Citation Nr: 1720128 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 13-18 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for type II diabetes mellitus claimed as due to herbicide agent exposure. REPRESENTATION Veteran represented by: Katrina J. Eagle, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1974, July 1975 to July 1977 and May 1980 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at an October 2015 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing 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 The Veteran's primary contention in this appeal is that he was exposed to herbicide agents during his active service while stationed in Guam. See March 2010 Claim, June 2010 Veteran Statement, July 2011 VA Form 21-0820 (Report of General Information), May 2012 Notice of Disagreement, October 2015 Board Hearing Transcript. Specifically, he has contended that he was exposed to herbicide agents while working in Guam at the Delta Company Naval Magazine and at Andersen Air Force Base, to include as due to herbicide agents being sprayed on the perimeter of the bases/fence line (to include being directly sprayed while at the Delta Company Naval Magazine), on the flight line at Andersen Air Force Base (to include being directly sprayed by herbicide agents dispensed from a helicopter) and due to drinking water on Guam containing herbicide agents. See June 2010 Veteran Statement, October 2015 Board Hearing Transcript, pages 4, 7, 9. The Veteran's personnel records reflected that he was stationed at the Marine Barracks in Guam (listed as the Organization), with a primary duty of "D" Company Guard, from July 1972 to October 1973. The Board remanded the Veteran's claim in December 2015, primarily to ensure "that factual verification of herbicide exposure can be conducted in accordance with the VA Adjudication Procedure[s] Manual [herein M21-1]." The M21-1 has specific procedures for developing claims based on herbicide agent exposure in locations other than Vietnam, Korea or Thailand. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.7.a. One step in the procedure is to contact the Compensation Service in order to "request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed." Following the December 2015 Board remand, the AOJ completed this step and received a January 2016 response from Compensation Service, which stated in part that "Compensation Service can provide no evidence to support the claim." The Compensation Service response also stated that "[u]nless the claim is inherently incredible or clearly lacks merit...it should be referred to the U.S. Army and Joint Services Records Research Center (JSRRC)...for any information this organization can provide to corroborate the Veteran's claimed exposure" and that "[t]his process may delay resolution of the claim but it will help insure that we fulfill VA's duty to assist." The M21-1 procedures for developing claims based on herbicide agent exposure in locations other than Vietnam, Korea or Thailand include, following the referenced request to Compensation Service, that if the Veteran "provided sufficient information to permit a search by JSRRC," a request for verification of herbicide agent exposure should be sent to the JSRRC. The AOJ subsequently did not contact the JSRRC and completed a January 2016 Formal Finding regarding "a lack of information required to corroborate exposure to herbicides." The Formal Finding also stated that "[w]e have determined that the information required to corroborate the exposure to herbicides described by the Veteran is insufficient to send to the [JSRRC]." The United States Court of Appeals for Veterans Claims (Court) recently issued a decision that addressed VA's duty to assist within the context of when a request to the JSRRC is necessary. See Gagne v. McDonald, 27 Vet. App. 397 (2015). In Gagne, the Court stated that: The language of the duty-to-assist statute clearly states that when the veteran provides information sufficient to locate service records that are in the possession of a government agency and that might help the veteran's claim, VA "shall continue" to search for such records "unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(c)(2). The implementing regulation supports the conclusion that to fulfill his duty to assist the Secretary must make as many research record requests as are necessary and that a search for records is "futile" only when it becomes clear the record does not exist or is not in the possession of the custodian. 38 C.F.R. § 3.159(c)(2). The Court in Gagne found that multiple JSRRC requests were required as a result of information of record relating to an alleged stressor that occurred sometime during the Veteran's 13 month period of deployed service. The Board finds the facts in this case to be analogous to those in Gagne and that remand is required for appropriate JSRRC requests in order to fulfill VA's duty to assist, to substantially comply with the prior December 2015 Board remand and to comply with the applicable provisions of the M21-1. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Veteran and/or evidence of record provided information regarding the approximate date (July 1972 to October 1973), location (Guam, specifically at Delta Company Naval Magazine and at Andersen Air Force Base), unit (personnel records reflected that the Veteran's Organization in Guam was the Marine Barracks, with a primary duty of "D" Company Guard) and circumstances surrounding (referenced above) his reported herbicide agent exposure. The Board notes that the M21-1 provision relating to JSRRC requests reference including the unit designation, specific date of incident, precise location and circumstances surrounding exposure in a JSRRC request. See M21-1, Part III, Subpart iii, Chapter 2, Section I.2.i. It appears that this information has been substantially provided by the Veteran or is otherwise of record and as such, "information sufficient to locate...relevant records pertaining to [the Veteran's active service] that are held or maintained by a governmental entity" has been provided. See 38 U.S.C.A. § 5103A(c)(1)(A) (West 2014). Moreover, the Board notes that the January 2016 Compensation Services response stated that the Veteran's claim "should be referred to the...JSRRC" and that "[t]his process may delay resolution of the claim but it will help insure that we fulfill VA's duty to assist." This statement indicated that the JSRRC may have information relevant to the Veteran's claim and accordingly, VA's duty to assist requires requests to the JSRRC. See 38 C.F.R. § 3.159(c)(2) (2016) (stating that "VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency"). This outcome is further warranted based on the Court's holding in Gagne, as addressed above. In sum, remand is required for the appropriate requests to the JSRRC for verification of the Veteran's reported herbicide agent exposure. Accordingly, the case is REMANDED for the following action: 1. Make appropriate requests to the JSRRC for verification of the Veteran's reported herbicide agent exposure (discussed further in the body of the remand above) in accordance with the M21-1. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.7.a. The AOJ is informed that this includes, if necessary, submitting multiple requests to the JSRRC. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA failed in fulfilling its duty to assist when VA did not submit multiple request to the JSRRC). 2. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. 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). _________________________________________________ H. N. SCHWARTZ 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).