Citation Nr: 1752334 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-15 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicide agents. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, claimed as due to exposure to herbicide agents and/or as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for a disorder manifested by pain in the bilateral buttocks, claimed as due to exposure to herbicide agents. 4. Entitlement to service connection for a disorder manifested by pain in the bilateral groin area, claimed as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Katie K. Molter, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran had active service from August 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge sitting at the RO in July 2012. A transcript of that hearing is associated with the record. This case was initially before the Board in February 2013, at which time it was remanded for additional development. In November 2013, the Board denied the instant claims. The Veteran subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In an April 2015 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran's attorney agreed that vacatur and remand of the November 2013 decision was warranted. Subsequently, the Court issued an Order granting the JMR, and, therefore, such issues were remanded to the Board for further consideration. Thereafter, the Board denied the claims in December 2015. The Veteran again appealed such denial to the Court. In a February 2017 Memorandum Decision, the Court vacated the Board's decision and remanded the appeal to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Board denied the claims on appeal in the December 2015 decision on the basis that the Veteran was not presumptively exposed to herbicide agents, the evidence did not otherwise establish that he was directly exposed to herbicide agents during service, to include based on his claim that he was required to work at or near the base perimeters while serving at Takhli Airbase from December 1967 to April 1968 and at Nakhon Phanom Airbase from April 1968 to December 1968, and his disorders were not otherwise shown to be directly related to his military service. In the February 2017 Memorandum Decision, the Court found that the Board provided an inadequate statement of reasons or bases pertaining to the Veteran's lay testimony regarding his claimed exposure to herbicide agents during service. In this regard, the Court referenced the Veteran's July 2012 Board hearing testimony in which he stated that, in his capacity as a corrosion control specialist, he became exposed to herbicide agents while cleaning C-123's planes that sprayed herbicides in Vietnam. Additionally, the Court specifically opined "the Board conceded that the appellant's job was to clean planes and that at least some of these planes came from Vietnam. R. at 14-19. The only remaining question is whether the preponderance of the evidence establishes that one of these planes had herbicides that dripped onto the appellant while he was performing his job. Remand is required for the Board to provide an adequate statement of reasons for bases for its treatment of the appellant's lay testimony." In support of the Veteran's claim, his attorney submitted a September 1969 report in which the author detailed his trip to Vietnam from August 15, 1969, to September 2, 1969, and noted that C-123 planes were used to spray herbicides and, upon the planes' return from such mission, their spray nozzles were leaking herbicides. However, such specifically pertains to C-123's utilized in Vietnam, not Thailand. Furthermore, as discussed in the December 2015 decision, the Board notes that VA has determined that a select group of Air Force Servicemembers, to include Reservists and active duty personnel, who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members, were exposed to Agent Orange. However, the Veteran did not serve in any of the units nor during the time periods acknowledged as having regular and repeated exposure to contaminated C-123s. In this regard, the Veteran was discharged from service in December 1968, and the exposures noted generally began in 1969. The exception to this is the 4500th Air Base Wing stationed at Langley Air Force Base in Virginia, to which the Veteran was not assigned. See https://www.benefits.va.gov/compensation/docs/ AO_C123_AFSpecialityCodesUnits.pdf. Consequently, while the evidence does not currently establish that the Veteran was presumptively exposed to herbicide agents while working on C-123's in Thailand, the Board finds that a remand is necessary in order to attempt to corroborate his claimed exposure in accordance with the Court's February 2017 Memorandum Decision. Accordingly, the case is REMANDED for the following action: 1. Contact the Joint Services Records Research Center (JSRRC) or any other appropriate entity, and specifically request verification of the Veteran's claimed exposure to herbicide agents in Thailand at Takhli Airbase from December 1967 to December 1968 and at Nakhon Phanom Airbase from April 1968 to December 1968 in the course of his duties as a corrosion control specialist that included cleaning C-123's from Vietnam. The entity should be provided with any relevant documentation, including lay statements, buddy statements, photographs, or other records. Ensure that documentation of this inquiry is associated with the record, along with all responses received. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain 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 Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ A. JAEGER 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) (2017).