Citation Nr: 1736433 Decision Date: 08/31/17 Archive Date: 09/06/17 DOCKET NO. 15-28 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for acne as due to exposure to herbicides. 2. Entitlement to service connection for hypersomnia with sleep apnea (a sleep disability) as due to exposure to herbicides. 3. Entitlement to service connection for diabetes mellitus, type II, as due to exposure to herbicides. 4. Entitlement to service connection for impotence of organic origin as due to exposure to herbicides. 5. Entitlement to service connection for valvular regurgitation, atherosclerotic calcification of the aortic arch over bilateral carotid arteries, diastolic dysfunction of the left ventricle, and ischemic heart diseaseas (a heart disability) as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1955 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2016). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's appeal of service connection for acne, a sleep disability, diabetes mellitus, impotence, and a heart disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2014); 38 C.F.R. § 3.159(c), (d) (2016). In this case, the Veteran does not contend that the acne, sleep disability, diabetes mellitus, impotence, and heart disability began or had onset in service. Instead, the Veteran has repeatedly and consistently contended that the acne, sleep disability, diabetes mellitus, impotence, and heart disability are a result of exposure to herbicides, particularly, Agent Orange and Agent Purple, during service in Goosebay, Canada. See May 2012 Claim; see also August 2013 VA Memo; see also October 2013 Correspondence. Personnel records reveal that the Veteran was stationed at Goose Bay (Canadian Forces Base), Canada, from May 17, 1956 to July 1, 1957. In a July 2013 VA memorandum, a VA JSRRC coordinator indicated that the Veteran's Agent Orange exposure could not be conceded because "[t]he Agent Orange mailbox, when contacted, responded that the Department of Defense does not show any use, testing or storage of Agent Orange at Goose Bay in Canada and can provide no evidence to support the claim. They also state that the tactical herbicides covered by VA regulations were not in use until 1962 which is 6 years after veteran's period of service." Significantly, however, the Board notes that the Veteran has explicitly identified both Agent Orange and Agent Purple as the herbicides purportedly used during service in Goose Bay, Canada. In this regard, VA Adjudication Procedure[s] Manual [herein 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." 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 VA Compensation Service, that if the Veteran provided sufficient information to permit a search by the Joint Services Records Research Center (JSRRC), a request for verification of herbicide agent exposure should be sent to the JSRRC. The United States Court of Appeals for Veterans Claims (Court) 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.A. § 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 a remand is required for appropriate VA Compensation Service and JSRRC requests in order to fulfill VA's duty to assist, and to comply with the applicable provisions of the M21-1. Specifically, the Veteran and/or evidence of record provided information regarding the approximate date (May 17, 1956 to July 1, 1957) and location (Canadian Forces Base Goose Bay, Canada) of the claimed herbicide exposure. The Board notes that the M21-1 provision relating to JSRRC requests indicate that a JSRRC request must reference the unit designation, specific date of incident, precise location, and circumstances surrounding exposure. 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). As such, a remand is required for the appropriate requests to VA Compensation Service and the JSRRC for verification of the Veteran's claimed herbicide agent exposure. Accordingly, the case is REMANDED for the following actions: (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. Submit the Veteran's case to VA's Compensation Service to determine if herbicides were used as claimed. If VA Compensation Service is not able to confirm that herbicides were used as contended, make appropriate requests to the JSRRC for verification of the Veteran's reported herbicide agent exposure (both Agent Orange and Agent Purple as 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 completion of the above and any additional development deemed necessary, readjudicate the issues of service connection for acne, a sleep disability, diabetes mellitus, impotence, and a heart disability. If the determinations remain adverse to the Veteran, he and the representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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). 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). _________________________________________________ A. P. SIMPSON 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).