Citation Nr: 1739481 Decision Date: 09/14/17 Archive Date: 09/29/17 DOCKET NO. 12-30 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for ischemic heart disease, claimed as a result of exposure to herbicides including Agent Orange. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The Veteran's claim was last before the Board in January 2016 and was remanded for additional development. For the reasons discussed below, there has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he developed ischemic heart disease as a result of exposure to Agent Orange while stationed at Camp Pendleton. He is not claiming that his condition is otherwise related to service. There are certain development procedures for claims for herbicide exposure in locations other than the Republic of Vietnam, the Korean Demilitarized Zone, and Thailand. VA Adjudication Procedures Manual, M21-1. The Veteran's case was remanded by the Board on two occasions, in February 2015 and January 2016, in order for the AOJ to verify the Veteran's claimed exposure of Agent Orange with the Joint Service Records and Research Center (JSRRC) in accordance with the development procedures. The Board in its prior remands has determined that the Veteran had indeed supplied sufficient information to permit a search by JSRRC. However, the AOJ has yet to accomplish this request or adequately explain why such actions are unable to be completed. Rather than contacting the JSRRC as requested in the February 2015 Board remand, the AOJ submitted another request to the Compensation Service, which in a June 2015 email stated that there was no evidence that tactical herbicides were used, tested, stored or buried at Camp Pendleton, California. That response specifically noted that unless "the claim is inherently incredible or clearly lacks merit," the Veteran's claim should be referred to the JSRRC "for any information that this organization can provide to corroborate the Veteran's claimed exposure." In a September 2015 memorandum, the JSRRC coordinator notes that on August 8, 2015, a response was received from JSRRC. However, the memorandum goes on to quote the June 2015 email from the Compensation Service, notably that "Compensation Service can provide no evidence to support the claim." The Veteran's claims file does not include any response from JSRRC, much less one dated August 8, 2015. Following the January 2016 Board remand, an email dated August 26, 2016 was added to the Veteran's claims file written by an Archives Technician from the History Division of Gray Research Center in Quantico, Virginia. The email stated that the JSRRC "is the agency created to research AGENT ORANGE CLAIMS. Their researchers have full access to the archives and records of military services and federal agencies." The email goes on to state the physical address of the JSRRC. Nevertheless, a subsequent January 2017 misdirected development memorandum prepared by the AOJ stated that "VA cannot request stressor or herbicide exposure corroboration from JSRRC in DPRIS (Defense Personnel Records Information Retrieval System)." Further, in a February 2017 Supplemental Statement of the Case (SSOC), the AOJ incorrectly refers to the September 2015 statement from the JSRRC Coordinator as a "JSRRC Formal Finding." The SSOC further states that "[c]ontacting Compensation Service is the right development action to take to verify any exposure you may/or may not have had to Herbicide Exposure." The SSOC incorrectly stated that JSRRC already notified the AOJ there was no evidence that tactical herbicides were used, tested, stored or buried at Camp Pendleton, California. There is no indication that the AOJ ever attempted to verify the Veteran's alleged exposure with JSRRC. Further, the AOJ provided an inadequate explanation for why it is unable to complete this development action. The Veteran has provided sufficient information about his claimed exposure to herbicides while he was stationed at Camp Pendleton in order to formulate a request for corroboration. Accordingly, the Veteran's claim must be remanded and developed consistent with M21-1 procedures. Accordingly, the case is REMANDED for the following action: 1. Pursuant to VA's Adjudication Procedures Manual, M21-1, IV.ii.1.H.7.a, Step 5, send a request to the Joint Services Records Research Center (JSRRC) for verification of the Veteran's statements claiming he was exposed to Agent Orange while stationed at Camp Pendleton, California. Should the AOJ be unable to make an electronic request, the physical address of the JSRRC is 7701 Telegraph Road, Kingman Building, Room 2C09, Alexandria, Virginia 22315. 2. Then readjudicate the Veteran's claim. If any benefit sought is denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. 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). _________________________________________________ M. E. LARKIN 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).