Citation Nr: 1720002 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 13-19 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a decision review officer (DRO) hearing in August 2014. The hearing transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's claim for entitlement to service connection for type II diabetes mellitus. In a November 2012 private medical record, M.Kang, M.D., stated that the Veteran has diabetes mellitus type 2 that is controlled with lifestyle change. While the Veteran has a diagnosis of diabetes mellitus type 2, his service in Vietnam has not yet been verified. In this regard, in his October 2007 claim for VA benefits, the Veteran reported that he served in Vietnam from October 1966 to March 1967. The Veteran's DD 214 shows that he received the Vietnam Campaign Medal (VCM) and the Vietnam Service Medal (VSM). However, both of these medals were awarded to soldiers who provided support for the Vietnam War, and do not, by themselves, establish that the Veteran served within the borders of the Republic of Vietnam. Thus, the AOJ should contact all appropriate facilities to attempt to verify the Veteran's claimed exposure to herbicides. If such records are unavailable, a formal finding of unavailability should be made and associated with the claims file. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116 (f) (West 2014) and 38 C.F.R. § 3.307 (a)(6)(iii) (2015). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, to include type II diabetes and ischemic heart disease shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Also, pursuant to Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), VA must not only determine whether the Veteran has a disability related to service on a presumptive basis but also on a direct basis under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303 (d). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's complete military personnel records. 2. Undertake appropriate action, to particularly include contacting all appropriate facilities and service departments, to attempt to verify whether the Veteran ever set foot in Vietnam during his Vietnam era service. Specifically from October 1966 to March 1967, as reported by the Veteran. Any additional action necessary for independent verification of the Veteran's exposure to herbicides, to include follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating records leads to negative results, notify the Veteran and afford him the opportunity to respond. 3. After completing these actions, the AOJ should conduct any other development as may be indicated, to include an additional VA examination and opinion. 4. When all development has been completed, readjudicate the claim. If the benefit sought on appeal is denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response. Then, return the case to the Board 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). _________________________________________________ Lesley A. Rein 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).