Citation Nr: 1806311	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  11-15 903	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for diabetes mellitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from June 1969 to June 1972 and from October 1972 to March 1995.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January and March 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) above.  

This appeal was previously before the Board in August 2017 and, at that time, included the diabetes mellitus claim, as well as claims regarding whether new and material evidence had been submitted to reopen claims for entitlement to service connection for carpal tunnel syndrome affecting the bilateral wrists, a lumbar spine disability, and a cervical spine disability.  In the August 2017 decision, the Board reopened the carpal tunnel syndrome, lumbar spine, and cervical spine claims and remanded the reopened claims for additional evidentiary development.  The Board also denied entitlement to service connection for diabetes mellitus.  As will be discussed in greater detail below, the portion of the August 2017 decision that denied entitlement to service connection for diabetes mellitus is vacated herein and will be remanded for evidentiary development.  

Accordingly, the issue of entitlement to service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On August 18, 2017, the Board issued a decision that, in pertinent part, denied entitlement to service connection for diabetes mellitus.  

2.  At the time of the August 18, 2017 decision, the record contained evidence regarding the Veteran's service in Korea which was not properly considered by the Board in its August 2017 decision.  



CONCLUSION OF LAW

The criteria for vacating the portion of the Board decision issued on August 18, 2017 that denied entitlement to service connection for diabetes mellitus have been met.  38 U.S.C. § 7104 (a) (West 2012); 38 C.F.R. § 20.90 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

As noted above, on August 18, 2017, the Board issued a decision that denied entitlement to service connection for diabetes mellitus.  In that decision, the Board noted the Veteran served in Korea from July 1982 to July 1983 and determined that such service did not trigger the application of the presumption of exposure to herbicides, as the presumption only applies to veterans who served in Korea from April 1, 1968 to August 31, 1971 or in Vietnam from January 9, 1962 to May 7, 1975 for Vietnam.  See38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iv).

However, the Board did not consider evidence of record which shows the Veteran also served in Korea from February 1970 to March 1971.  

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C. § 7104 (West 2012); 38 C.F.R. § 20.904 (a) (2017).  

As the August 2017 Board decision failed to consider all of the evidence of record, that decision is hereby vacated with respect to the denial of entitlement to service connection for diabetes mellitus to ensure that the Veteran is afforded due process under the laws and regulations administered by VA.  38 U.S.C. § 7104; 38 C.F.R. § 20.904.



ORDER

The portion of the August 18, 2017 Board decision that denied entitlement to service connection for diabetes mellitus is vacated.


REMAND

The Veteran is seeking service connection for diabetes mellitus and has reported serving near the Korean Demilitarized Zone (DMZ) during service, thereby raising the theory of entitlement to presumptive service connection based upon herbicide exposure.  

The Veteran's service personnel records (SPRs) show that he served in Korea from February 1970 to March 1971 and, during that time, was a member of Company C of the 4th Maintenance Battalion.  However, the Veteran's unit is not a unit determined by the Department of Defense as one that operated in or near the Korean DMZ.  See VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 4, Block b. 

Nevertheless, when a Veteran claims exposure in Korea, and his or her service was either not between April 1, 1968, and August 31, 1971, or not in a unit or entity listed in the table, VA is required to send a request to the United States Army and Joint Service Records Research Center (JSRRC) for verification of exposure to herbicides.  M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 7, Block a.

Therefore, a remand is required to confirm whether the Veteran's service in Korea from February 1970 to March 1971 included service in or near the DMZ.  

Accordingly, the case is REMANDED for the following action:

1. Contact the JSRRC, or other appropriate entity, to determine whether it is at least as likely as not that the Veteran's unit (Company C, 4th Maintenance Battalion), or any unit to which his company was attached or provided support, served in or near the DMZ from February 1970 to March 1971.  

Any appropriate development to address this inquiry, such as request for or review of unit histories or other such records, must be conducted. 

2.	Readjudicate the claim.  

The appellant 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).




______________________________________________
L.M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs