Citation Nr: 1742004 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 15-27 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus with diabetic retinopathy, to include as due to herbicide exposure. 2. Entitlement to service connection for liver disease and hepatocellular carcinoma, status-post liver transplant, to include as secondary to type II diabetes mellitus and as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1969, to include service in Korea from November 1966 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2017, the Veteran testified at a videoconference hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. During the hearing, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has contended that his type II diabetes mellitus with diabetic retinopathy and liver disease are the result of exposure to Agent Orange from his service duties that placed him along the Korean Demilitarized Zone (DMZ). Service personnel records indicate that the Veteran served in Company B of the 76th Engineer Construction Battalion in Korea from November 1966 to December 1967. Specifically, the Veteran stated that he believed that he was exposed to herbicides in Korea after a helicopter flew overhead spraying what he believed to be herbicides in February 1967. See February 2014 report of contact. During the June 2017 hearing, the Veteran testified that he was stationed in Gimpo, Korea, following advanced training and that, from Gimpo, he went to the DMZ for nine months. During those nine months, he indicated that he operated heavy equipment used to build a highway from Freedom Bridge to Pan Moon Jong. In March 2014, a Defense Personnel Records Information Retrieval System (DPRIS) search of the 1967 unit history submitted by the 76th Engineer Construction Battalion showed that Company B was involved with many projects, including building and replacing bridges. The search showed that the earth moving platoon lost all of its scrapers when it went north to support the 2nd Engineer Combat Battalion in construction of a DMZ barrier. The information did not document any helicopters spraying Agent Orange or tactical herbicides. In May 2014, the United States Army and Joint Services Records Research Center (JSRRC) coordinator at the RO determined that the information required to corroborate exposure to Agent Orange as described by the Veteran was insufficient to send to the JSRRC and/or insufficient to allow for meaningful research of the National Archives and Records Administration (NARA) records. The RO noted that the Veteran contended that he was exposed to Agent Orange from a helicopter spraying chemicals in the area he was working around in February 1967; however, the RO indicated that the date was outside of the presumptive period from April 1, 1968, to August 31, 1971, as specified in the M21-1MR IV.ii.2.c.10.p (updated citation M21-1 IV.ii.1.H.4.a (effective August 22, 2017). The RO also mentioned the DPRIS response. Therefore, the RO determined that exposure to Agent Orange was not conceded. During the June 2017 hearing, the Veteran submitted an internet report that indicated that a small quantity of a commercial herbicide was used in selected areas of the Republic of Korea in late 1963. Further, the report stated that, as a part of a general review of the DMZ defense, UN forces found that dense, uncontrolled growth of vegetation within the DMZ and contiguous areas provided cover for North Korean infiltration or raiding parties. Therefore, tests of herbicides to control vegetation were conducted in small selected areas south of the DMZ. During the hearing, the Veteran also testified that he used equipment, including bulldozers, to gather up land underneath where helicopters covered in herbicides landed to access the United Nations Camp. He stated that the helicopters had sprayers on them and that the land underneath the helicopters became saturated where the tanks leaked. He indicated that he would take the exposed land and discard it inside the DMZ and bring back unexposed sand for the helicopters to land in. He stated that he cleaned up the area with a bulldozer and loader twice a week for four months. During the hearing, the Veteran also submitted an internet article that mentioned that Agent Orange was used in Korea beginning as early as 1967 and at least 18,000 acres were treated near where the Second Infantry Division was stationed at the DMZ. The Veteran testified that his unit was attached to that infantry unit. According to M2102 IV.ii.H.4.c., a request should be sent to JSRRC for verification of exposure to herbicides when a Veteran claims exposure in Korea and the service was not between April 1, 1968, and August 31, 1971, or in a unit of entity listed in M21-2 IV.ii.1.H.4.b. Therefore, in this case, the AOJ should sent a request to the JSRRC for a search for the unit history for the entire period the Veteran served in Korea. Based on the foregoing, a remand is required to afford the Veteran all due consideration in this regard. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should take any appropriate steps consistent with the procedures outlined in the M21-1 and in consideration of § 3.307(a)(6)(iv) to attempt to verify the Veteran's claimed herbicide exposure while he was stationed in Korea from November 1966 to December 1967. It is noted that the March 2014 DPRIS response appears to have been based only on a search of the 1967 unit history for Company B of the 76th Engineer Construction Battalion. However, during the June 2017 hearing, the Veteran testified that his unit was attached to the Second Infantry Division while stationed at the DMZ. All attempts and responses should be documented in the claims file. 2. If completion of the foregoing development does not result in a grant of service connection for type II diabetes mellitus on a presumptive basis, the AOJ should consider whether any development is necessary for the claim on a direct basis. Further development may include obtaining a VA medical opinion. If completion of the foregoing development does result in a grant of service connection for type II diabetes mellitus on a direct basis, the AOJ should also consider whether any development is necessary for the claim for service connection for liver disease, to include as secondary to type II diabetes mellitus and/or as due to herbicide exposure. Further development may include obtaining a VA medical opinion. 3. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The supplemental statement of the case should contain citation to and a discussion of the relevant provisions for herbicide exposure in or near the Korean DMZ, including 38 C.F.R. § 3.307(a)(6)(iv). The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ J.W. ZISSIMOS 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).