Citation Nr: 21074662
Decision Date: 12/16/21	Archive Date: 12/15/21

DOCKET NO. 18-48 689
DATE: December 16, 2021

REMANDED

Entitlement to service connection for diabetes mellitus type II is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1965 to September 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In October 2021, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge. 

1. Entitlement to service connection for diabetes mellitus type 2 is remanded.

VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). This includes obtaining relevant records from a Federal department or agency, such as the Department of Defense (DoD). 38 C.F.R. § 3.159(c)(2). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010).

Here, the Veteran asks VA to obtain the 335th Maintenance Battalion unit history and a 1979 Department of Defense letter to support his claim. In November 2009, the Veteran submitted what appears to be a single page from a rating decision for another veteran. In it, the RO discusses the 335th Maintenance Battalion's unit history, which "notes that herbicides, orange, blue and monuron[,] were used in Korea from 1962 to 1970 from the DMZ line to I Corp Headquarters and the 1st ROK Army." And in April 2020, the Veteran submitted a newspaper article from the Hartford Courant. The author reports on disability benefits for veterans who served in Korea before April 1, 1968the start of the presumptive period of herbicide exposure in Korea. 38 C.F.R. § 3.307(a)(6)(iv). One in particular "obtained a 1979 Defense Department letter to the VA that cites a pilot Agent Orange program conducted by the United States on the Korean DMZ in 1967 on nine locations covering 80 acres." Because the unit history and letter have a reasonable possibility of helping to substantiate the Veteran's claim, the Board must remand to allow VA to request them.

Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam).

The matter is REMANDED for the following action:

1. Obtain all outstanding VA treatment records and associate them with the claims file.

2. Make as many requests as are necessary to obtain the 335th Maintenance Battalion's unit history and the 1979 Department of Defense letter discussing a pilot Agent Orange program. If the records sought do not exist or that further efforts to obtain them would be futile, the claims file must be properly documented as to the unavailability of those records.

3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.

 

 

M. Donohue

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Canedy, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.