Citation Nr: 1755041 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-03 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure. 2. Entitlement to service connection for prostate cancer, to include as due to herbicide (Agent Orange) exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the United States Marine Corps from January 1966 to January 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions dated in November 2009 and September 2010 from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a September 2016 Board decision, the Board denied the matter on appeal. The Veteran appealed the September 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Order, the Court vacated and remanded the Board's decision as to both service connection issues, for proceedings consistent with an October 2017 Joint Motion for Remand (hereinafter - Joint Motion). The October 2017 Joint Motion concluded the Board had erred in its earlier decision, insofar as it did not comply with the duty to assist the Veteran. See generally 38 U.S.C. § 5103A (2012). That is, the Veteran has alleged that he was exposed to herbicides while stationed in Puerto Rico from September 1966 to December 1966. With regard to this alleged herbicide exposure, the Board failed to address whether the Veteran's statements (i.e., September 2010 Veteran statement and February 2012 VA Form 9) provided sufficient information for VA to conduct a U.S. Army Joint Services and Research Center (JSRRC) request to verify any herbicide exposure for the Veteran. See 38 U.S.C. § 5103A(c)(1); see also 38 C.F.R. § 3.159(c)(2) (2017) (efforts to obtain federal records will end "only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile"). Thus, the October 2017 Joint Motion directed the Board to conduct further investigation as to the veracity of the alleged herbicide exposure in Puerto Rico, or in the alternative, for the Board to adequately explain how it complied with its duty to assist the Veteran. At present, the case has returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his prostate cancer and type II diabetes mellitus developed post-service as the result of alleged exposure to Agent Orange or other herbicides, while he was stationed with the Marine Corps on temporary additional duty (TAD) in Puerto Rico, from September 3, 1966 to December 15, 1966. He believes this herbicide exposure occurred while assigned to Roosevelt Road Naval Station in Ceiba, Puerto Rico, and Camp Garcia, on the Isla de Vieques, Puerto Rico (there was a small U.S. Naval Base on this island). In particular, after arriving at Roosevelt Road Naval Station on the Puerto Rico mainland, he then delivered food to Camp Garcia on the Isla De Vieques. He indicates he was later told that Camp Garcia on Isla De Vieques was exposed to Agent Orange or other herbicides. He maintains that both of these bases in Puerto Rico eventually had to be closed due to the presence of herbicides, which were deemed dangerous to one's health. The Veteran states that VA's own website has a Department of Defense (DoD) inventory of herbicide test and storage sites in Puerto Rico, during the period the Veteran served there from September 3, 1966 to December 15, 1966. See September 2010 NOD; February 2012 VA Form 9; October 2013 privacy release form for congresswoman; December 2013 privacy release form to Senator Shelby of Alabama; and October 2017 Appellant's Brief for Court. The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). In addition, a veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, as determined by the DoD, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iv); 76 Fed. Reg. 4,245 - 4,247 (January 25, 2011). However, with regard to presumptive service connection, the Veteran's service personnel records (SPRs), including his DD Form 214, establish that he did not serve in the Republic of Vietnam during the Vietnam era, or in or near the Korean DMZ from 1968 to 1971. This fact is not in dispute. Therefore, he is not presumed to have been exposed to herbicides, including Agent Orange, on the basis of any Vietnam or Korean DMZ service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), (iv); 3.313(a). However, the presumption of service connection for herbicide-related diseases could apply if exposure to herbicide agents is shown on a factual basis. In essence, if the veteran did not serve in Vietnam during the Vietnam Era or at the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicide agents has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Type II diabetes mellitus and prostate cancer are both listed as diseases associated with herbicide exposure for purposes of the above presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. 3.309(e). To warrant service connection, Type II diabetes mellitus and prostate cancer may manifest to a degree of at least 10 percent at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). In this regard, private treatment records dated from 2004 to 2011 confirm that the Veteran has type II diabetes mellitus and prostate cancer which were both manifest to a degree of at least 10 percent or more after service. 38 C.F.R. § 3.307(a)(6)(ii). Therefore, the Veteran has both type II diabetes mellitus and prostate cancer, which are disorders associated with herbicide exposure for purposes of this presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). As such, the central question in this case is whether the evidence establishes on a factual basis that the Veteran was exposed to Agent Orange or other herbicides in Puerto Rico from September 3, 1966 to December 15, 1966. However, before addressing the merits of the service connection issues on appeal, the Board finds that additional development of the evidence is required. First, it appears the AOJ may have only secured limited service personnel records (SPRs) for the Veteran. As pointed out in the October 2017 Appellant's Brief, a January 2013 Request for Information by the AOJ indicates the request for the Veteran's personnel files was made with PIES request code O16, which is specifically for asbestos cases. However, it does not appear the AOJ made a complete request for the entire personnel file using PIES request code O18 (for performance ratings) or PIES request code O50 (for securing the entire personnel file in paperless appeals). See VBA Live Manual, M21-1, Part III, Subpart iii, Chapter 2, Section D, Topic 3, Block c (January 12, 2017). Therefore, the AOJ must attempt to secure the Veteran's complete SPRs from the National Personnel Records Center (NPRC), Records Management Center (RMC), or other appropriate location. Any additional SPR performance reports or evaluations, for example, might include descriptions of the specific duties the Veteran performed in Puerto Rico from September 3, 1966 to December 15, 1966, to include the possibility of exposure to herbicides. In this regard, VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(c)(3). These records include military records such as SPRs. 38 C.F.R. § 3.159(c)(2), (3). When VA attempts to obtain SPRs from a Federal department or agency, the efforts to obtain these records must continue until the records are obtained unless it is reasonably certain the records do not exist or that further efforts to obtain them would be futile. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(2), (c)(3). Second, the VBA Live Manual provides a table detailing the steps the AOJ must take to verify herbicide exposure on a factual basis, when a veteran alleges exposure in locations excluding Vietnam or the Korean DMZ or Thailand. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 7, Block a (November 21, 2016). Step 1 of the M21-1 table states that the AOJ should ask the veteran to provide the approximate dates, location, and nature of the alleged herbicide exposure in Puerto Rico, including the VBMS AO - Exposure General Notice paragraph. In this regard, the Veteran has already provided some details of his alleged herbicide exposure in Puerto Rico from September 3, 1966 to December 15, 1966, after an earlier July 2009 VCAA notice letter was sent to him. However, he did not specifically describe how exactly he was exposed to Agent Orange or other herbicide after arriving at Roosevelt Road Naval Station on the Puerto Rico mainland, and then delivering food to Camp Garcia on the Isla De Vieques. In other words, he has not identified that the precise nature of the alleged herbicide exposure through touch, smell, or other sense. Step 2 of the M21-1 table states the AOJ should refer the case to the JSSRC Coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. However, in the present case, the Board sees the Veteran has in fact provided sufficient information to attempt to herbicide exposure in Puerto Rico. If he provides more information after this remand, that can be considered as well. Step 3 of the M21-1 table states that the AOJ should send an E-mail inquiry with the dates, location, and circumstances of claimed herbicide exposure in Puerto Rico to the Compensation Service at (VAVBAWAS/CO/211/AGENTORANGE) (mailto:AGENTORANGE.VBACO@va.gov) and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed at the Veteran's locations in Puerto Rico from September 3, 1966 to December 15, 1966. Steps 4 and 5 of the M21-1 table state that the AOJ should then send a request to the JSRRC for verification of alleged exposure to herbicides for the Veteran in Puerto Rico from September 3, 1966 to December 15, 1966. The Board finds the Veteran has already provided sufficient information to permit a search by JSSRC in this case. In summary, upon remand, the AOJ should follow the above steps listed in the M21-1 table in order to attempt to verify exposure to herbicides for the Veteran in Puerto Rico from September 3, 1966 to December 15, 1966. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the NPRC, RMC, or any other appropriate entity and secure the Veteran's complete service personnel records (SPRs) for his period of active military service with the U.S. Marine Corps from January 1966 to January 1969. (An earlier January 2013 Request for Information by the AOJ indicates the request for the Veteran's personnel files was made with PIES request code O16, which is specifically for asbestos cases. However, it does not appear the AOJ made a complete request for the entire personnel file using PIES request code O18 (for performance ratings) or PIES request code O50 (for securing the entire personnel file in paperless appeals). See VBA Live Manual, M21-1, Part III, Subpart iii, Chapter 2, Section D, Topic 3, Block c (January 12, 2017). Any additional SPR performance reports or evaluations, for example, might include descriptions of the specific duties the Veteran performed in Puerto Rico from September 3, 1966 to December 15, 1966, to include the possibility of exposure to herbicides). If any requested SPRs are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these SPRs must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such SPRs must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After instruction #1 is completed, the AOJ must attempt to verify exposure to herbicides for the Veteran in Puerto Rico from September 3, 1966 to December 15, 1966, on a factual basis. To do this, the AOJ must follow the appropriate steps listed in the table in the VBA Live Manual. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 7, Block a (November 21, 2016) - (Table for Verifying Herbicide Exposure on a Factual Basis in Other Locations). Specifically the AOJ must do the following per the M21-1 table: (A) Ask the Veteran to once again provide the approximate dates, location, and nature of the alleged herbicide exposure in Puerto Rico, including the VBMS AO - Exposure General Notice paragraph. (In this regard, the Veteran has already provided some details of his alleged herbicide exposure in Puerto Rico from September 3, 1966 to December 15, 1966, after an earlier July 2009 VCAA notice letter was sent to him. However, he did not specifically describe how exactly he was exposed to Agent Orange or other herbicide after arriving at Roosevelt Road Naval Station on the Puerto Rico mainland, and then delivering food to Camp Garcia on the Isla De Vieques. In other words, he has not identified that the precise nature of the alleged herbicide exposure through touch, smell, or other special senses). (B) Then send an E-mail inquiry with the dates, location, and circumstances of the claimed herbicide exposure in Puerto Rico to the Compensation Service at (VAVBAWAS/CO/211/AGENTORANGE) (mailto:AGENTORANGE.VBACO@va.gov) and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed in Puerto Rico at the Veteran's locations from September 3, 1966 to December 15, 1966. (The October 2017 Joint Motion from the Court strongly suggested that the Veteran has already provided sufficient information to E-mail the Compensation service, for purposes of reviewing the DoD's inventory of herbicide operations in this case). (C) Then send a request to the JSRRC for verification of alleged exposure to herbicides for the Veteran in Puerto Rico from September 3, 1966 to December 15, 1966. (The October 2017 Joint Motion from the Court strongly suggested that the Veteran has already provided sufficient information to permit a search by JSSRC in this case). To effectuate the above requests, the AOJ must send the summary written below of the circumstances of the Veteran's alleged herbicide exposure (as well as any additional information the Veteran provides in response to the current Board remand ), to (1) the Compensation Service at the Agent Orange Mailbox and to (2) the JSRRC. The summary is as follows: "The Veteran contends that his prostate cancer and type II diabetes mellitus developed post-service as the result of alleged exposure to Agent Orange or other herbicides, while he was stationed with the Marine Corps on temporary additional duty (TAD) in Puerto Rico, from September 3, 1966 to December 15, 1966. He believes this herbicide exposure occurred while assigned to Roosevelt Road Naval Station in Ceiba, Puerto Rico, and Camp Garcia, on the Isla de Vieques, Puerto Rico (there was a small U.S. Naval Base on this island). In particular, after arriving at Roosevelt Road Naval Station on the Puerto Rico mainland, he then delivered food to Camp Garcia on the Isla De Vieques. He indicates he was later told that Camp Garcia on Isla De Vieques was exposed to Agent Orange or other herbicides. He maintains that both of these bases in Puerto Rico eventually had to be closed due to the presence of herbicides, which were deemed dangerous to one's health. The Veteran states that VA's own website has a Department of Defense (DoD) inventory of herbicide test and storage sites in Puerto Rico, during the period the Veteran served there from September 3, 1966 to December 15, 1966.." "SPRs confirm that the Veteran served in Puerto Rico on temporary additional duty (TAD) from September 3, 1966 to December 15, 1966. He served with the following Marine Corps Companies during this time - H&S Company 3-2-2 (REIN) FMF Camp Lejeune and H&S Company Bd. Bn. 2dMar 2d Marine Division FME (Field Maintenance Equipment). SPRs document that the Veteran embarked on the USS Rankin in September 1966 in connection with CARIB 3-66 and performed his duty in various Caribbean countries, to include Puerto Rico. SPRs specifically establish the Veteran was stationed for various periods of time in September 1966, October 1966, November 1966, and December 1966 at Isla De Vieques, Puerto Rico, for training exercises, and at San Juan, Puerto Rico (port of call)." 3. After completing instructions #1-2, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing instructions #1-3, the AOJ should consider all of the evidence of record and readjudicate both service connection issues on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter or 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 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. §§ 5109B, 7112 (2012). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).