 1) the Veteran did not have active duty service in the Republic of Vietnam, so the presumptive service connection provisions for DMII, based on Agent Orange exposure, were not met; 2) DMII did not manifest to a compensable degree within one year of service separation, and there were no continuous symptoms of DMII since service, so the presumptive service-connection provisions for DMII as a "chronic" disease were not met and; 3) there was no competent evidence of a nexus between DMII and service, therefore, the criteria for direct service connection were also not met. In the September 2016 JMPR, the parties agreed, in part, that the Board did not provide an adequate statement of reasons or bases for the denial, in light of the Veteran's contention that he was flown from the U.S.S. Bon Homme Richard to Da Nang where he spent four days awaiting a flight back to the United States. The Board finds these are reasonable requests and has so instructed consideration of these directives, as detailed below. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to his claim for entitlement to service connection for DMII. After obtaining any necessary authorization from the Veteran, obtain all outstanding private and VA records. 2. The Veteran should be afforded a new VA examination regarding his DMII. Make the electronic claims file available to the examiner. The examiner shall note in the report that the entire electronic claims file has been reviewed. Following a review of the claims file and examination of the Veteran, the examiner should offer the following opinion: Is it at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed DMII began in service or is otherwise the result of a disease or injury in service? All opinions must be supported by a clear rationale. If it is not possible to provide the requested opinion without resorting to speculation, the examiner should state why speculation would be required in this case. Any missing evidence that would enable the examiner to provide the opinion should be identified. 3. The AOJ should contact the Joint Services Records Research Center (JSRRC) to obtain and associate with the claims file any and all of the U.S.S. Bon Homme Richard's ship history and deck logs from September 1970 through October 1970; and contact the Veteran's Naval unit, the Naval Historical Center, or any other appropriate entity, to verify and associate with the claims file proof or documentation of the Veteran's alleged flight from the U.S.S. Bon Homme Richard to Da Nang where he spent four days awaiting a flight back to the United States, in late September or early October 1970. All attempts and responses should be documented. 4. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should be returned to the Board for further appellate consideration, if 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). _________________________________________________ MARJORIE A. AUER 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) (2016).