Citation Nr: 1808573 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-00 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II (DM), as a result of exposure to herbicides. 2. Entitlement to service connection for hypertension, as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from March 1983 to February 1987. The Veteran also served in the Army Reserves and Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In December 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript of this hearing has been obtained and associated with the record. In August 2013 and August 2016, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran contends that he developed diabetes and hypertension as a result of exposure to herbicides during his active duty service at Ft. Drum, NY, and his reserve service at the Canadian Forces Base in Gagetown, New Brunswick, and Eglin Air Force Base (AFB), FL. According the his personnel records, the Veteran was stationed at Ft. Drum from April 5, 1986 to February 1987, and his Reserve unit was at Gagetown, New Brunswick, from June 1, 1987 to September 30, 1987. The Veteran's personnel records do not reflect that the Veteran was ever stationed at, or assigned to, Eglin AFB, FL. As noted in the August 2016 remand, information received from the Joint Services Records Research Center (JSRRC) in August 2014 reflects that Agent Orange was used at Ft. Drum in 1959 and at Eglin AFB from 1962 to 1970. There was no evidence of spraying, testing, transporting, storage, or usage at either location in 1986 or 1987. On September 5, 2014, a request was sent to JSRRC requesting verification of exposure at Gagetown, New Brunswick. Information received from the JSRRC in September 2014 indicates Agent Orange was used at Gagetown, New Brunswick, from December 1966 through October 1967 by the United States with Canada's permission. The JSRRC stated they did not have official documentation concerning the Canadian government's involvement in the dispersal of Agent Orange at Gagetown, but provided contact information if further inquiry was required. In December 2015, the Veteran submitted evidence that suggests that the Canadian government may have sprayed Gagetown and the surrounding communities with Agent Orange and other herbicides for up to 20 years after the 1967 testing by the United States ended, which would include the time period the Veteran was training at Gagetown. As such, in the August 2016 remand, the AOJ was instructed to obtain the exact dates of the Veteran's Reserve service, active duty training (ADT) and inactive duty training (IDT), and verify through the appropriate entity whether the Canadian government sprayed, tested, stored, or used Agent Orange at Canadian Forces Base Gagetown during the period of June 1, 1987 through September 30, 1987. The AOJ undertook some development, which showed that Agent Orange was not used at Canadian Forces Base Gagetown from June 1, 1987 to September 30, 1987, while the Veteran was stationed there. See February and March 2017 email correspondence and May 2017 VA Directed Development Exception Memorandum. However, a letter was received in May 2017 from Veterans Affairs Canada, after the final May 2017 Supplemental Statement Of the Case was issued, indicating that a request had been forwarded to the Access to Information and Privacy Unit of the Department National Defense in Canada, to determine if Agent Orange had been used at Canadian Forces Base Gagetown from June 1, 1987 to September 30, 1987. There is no further correspondence of record indicating what was determined from the Access to Information and Privacy Unit of the Department of National Defense in Canada, and although contact information for the organization is included in the letter, the record does not reflect that the AOJ has attempted to contact the organization directly. Furthermore, the AOJ failed to verify the Veteran's Reserve service, ADT and IDT, finding that since the Veteran did not serve during the time period that Agent Orange was used in Gagetown, obtaining the ADT and IDT dates would be futile and there was no need to comply with the August 2013 remand directives. See May 2017 VA Directed Development Exception Memorandum. First and foremost, the Board finds that a remand is required to determine what information, if any, was obtained from the Access to Information and Privacy Unit of the Department of National Defense in Canada. Additionally, the Board finds that as more development must be undertaken to definitively determine whether Agent Orange was used at Canadian Forces Base Gagetown from June 1, 1987 to September 30, 1987, while the Veteran was stationed there, the AOJ must obtain the exact dates of the Veteran's Reserve service, ADT and IDT, as directed in the August 2016 remand. See 38 C.F.R. § 3.159(c) (2017) (The duty to assist provides that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency.) Furthermore, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Confirm the exact dates of the Veteran's Reserve service, ADT, and IDT. 2. Then, contact the Access to Information and Privacy Unit of the Department of National Defense at the following address: Access to Information and Privacy Department of National Defense National Defense Headquarters MaJor-General George R. Pearkes Building 101 Colonel By. Drive Ottawa Ontario Canada K1A 0K2 Or by email at: ATIP-AIPRP@forces.gc.ca Or by telephone at: 1-888-272-8207 to determine if Agent Orange was used at Canadian Forces Base Gagetown from June 1, 1987, to September 30, 1987. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, including ordering VA examinations if necessary, the RO should readjudicate the claims in light of all evidence of record. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim(s) for benefits, to include a summary of the evidence and applicable law and regulations considered, and they should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review, if in order. The appellant 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). 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). _________________________________________________ BARBARA B. COPELAND 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).