Citation Nr: 1801118 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-26 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran submitted additional evidence, and waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record after the issuance of the August 2013 statement of the case. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board may properly consider all of the evidence of record. The appeal is REMANDED to the 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 claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board notes that the evidence does not show, and the Veteran does not contend, that his diabetes mellitus had its onset during service, within one year of his service discharge, or is related to any aspect of his military service other than his alleged exposure to herbicide agents. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). In this regard, the Veteran contends that his diabetes is related to his alleged exposure to herbicide agents while serving in the Republic of Vietnam or the Korean demilitarized zone (DMZ). Specifically, in written correspondences and during his September 2016 Board hearing, the Veteran alleged that he was sent to Vietnam in November or December 1965 and, once he arrived, he was told that there had been a mix-up in his orders. He further alleged that he was at a holding station in Saigon, Vietnam, for approximately 35 days and, while awaiting new orders, he performed duties around the compound. The Veteran indicated that he eventually was issued new orders and sent to Korea. Additionally, in support of his claim, the Veteran submitted a buddy statement from D.V., who indicated that he served with the Veteran in Korea from March 1966 to April 1967, and the Veteran had arrived from Vietnam in approximately January 1966. He further submitted two family members' names who he contends were stationed in Vietnam during the same reported time period. The law provides a presumption of service connection for certain diseases, including diabetes mellitus, type II, that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who, during active military, naval, or air service, served in Vietnam or in or near the Korean DMZ between April 1, 1968 and August 31, 1971, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). In the instant matter, the record does not support the Veteran's contention that he served in Vietnam. Specifically, his DD Form 214 and military personnel records do not reflect that he was awarded any decoration indicative of support of the mission in Vietnam, or show service in Vietnam. Additionally, in a July 2012 Memorandum, the RO made a formal finding as to the inability to verify the Veteran's claimed in-country Vietnam service. The Military Records Specialist who drafted such Memorandum noted that the National Personnel Records Center indicated that, "there is no evidence in this [V]eteran's file to substantiate any service in the Republic of Vietnam" and no records of in-country Vietnam service or exposure to Agent Orange, in response to the inquiries regarding the Veteran's service in Vietnam and/or Temporary Vietnam Duty/Visitation. Rather, the record reflects that he traveled directly to Korea in December 1965 where he remained until January 1967 with Company C, 2nd Battalion, 31st Infantry, 7th Infantry Division. In this regard, VA's Adjudication Procedures Manual, M21-1, includes a list of units or other military entities that the Department of Defense has identified as operating in the Korean DMZ during the qualifying time period of April 1, 1968, to August 31, 1971, that includes the 2nd Battalion, 31st Infantry. See M21-1 at IV.ii.1.H.4.b. However, as the Veteran's service in Korea concluded prior to April 1968, a presumption of herbicide exposure based upon such service is not warranted. See 38 C.F.R. 3.307(a)(6)(iii). Even so, the M21-1 indicates that a request should be sent to the Joint Services Records Research Center (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 or entity listed in IV.ii.1.H.4.b. See M21-1 at IV.ii.1.H.4.c. In the instant matter, as the record reflects that the Veteran served in a unit acknowledged by the Department of Defense as operating in the Korean DMZ, but such was outside of the recognized time period allowing presumptive service connection, the Board finds that a remand is necessary in order to contact JSRRC to attempt to verify whether the Veteran was exposed to herbicide agents coincident with his service in Korea. Accordingly, the case is REMANDED for the following action: 1. After requesting any necessary information from the Veteran regarding his alleged exposure to herbicide agents in Korea, send a request to JSRRC in an attempt to verify his exposure to herbicide agents consistent with his service in Korea from December 1965 to January 1967 with Company C, 2nd Battalion, 31st Infantry, 7th Infantry Division pursuant to M21-1, IV.ii.1.H.4.c. JSRRC should be provided with any necessary documentation. Any response should be documented in the claims file. 2. After completing the above actions, to include 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 claim should be readjudicated based on the entirety of the evidence. If the claim remains 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. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ 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).