Citation Nr: 1535470 Decision Date: 08/19/15 Archive Date: 08/31/15 DOCKET NO. 13-22 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for diabetes mellitus, type 2 to include as due to exposure to Agent Orange and/or Camp Lejeune Contaminated Water (CLCW). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Phillip Hatfield, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1974 and June 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim of entitlement to service connection for diabetes mellitus, type 2, and for hearing loss. An August 2013 rating decision granted service connection for hearing loss; accordingly, that claim is not on appeal. In April 2015, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. The undersigned Veterans Law Judge agreed to hold the record open for 30 days to allow the Veteran an opportunity to supplement the record with additional evidence or argument. In April 2015, the Veteran submitted such, with a waiver of consideration of that evidence by the Agency of Original Jurisdiction (AOJ). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the additional delay that will result from this remand, but it is necessary that there exists a complete record upon which to decide the claims for service connection, so the Veteran is afforded every possible consideration. While the Veteran's claim was initially based upon having been exposed to contaminated water at Camp Lejeune, North Carolina, he has also asserted that his diabetes could be due to herbicide exposure while stationed in Okinawa during active service. In April 2015, the Veteran stated that he was stationed at Camp Hansen, Okinawa, Japan, in 1973; and that he was exposed to herbicides while serving at a northern training area. He indicated that he had only one family member who had had diabetes. In support of his claim, the Veteran submitted news articles suggesting that Agent Orange was likely used in Okinawa during the Vietnam Era. In denying the Veteran's claim on the basis of Agent Orange exposure, the RO stated in an August 2013 supplemental statement of the case that there was no evidence to support duty status in Vietnam during the Vietnam Era to warrant presumptive consideration for type II diabetes mellitus. The Board notes that 38 U.S.C.A. § 1116(a) provides for presumptive service connection on the basis of herbicide exposure for diseases specified in 38 U.S.C.A. § 1116(a)(2), which manifested to a degree of 10 percent within a specified period, in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Additionally, 38 C.F.R. § 3.309(e) provides that diabetes mellitus is a disease presumptively associated with in-service exposure to herbicides. While the presumption of exposure applies only to Veterans who served in Vietnam and along the DMZ in Korea during the relevant timeframes (see also 80 Fed. Reg. 35,246, 35,248 (June 19, 2015)), Veterans may be entitled to service connection for diseases associated with herbicide exposure on a direct rather than presumed basis. Although the Veteran does not contend that he was in Vietnam but in Okinawa, the Board observes that VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), directs that the RO or Appeals Management Center (AMC) must ask the Veteran for the approximate dates, location, and nature of the alleged exposure. The RO or AMC must then send a detailed statement of the Veteran's claimed herbicide exposure to the Compensation and Pension (C&P) Service via e-mail, and a review be requested of the inventory of herbicide operations maintained by the Department of Defense (DoD) to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. It does not appear that the required evidentiary development procedures set forth above have been followed. The United States Court of Appeals for Veterans Claims has consistently held that evidentiary development procedures provided in the Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty-to-assist requirement when it failed to remand the case for compliance with the evidentiary development called for by M21-1). Thus, the Board concludes that this matter must be remanded, including for compliance with the procedures set forth in the VA Adjudication Manual. Accordingly, the case is REMANDED for the following action: 1. Prepare a detailed memorandum outlining the Veteran's claimed herbicide exposure, to include the approximate dates, locations, and nature of the Veteran's alleged exposure to herbicides or Agent Orange in Japan; and also any other reported exposure. The RO or AMC should also consider for inclusion in the memorandum the lay statements, testimony and written material provided by the Veteran in support of his claim. 2. Based on the prepared memorandum, furnish a description of exposure to C&P via email, and request a review of DoD inventory of herbicide operations in order to determine whether herbicides were used as alleged. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.o. If the response from C&P confirms that herbicides were used as alleged, then the RO or AMC should determine whether service connection is otherwise in order. If confirmation is not obtained, the RO or AMC should then send an inquiry to the JSRRC for verification of alleged herbicide exposure. 3. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record 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 2014). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).