Citation Nr: 1020210	
Decision Date: 06/02/10    Archive Date: 06/10/10

DOCKET NO.  08-24 495	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUE

Entitlement to service connection for type II diabetes 
mellitus, to include as secondary to herbicide exposure.


ATTORNEY FOR THE BOARD

A. Robben, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to March 
1970.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from an October 2006 rating decision issued by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Roanoke, Virginia, which denied service connection for type 
II diabetes mellitus.

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if further action is required.


REMAND

The Veteran contends that he incurred type II diabetes 
mellitus due to exposure to herbicide agents during active 
service in Korea and during training at the Fort McClellan 
chemical lab school.  VA regulations provide that, if a 
veteran was exposed to an herbicide agent during active 
service, presumptive service connection is warranted for 
several diseases, including diabetes mellitus.  38 C.F.R. § 
3.309(e) (2009).

The Department of Defense (DOD) has confirmed that the 
herbicide, Agent Orange, was used from April 1968 through 
July 1969 along the Korean demilitarized zone (DMZ) to 
defoliate the fields of fire between the front line defensive 
positions and the south barrier fence.  The treated area was 
a strip of land 151 miles long and up to 350 yards wide from 
the fence to north of the civilian control line.  There is no 
indication that the herbicide was sprayed in the DMZ itself.  
If it is determined that a veteran who served in Korea during 
this time period belonged to one of the units identified by 
DOD, then it is presumed that he or she was exposed to 
herbicides containing Agent Orange, and the presumptions 
outlined in 38 C.F.R. § 3.309(e) will apply.  VA Adjudication 
Procedure Manual, MR21-1MR, Part IV, Subpart ii, Chapter 2, 
Section C.  

If the Veteran served in a different unit located in Korea 
during this time period, the Veteran's unit's location must 
be verified through VA's Compensation and Pension Service and 
the United States Army & Joint Services Records Research 
Center (JSRRC).  Id.

The Veteran's unit is not among those identified as having 
served in or around the DMZ during the applicable time period 
in Korea.  However, in a September 2007 notice of 
disagreement and an August 2008 VA Form 9, the Veteran 
asserted that as part of his service as a chemical lab 
specialist he served in Korea from May 29, 1969, to March 13, 
1970.  During that time, he landed at Kimpo Air Force Base, 
where he stayed for 1-2 days, was transported from the 177th 
replacement center to Camp Casey and was then transported to 
the 8th Army 121st Evacuation Hospital.  

While the RO requested verification of any herbicide exposure 
while at Fort McClellan, the record does not show attempts to 
determine whether the Veteran served along the DMZ while 
stationed in Korea.  

VA has a duty to make reasonable efforts to help a claimant 
obtain evidence necessary to substantiate his claim.  38 
U.S.C.A. § 5103A (West 2002); 38 C.F.R.  
§ 3.159(c), (d) (2009).  This "duty to assist" contemplates 
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).  

Therefore, as such information is relevant to the Veteran's 
claim, morning reports, specific information on the location 
in which the Veteran's unit served in Korea, and any evidence 
that he was detailed to or traveled along the DMZ must be 
requested.  MR21-1MR, Part IV, Subpart ii, Chapter 2, Section 
C

Accordingly, the case is REMANDED for the following action:

1.  The RO or AMC should undertake the 
development required by, MR21-1MR, Part 
IV, Subpart ii, Chapter 2, Section C, to 
determine whether the Veteran served in 
the DMZ during the period when herbicides 
were used.

2.  If the benefits sought on appeal 
remain denied, issue a supplemental 
statement of the case before the claims 
file is returned to the Board, if 
otherwise in order.

The Veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).



_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  This remand is in the 
nature of a preliminary order and does not constitute a 
decision of the Board on the merits of your appeal.  
38 C.F.R. § 20.1100(b) (2009).