Citation Nr: 21042190 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-50 983 DATE: July 12, 2021 REMANDED Entitlement to service connection, to include on a presumptive basis, for a heart disability is remanded. Entitlement to service connection, to include on a presumptive basis, for diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1969 to October 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied service connection for ischemic heart disease and diabetes mellitus, type II. The Veteran appealed the Board's decision denying service connection for ischemic heart disease and diabetes mellitus, type II, to the United States Court of Appeals for Veterans Claims (Court), which, in October 2020, granted a Joint Motion for Remand (JMR). The Court's order vacated the Board's November 2019 decision and remanded the matter to the Board consistent with the terms of the joint motion. Entitlement to service connection, to include on a presumptive basis, for a heart disability and diabetes mellitus, type II is remanded. The Veteran seeks presumptive service connection based on herbicide agent exposure for ischemic heart disease and diabetes mellitus, type II. His contention is that he was exposed to herbicides in Okinawa, Japan and Da Nang, Vietnam. The Veteran asserts that he served on a temporary duty assignment for approximately 5 days in Da Nang, Vietnam. Due to the passage of time, the Veteran has expressed that he is unable to recall the exact dates of his assignment to Da Nang, Vietnam but that he believes it was in March 1971. In other words, the Veteran asserts that he was "on the ground" in Vietnam for several days. In its June 2014 rating decision, the AOJ denied the Veteran's claims because, it concluded, in part, that "[t]he required service in Vietnam is not shown, nor is there evidence of exposure to herbicides during military service." The record contains a June 2014 Formal Finding of Lack of Information Required to Corroborate Herbicide Exposure. This memorandum outlines the attempts made by VA to verify the Veteran's asserted herbicide exposure. The record does not mention, however, any attempts to obtain unit diaries, morning reports, or unit reports for the Veteran's unit. June 2018 electronic correspondence from the Marine Corps History Division states that the two possible units are BLT 2/4 (12 January 1971- 25 March 1971) and MABS-36 (30 March 1971 - 18 June 1971) that could corroborate the Veteran's allegations that he served in Da Nang, Vietnam. Accordingly, an October 2020 JMR stated that "the JSRRC Memorandum shows that VA did not make any effort to obtain unit diaries, morning reports, or unit reports. Similarly, they do not discuss any attempts made to verify the alleged temporary duty." The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This "duty to assist" contemplates, in part, that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159 (c)(4). The Board finds that the AOJ did not attempt to obtain relevant records in Federal custody, namely the unit diaries, morning reports, and unit reports, to verify the Veteran's asserted in-service herbicide exposure in Da Nang, Vietnam. Thus, VA did not satisfy its duty to assist the Veteran. Therefore, remand is warranted. By this remand, the Board makes no determination, express or implied, concerning the credibility of the Veteran's statements and contentions. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents in Da Nang, Vietnam. If more details are needed, contact the Veteran to request the information. Attempts should specifically be made to obtain unit diaries, morning reports, and unit reports for the following units and dates: a) BLT 2/4 (January 12, 1971 to March 25,1971) and b) MABS-36 (March 30, 1971 to June 18, 1971). If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. (Continued on the next page) 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.