Citation Nr: 1807977	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  11-26 339	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for diabetes mellitus type II (diabetes) as a result of exposure to herbicide agents.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Steven H. Johnston, Associate Counsel


INTRODUCTION

The Veteran served had active service in the Navy from August 1971 to August 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Board finds that a remand is required before adjudicating this matter.  The Veteran contends that his diabetes is the result of his exposure to herbicide agents that he encountered during his naval service in the waters near the Republic of Vietnam.

Where the evidence establishes that veterans have been exposed to certain herbicide agents, VA regulations also presume that certain conditions, including diabetes, are connected to these veterans' exposure to those herbicide agents.  38 U.S.C. § 1112, 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e).  VA regulations presume that veterans who served on land or in the in-land waterways of the Republic of Vietnam between January 9, 1962, and May 7, 1975, were exposed to those herbicide agents.  38 C.F.R. § 3.307(a)(6)(iii).  Here, the record does not reflect, and the Veteran does not contend, that he served or set foot in Vietnam or its in-land waterways, qualifying for the presumption of exposure.  Instead, he contends that his exposure was a result of his duties on the flight deck of his ship.

The Veteran's military personnel records are not presently associated with the claims file.  In June 2009, the RO made a formal finding that the information provided was insufficient to permit additional research to be effective in confirming the Veteran's account of his actual exposure on the flight deck of the ship on which he served.  However, the Board finds that the Veteran's military personnel file may provide relevant information.  Records received in May 2008 document that the Veteran's ship was in the Gulf of Tonkin on several occasions between May 1972 and January 1973.  The Veteran's personnel file may contain records of these periods relevant to determining his claim, including the type of aircraft he dealt with, their destinations or the ordinance they carried.  VA's duty to assist requires VA to make all necessary efforts to obtain these records.  38 U.S.C. § 5107A (2012); 38 C.F.R. § 3.159(c).

Accordingly, the case is REMANDED for the following actions:

1. Obtain the Veteran's military personnel file and associate it with the claims file.  If, after exhaustive efforts, VA determines that these records cannot be obtained, the efforts of the search should be documented for the record and the Veteran should be provided appropriate notice that these documents cannot be obtained that complies with 38 C.F.R. § 3.159(e) (2017).

2. Once the development described above has been accomplished, undertake any further development that may be indicated as a result and then readjudicate the claim on appeal.  If the benefit sought remains denied, or less than the full benefit sought is granted, provide the Veteran and his representative with an appropriate Supplemental Statement of the Case (SSOC) and the requisite time to respond.  Then, if the claims file is otherwise in order, return this matter to the Board for further appellate review.

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 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).




_________________________________________________
Jonathan Hager 
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).