Citation Nr: 1142255 Decision Date: 11/15/11 Archive Date: 11/30/11 DOCKET NO. 09-25 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 2. Entitlement to service connection for congestive heart failure, to include as due to exposure to herbicides. 3. Entitlement to service connection for Hodgkin's lymphoma, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2011, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. With respect to the Veteran's service connection claims for diabetes mellitus, congestive heart disease and Hodgkin's lymphoma, all including as due to herbicide exposure, the Board notes that he has contended that he was exposed to herbicides during active service. He has stated that he was exposed to herbicides while at the Naval Air Station Cecil Field in Florida from September 1968 to April 1970 when he had to spray herbicides around the outside of building to keep weeds and grass from growing there. He reported that he also stored equipment around the area that was sprayed. He also reports that he was in the Naval Air Station at Jacksonville on four occasions for two days each time and that Agent Orange was stored there. Also he states that he was aboard THE SHANGRI LA in January 1969 for two days. He stated that the ship had just returned from Vietnam and that he was exposed to herbicides while aboard that ship. In addition, he reports that while stationed at Naval Air Station at Cecil Field he worked as a mechanic on ground support equipment cleaning engines with strong herbicides. The Veteran does not claim, and the record does not show, that he ever served in Vietnam. The Veteran's active service does not meet the regulatory definition of Vietnam service found in 38 C.F.R. § 3.307(a)(6)(iii) and upheld by the Federal Circuit in Haas. See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009). Because the Veteran did not have active service in Vietnam, his in-service herbicide exposure cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309. The Veteran may still submit evidence to support service connection on such basis, including affirmative evidence of herbicide agent exposure in service as well as medical opinion evidence linking such exposure to current disease. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Joint Services Records Research Center (JSRRC) notified VA in May 2009 that it could not provide evidence to support a Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era. It was stated that this was because it had to date found no evidence indicating either of those ships transported herbicides from the United States to Vietnam or that ships operating off the shores of Vietnam used, stored, tested or transported herbicides. The Joint Services Records Research Center (JSRRC) did not research or report on whether herbicides were present and sprayed outside of buildings at the Naval Air Station Cecil Field while the Veteran was serving there or whether herbicides were stored at Naval Air Station Jacksonville. As such, the Board finds that there is a further duty to assist the Veteran with his claim. VA has specific procedures to determine whether a Veteran was exposed to herbicides in a location other than the Republic of Vietnam. See VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.n. To date, there is no indication of record that the procedures for properly developing and investigating the Veteran's service connection claims based on exposure to Agent Orange Cecil Field Naval Air Station or Jacksonville Naval Air Station have been followed. Thus, the RO/AMC should further develop this claim as required by VA's M21-MR. The Veteran should also be provided with complete notice of the information and evidence needed to substantiate his service connection claims pursuant to the Veteran Claims Assistance Act (VCAA). The Veteran should also be afforded VA examinations on remand to determine the nature and etiology of his disorders and their relationship to service, if any. See Green, 1 Vet. App. at 124. Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. for the following action: 1. The RO must attempt to verify, using the JRSSC, or other appropriate agency, whether herbicides were sprayed on lawn areas at Cecil Field from September 1968 to April 1970. The RO should also attempt to verify if herbicides were stored at Jacksonville Naval Air Station from September 1968 to April 1970. The RO should further attempt to determine if herbicides were used to clean engine components at Cecil Field Naval Air Station when the Veteran was stationed there. In doing so, the RO must comply with the provisions of VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.n to attempt to verify the Veteran's claimed herbicide exposure based on his service as noted. The Veteran should be contacted and asked to provide the approximate dates, location and nature of the alleged exposures. Then the RO should take appropriate action, which should include again contacting the Joint Services Records Research Center (JSRRC), to determine whether herbicides were used as alleged. 2. After all of the above development is completed, schedule the Veteran for VA examinations to assess the nature and etiology of the diabetes mellitus, congestive heart failure and Hodgkin's lymphoma, and their relationship to service, if any. The claims folder and a copy of this remand must be made available to the examiners. The examiners should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiners should be conducted at this time and included in the examination report. As to the evaluation of Hodgkin's lymphoma and diabetes, the examiner should assess the nature and etiology of the currently diagnosed disorders and their relationship to service, if any. The examiner is asked to indicate whether either of the currently diagnosed disorders was manifested during the period of active service. If not, the examiner is asked to express an opinion as to whether either disorder is at least as likely as not (i.e., 50 percent or greater possibility) related to active service. As to congestive heart failure, the examiner is asked to indicate whether the Veteran has currently diagnosed with the disorder and if so, whether it was manifested during the period of active service. If not, the examiner is asked to express an opinion as to whether the claimed disorder is at least as likely as not (i.e., 50 percent or greater possibility) related to active service. 3. After the requested examinations have been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. The examination reports should be returned to the examiner if they are deficient in any manner. 4. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2011). _________________________________________________ F. JUDGE FLOWERS 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) (2011).