Citation Nr: 21026283 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-12 053A DATE: April 30, 2021 REMANDED Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute claim basis is remanded. Entitlement to service connection for headaches, to include as secondary to diabetes mellitus and Parkinson’s disease, and to include as due to herbicide exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute claim basis is remanded. REASONS FOR REMAND The Veteran had active service from December 1958 to December 1964. A November 2020 Board decision remanded these issues for further development. This development has been accomplished and the appeal has been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran died in March 2020. The appellant in this case is the Veteran’s surviving spouse who has been properly substituted. 38 C.F.R. § 3.1010. Under this statute, an eligible person may process any pending claims to completion following the death of a veteran. Such request must be filed not later than one year after the date of the Veteran’s death and, as provided for in the provision, a person eligible for this substitution will include “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title....” Id.; 38 U.S.C. § 5121A. In April 2020, within a year from the Veteran’s death in March 2020, the Appellant filed a request to substitute for the Veteran in the claims under appeal at the time of his death. Thus, the claims listed on the cover page of this decision are properly before the Board with the Appellant substituting for the deceased Veteran. 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute claim basis, is remanded. 2. Entitlement to service connection for headaches, to include as secondary to diabetes mellitus and Parkinson’s disease, and to include as due to herbicide exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute claim basis, is remanded. The Veteran, through the Appellant, seeks service connection for diabetes mellitus and headaches as due to exposure to herbicides during active service. He also claimed entitlement to service connection for headaches as secondary to diabetes mellitus. Specifically, in an April 2010 statement, the Veteran asserted that he was exposure to herbicides while stationed at Atsugi Air Force Base in Japan. He detailed that he believed he was exposed because he worked between a large golf course and the base’s flight line, and he contends that Agent Orange was used to control the vegetation in that area. He also contends that he was exposed to herbicides through second-hand contact with deliveries and personnel who traveled to Atsugi from east Asia and Vietnam. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Here, however, the Veteran claims exposure to herbicides while stationed in Japan. The presumption of service connection for herbicide-related diseases could also apply if exposure to herbicide agents is shown on a factual basis. In essence, if the veteran did not serve in Vietnam during the Vietnam era or at the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for herbicide-related diseases under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicide agents is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307 (a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicide agents has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide-related diseases is applicable. Military personnel records confirm the Veteran was stationed at Atsugi Air Force Base from at least April 1960 to December 1962. The Veteran and the Appellant have submitted numerous documents and articles throughout the appeal period which purport to support the use of Agent Orange and herbicides in Japan around the time the Veteran was stationed at Atsugi. A review of the record reflects that throughout the appeal period the RO has not yet made a formal finding regarding the Veteran’s claim of Agent Orange and herbicide exposure while stationed at Atsugi Air Force Base. Accordingly, a remand to request verification from the Joint Services Records Research Center (JSRRC) regarding herbicide agent exposure at Atsugi Air Force Base, Japan during the Veteran’s service there from April 1960 to December 1962. The matters are REMANDED for the following action: 1. Contact the JSRRC for verification of the Veteran’s claimed exposure to herbicide agents, including but not limited to Agent Orange, and any other chemicals while stationed at Atsugi Air Force Base, Japan from April 1960 to December 1962. If necessary, sequential requests should be made until the entire timeframe is covered. All requests and responses should be associated with the claims file. The results of this development should be outlined in a memorandum for the record, including whether these records support exposure to herbicide agents while stationed at Atsugi Air Force Base, Japan. 2. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran’s claims. If the benefit sought on appeal remains denied, issue to the Appellant and the Appellant’s representative a supplemental statement of the case and give an opportunity to respond thereto. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.