Citation Nr: A22004984 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 210426-155078 DATE: March 22, 2022 REMANDED Entitlement to service connection for diabetes mellitus, type 2, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran submitted VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the July 2019 rating decision. In April 2020, the Agency of Original Jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the July 2019 rating decision. In the April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran selected the evidence submission lane. In May 2021, the Veteran's attorney submitted a request to change the Board review option, from the Evidence review docket to the Direct review docket. In August 2021, the Board issued a letter to the Veteran and his attorney informing them that a request to change the Board Appeal review option required completion of a new VA Form 10182. The Veteran and his attorney were also informed that a new Board Appeal option would only be accepted if the Veteran had not had a hearing, had not submitted additional evidence, and the new request was submitted within one year of the date of the VA decision letter or within 60 days of the Board's receipt of the VA Form 10182 (whichever is later). Lastly, the Veteran and his attorney were informed that a good cause extension request could be submitted if the request to change the Board review option was not submitted within the aforementioned time-frames. In October 2021, the Veteran and his attorney submitted a new VA Form 10182 and requested Direct review by a Veteran's Law Judge. In an October 2021 letter, the Board declined the Veteran's request to change the Board Appeal review lane because the request was untimely (was not received within 1 year of the date of the decision letter or within 60 days of the Board's receipt of the VA Form 10182). Furthermore, the Board noted that the Veteran had not provided good cause for an extension. Therefore, the appeal remains on the Evidence Review docket and the Board may only consider evidence of record at the time of the April 2020 rating decision, as well as any evidence submitted by the Veteran or his attorney with, or within 90 days from receipt of, the April 2021 VA Form 10182. 38 C.F.R. § 20.303. In the April 2020 rating decision, the AOJ readjudicated the Veteran's claim on the merits. Thus, the AOJ essentially found that new and relevant evidence was submitted to warrant readjudicating the claim. The Board is bound by this favorable finding and will not further address the matter of whether new and relevant evidence has been submitted. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Entitlement to service connection for diabetes mellitus, type 2, is remanded. The Veteran contends that his diabetes mellitus type II was caused by exposure to herbicide agents during his service. Specifically, in a February 2017 verified statement, the Veteran reported that he was stationed in Korea in 1969 and 1970 and that his base camp was the 6th Medical Depot in ASCOM, Korea. He reported traveling throughout Korea to service medical equipment and indicated that he was in the Korean DMZ during his travels. He also reported being at Camp Casey where he came across 55-gallon drums that contained highly toxic material used for getting rid of foliage, which he was later told was Agent Orange. In a July 2017 verified statement, the Veteran also reported that he was in the Korean DMZ from July 1970 to October 1970, at which time he was assigned to the 2nd Infantry Division. He also indicated that he received hostile fire pay while he was in the DMZ. Service personnel records confirm that the Veteran's military occupational specialty was a medical equipment repairman. The records also indicate that he served in Korea in the 6th Medical Depot from October 1969 to November 1970. It is also noted that he received hostile fire pay (HFP) in September and October 1970 and that he was on temporary duty at the 2nd Infantry Division in July 1970 for repair and installation of dental and medical equipment where he was authorized for government motor travel per diem in connection with travel in Korea. In September 2017, the Joint Services Records Research Center (JSRRC) reported a search of records from 1969 indicated that the 6th Medical Depot was located at ASCOM, South Korea and that records do not document any specific duties performed by the 6th Medical Depot unit members along the DMZ. JSRRC also indicated that there were no records of 55-gallon drums of Agent Orange being stored or spilled at Camp Casey. However, there is no indication in the file that JSRRC investigated the location of the 6th Medical Depot in 1970 (a February 2019 JSRRC response reports the location of the 65th Medical Group instead of the 6th Medical Depot) although the records indicate the Veteran served in the 6th Medical Depot in 1969 and 1970. Additionally, there's no inquiry into the location of the 2nd Infantry Division and whether it was in the DMZ. As this information should have been obtained prior to the April 2020 rating decision on appeal, the Board finds remand is required to correct a pre-decisional duty to assist error. See 38 U.S.C. § 5103A. The matters are REMANDED for the following action: Take all necessary action in accordance with applicable policy and procedure to verify the Veteran's asserted in-service exposure to herbicide agents in Korea, including conducting an inquiry into (i) the location of the 6th Medical Depot in 1970, (ii) the location of the 2nd Infantry Division in 1970, and (iii) whether the Veteran's receipt of hostile fire pay in September and October 1970 indicates he was in the Korean DMZ. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran. K. MARENNA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.