Citation Nr: 18151956 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 10-03 207 DATE: November 21, 2018 REMANDED Entitlement to service connection for diabetes mellitus type II due to herbicide agent exposure is remanded. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1966 to July 1968. These claims come before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, April 2016, and March 2017 the Board remanded the appeal for additional development. 1. Entitlement to service connection for diabetes mellitus type II due to herbicide agent exposure is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. The Veteran seeks entitlement to service connection for his diabetes mellitus, type II, and his erectile dysfunction, both secondary to herbicide agent exposure. The Board finds that additional development is needed to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of his appeal, the Veteran essentially has contended that he was exposed to Agent Orange while stationed in the demilitarized zone (DMZ) in South Korea from 1967 to 1968 as part of the 2nd Battalion, 9th Infantry Division. Specifically, he asserts that he had guard duty along the DMZ and the Injun River (near the DMZ) and saw “quite a bit of dead vegetation” which he believes was probably sprayed with Agent Orange. The Veteran does not report firsthand knowledge that herbicide agents were sprayed during his tour, nor had he provided other evidence indicating herbicide use during his period of service in Korea. Under 38 C.F.R. § 3.307 (a)(6)(iv), effective February 24, 2011, VA extended presumption of herbicide exposure to veterans in certain units who served in an area in or near the Korean DMZ between April 1, 1968 and August 31, 1971. While the Veteran’s unit has been recognized as serving in this area, his service personnel records show he only served with this unit until March 2, 1968. According to a Record of Assignments, the Veteran began his transfer from South Korea on March 2, 1968 and arrived at Fort Campbell, Kentucky in the United States on April 8, 1968. The Veteran asserts that during his time in Korea he saw dead vegetation. He believes that this indicates use of an herbicide agent, specifically Agent Orange. In September 2008 correspondence, the Veteran reported that he served in Korea for about three or four months in 1968. In a May 2012 statement, the Veteran specifically reported that he was “on the DMZ from 1967 through March 1968.” He also submitted a buddy statement in June 2012. In that statement, a former servicemember (B.B.) asserted that he recalled serving in Korea with the Veteran in South Korea in 1967 and through March 1968. He also recalled seeing dead vegetation. In July 2013 correspondence, the Veteran was asked by VA to clarify his whereabouts during the crucial period at issue, April 1, 1968 to April 8, 1968. He did not respond. In April 2016, the Board remanded the Veteran’s claims to attempt to corroborate the Veteran’s claimed herbicide agent exposure. Specifically, the AOJ was instructed to contact the U.S. Army and Joint Services Records Research Center (JSRRC) to verify his herbicide agent exposure and JSRRC could refer the matter to the U.S. Army Medical Research Institute of Chemical Defense (USAMRICD) or Headquarters Department of the Army (HQDA) Office of the Surgeon General. In September 2016, the AOJ received a memorandum on herbicide agent use in Thailand. A September 2016 memorandum from the JSRRC concluded they were unable to verify the Veteran’s alleged exposure to Agent Orange. The JSRRC noted the Board’s remand requesting that the matter be referred to USAMRICD or HQDA Office of the Surgeon General but deemed this request unnecessary, as the Memorandum of Herbicide Use in Thailand stated they could not provide any additional evidence to support Thailand Agent Orange exposure. In its March 2017 remand, the Board noted that the memorandum issued on herbicide agent use pertains to Thailand and not South Korea, where the Veteran served on active duty. Further, the JSRRC based its decision not to refer the Veteran’s matter to USAMRICD or HQDA Office of the Surgeon General on the memorandum’s assertion that no further evidence could be provided in support of Agent Orange exposure in Thailand, which is not where the Veteran served. The Board then remanded the case to either clarify the JSRRC’s decision and reliance on the memorandum regarding herbicide use in Thailand, or to resubmit the request to the JSRRC to verify the Veteran’s reported herbicide agent exposure in Korea. In an April 2018 memorandum, the JSRRC stated: We reviewed the 1967 unit history submitted by the 2nd Battalion, 9th Infantry (2nd Bn, 9th Inf). We also reviewed the 1967 history submitted by the 2nd Infantry Division (2nd Inf Div) and the 1967 Chronology submitted by the 8th United States Army. The history documents that the Battalion Headquarters, and the Headquarters & Headquarters Company were located at Camp McGovern, South Korea and Companies A, B, and C were located at Camp Coursen, South Korea. However, the records do not document the use, storage, spraying or transportation of herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by the 2nd Bn, 9th Inf unit members on the Demilitarized Zone (DMZ) during the period January 6, 1967 - February 28, 1967. The 2nd Battalion, 9th Infantry is on the list of units identified by the VA as having operated in an area in or near the Korean Demilitarized Zone (DMZ). However, [the Veteran]’s tour dates do not fall within the VA required time frame, April 1, 1968 - August 31, 1971. As the JSRRC apparently only focused on the year 1967, the response does not aid the Board in ascertaining the use of herbicide agents in Korea in 1968. The Board finds that a remand is necessary to resubmit the request to the JSRRC to attempt to verify the whereabouts of the Veteran’s unit and any herbicide agent exposure in Korea, including along the DMZ, with focus on the period from January through March 1968. The matters are REMANDED for the following action: 1. Contact the Veteran and ask that he clarify his specific whereabouts from April 1, 1968 to April 7, 1968. 2. Contact the U.S. Army and Joint Services Records Research Center (JSRRC) to verify the Veteran’s claimed herbicide agent exposure. The JSSRC must be requested to provide information addressing the Veteran’s claim of exposure to herbicide agents in the Korean DMZ from January through March 1968. The JSRRC may refer the matter to the U.S. Army Medical Research Institute of Chemical Defense (USAMRICD) or Headquarters Department of the Army (HQDA) Office of the Surgeon General. A response from JSRRC or any other entity contacted should be associated with the claims file. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel