Citation Nr: 21028034 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-37 824 DATE: May 10, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure, is remanded. Entitlement to service connection for hypothyroidism, to include as due to herbicide exposure, is remanded. Whether new and material evidence has been received to reopen the service connection claim for a heart disorder, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Marine Corps from July 1973 to December 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the claims were remanded by the Board for further development and have since returned for appellate review. Specifically, the Board instructed the RO to request the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the Veteran's alleged herbicide exposure while in service. As will be discussed below, a remand is necessary to ensure compliance with the directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The Veteran has a current diagnosis of hypothyroidism, diabetes mellitus, and left ventricular hypertrophy. He has asserted that his conditions are related to herbicide exposure while in service. Particularly, he stated that he was exposed to herbicides while serving in Okinawa, Japan in 1974. He reported that the area where he was stationed was sprayed with a defoliant which he was told to be Agent Orange. He also reported that he began to have health problems, including heart pains, palpitations, swallowing, and stomach problems while in service. In an April 2021 correspondence, the Veteran added that his friend drove one of the two tractors used to spray the herbicides. He stated that there were always two tractors that sprayed the chemicals and sometimes they sat on them to each lunch. He described the herbicides as chemicals that would destroy all the foliage leaving dust and chemicals to fly in the air during the summer months. In response to the remand, the RO sent a request to seemingly the VA Benefits office (VBA) in Washington. See November 2019 correspondence. In a November 2019 correspondence, the VBA responded indicating it did not identify a location in Okinawa in which Agent Orange was used, tested, stored, or transported. Further, Agent Orange was developed for jungle combat and there were no combat operations on Okinawa. Additionally, it noted that Okinawa was not on the shipping supply line that went directly from storage at Mobile, Alabama or Gulfport, Mississippi to South Vietnam via merchant ships. Lastly, use of Agent Orange by the U.S. military was terminated by 1971. The office suggested referral of the request to the JSRRC. In July 2020, the RO sent a request to JSRRC to verify the Veteran's claim. See July 2020 correspondence. However, no response has been associated with the claims file. Therefore, the Board finds the RO has not complied with the previous directive and remand is necessary once again for compliance. The Board notes that, in response to VA's request for authorization to retrieve private treatment records from hospitals in the Philippines, the Veteran indicated in an April 2021 correspondence that he would rather not take this step unless necessary. He stated that the hospitals, Doctors Hospital and River Side Hospital, do not keep their records for many years. Additionally, he could send the records, but it would take months because of the postal service. While he noted he would send his heart scans, he felt it was unnecessary because VA already had information proved he has a heart disability. Thus, it appears the Veteran declined to send the completed authorization to obtain medical records. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should send a letter to the Veteran to clarify whether he wants his claims to be decided despite the lack of treatment records from Doctors Hospital and River Side Hospital, either by way of a signed authorization or his submission. 2. After the foregoing, the AOJ should attempt to verify the Veteran's claimed in-service exposure to herbicides through the JSRRC (to include any response to the prior July 2020 request), and any other resource deemed necessary. Specifically, the AOJ should send a request to verify whether the Veteran was potentially exposed to an herbicide agent during his service in Okinawa, Japan. The Board notes the Veteran has provided specific details regarding his exposure, including photographs. All efforts to obtain this information must be documented in the claims file. If there is a negative response, such should be associated with the record. 3. After all available evidence has been associated with the record, the AOJ should review the evidence and determine if further development is warranted. If the evidence of record verifies exposure to an herbicide agent in service, a VA examination and medical opinion should be obtained to address whether the Veteran's claimed thyroid, heart, and diabetes conditions are related to his military service, including his herbicide exposure. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.