Citation Nr: 1041709 Decision Date: 11/05/10 Archive Date: 11/12/10 DOCKET NO. 08-06 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for diabetes mellitus as secondary to exposure to herbicides and/or pesticides. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1975. This matter is before the Board of Veterans' Appeals (Board) from an August 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for diabetes mellitus. The issue has been recharacterized to more accurately reflect the Veteran's claim. 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 maintains that he was exposed to herbicides and pesticides during the performance of his duties as an entomologist. He was stationed at Kirkland Air Force Base (AFB) from May 1973 until his discharge in August 1975. Personnel records establish that the Veteran handled toxic pesticides as part of his duties. In correspondence dated June 2006, the Veteran stated that his duties as entomologist consisted of spraying and storing herbicides and pesticides. He further stated that he routinely sprayed the border around Sandia Base (near Kirkland AFB) with Surflan and other herbicides. The Veteran alleged that the warehouse next to his office was used to store open containers of Agent Orange, and that he was exposed to the storage area on a daily basis. In correspondence dated June 2007, the Veteran asked the RO to contact the Air Force and obtain a list of the herbicides and pesticides stored in the warehouse during the time that he was stationed at Kirkland AFB. In August 2007, the Veteran submitted a page from a December 1971 Military Entomology Operational Handbook. This document lists the herbicide 2, 4-D + 2, 4, 5-T, high volatile ester as a standard stock herbicide that was used for tactical purposes and "not for base-type pest control operations." (Emphasis in original). The claim file also contains an undated document with a list of locations where Agent Orange was used. It appears that this list was generated by the RO. Kirkland AFB is not on the list. In correspondence dated February 2008, the Veteran stated that he was stationed at Kirkland AFB from 1973 to 1975, and that "2,4-D and other soil steralants were commonly used in the maintenance of security of fence lines and water pump stations around Kirkland AFB and Sandia Base. He further stated that he had to use special respirators and clothing while using these chemicals. The Veteran claimed that Agent Orange "was one of the chemical[s] listed on the list." In an October 2010 Hearing Memorandum, the Veteran's representative stated that the Veteran did not spray Agent Orange, but was exposed to it because it was stored in the same area where he worked. The RO did not submit a request to the Joint Services Records Research Center (JSRRC) in an attempt to verify the Veteran's potential exposure to herbicides at Kirtland AFB from 1973 to 1975. Instead, the RO relied upon an April 2010 VA Memorandum finding a lack of information required to corroborate herbicide exposure at Kirtland AFB. The Armed Forces Pest Management Board (AFPMB) maintains and provides listings of all approved herbicides and pesticides used on U.S. military installations, and has done so since 1957. The RO did not ask AFPMB to request information regarding the Veteran's potential exposure to commercial herbicides and pesticides. A remand is required to make such an inquiry of JSRRC and AFPMB. The presumptions of service connection for certain diseases for herbicide exposed Veterans do not revolve around exposure to specific herbicides; the regulation instead specifies that component chemicals pose a danger. As it is possible that the Veteran's duties exposed him to such chemicals, further development is required. In addition, the Veteran stated that he received treatment for his diabetes from Dr. NAD from January 1990 to March 2006. A review of the record shows that Dr. NAD provided medical records for the time period of January 2001 to March 2006. The records prior to January 2001 need to be obtained. Accordingly, the case is REMANDED for the following action: 1. Once a signed release is received from the Veteran, obtain outstanding private treatment records from Dr. NAD from January 1990 to December 2000. Document any negative response and inform the Veteran so that he may attempt to procure any missing records on his own. 2. Send inquires to JSRRC and the Armed Forces Pest Management Board to determine which herbicide and pesticide agents were used on and around Kirtland AFB and Sandia Base between May 1973 and August 1975. The agencies should be asked to specify, if possible, whether any such agents contained "2,4- D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram." 38 C.F.R. § 3.307(a)(6)(i). If the agencies are unable to provide the requested information, the RO must specifically address the likelihood of the Veteran's exposure to an "herbicide agent" in the performance of his duties based on the totality of the evidence of record. 3. If it is determined that the Veteran was exposed to an "herbicide agent" in the performance of his duties, schedule the Veteran for an appropriate VA examination. The examiner is to offer an opinion based on the medical evidence of record as to the likelihood that any diagnosed diabetes is related to the in-service exposure to such herbicide agent. The claim folder must be made available to the examiner in conjunction with the examination. A full and complete rationale for all opinions expressed is required. 4. Then, review the claim file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant 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. 2010). _________________________________________________ RONALD W. SCHOLZ 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) (2010).