Citation Nr: 0510017 Decision Date: 04/06/05 Archive Date: 04/15/05 DOCKET NO. 03 34-721A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for diabetes mellitus. WITNESS AT HEARING ON APPEAL The veteran REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. A. Mishalanie, Associate Counsel INTRODUCTION This case comes to the Board of Veterans' Appeals (Board) from a December 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied the veteran's claim for service connection for diabetes mellitus. In December 2003, a hearing was held before a local Decision Review Officer (DRO). In June 2004, the veteran requested a hearing before the Board. In October 2004, the Board asked him to clarify whether he wanted a hearing at the Board's central office in Washington, D.C., or at the RO. He indicated he wants a hearing before a Veterans Law Judge (VLJ) at the RO - a travel Board hearing. So a remand is necessary to schedule one. In addition to scheduling a travel Board hearing, further development is also needed before the Board can make a decision. So the appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran served in the U.S. Army during the Vietnam Era. His service personnel records confirm he was in the Adjutant General Corps (AGC) and was stationed overseas in Thailand from August 1967 to July 1969. A May 2002 letter from Dr. Grimes confirms the veteran has had diabetes for approximately 15 years - meaning since about 1987. The veteran is claiming his diabetes is related to exposure to Agent Orange during military service in the Republic of Vietnam. During his December 2003 hearing with the DRO, the veteran testified that he was in the Republic of Vietnam during his military service (p. 3). Unfortunately, certain portions of the hearing were inaudible and not recorded, so the transcript is incomplete. But the portions that were recorded indicate the veteran testified that at least one of his flights landed in Vietnam on his way from Thailand (p. 4). Previously, under 38 U.S.C.A. § 1116(a)(3) and 38 C.F.R. § 3.307(a)(6)(iii), in-service exposure to Agent Orange was presumed only in cases in which a veteran had a disease that was presumptively service connected. If none of the disorders for which service connection was claimed was a presumptive disorder, then in-service herbicidal exposure was not presumed. See Chase v. West, 13 Vet. App. 413, 415 (2000) (citing McCartt v. West, 12 Vet. App. 164, 168 (1999)). But this was changed by Section 201(c) of the Veterans Education and Benefits Expansion Act of 2001, which effectively reversed the decision in McCartt and provides for a presumption of exposure to herbicides (Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. 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. Pursuant to 38 U.S.C.A. § 1116(a)(2)(H) (West Supp. 2002), 38 C.F.R. § 3.309(e) (2003) provides that Type II diabetes mellitus is a disease presumptively due to in-service exposure to herbicides. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of Sec. 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of Sec. 3.307(d) are also satisfied. In turn, 38 C.F.R. § 3.307(a)(6)(i) (citing 38 U.S.C. § 1116(a)(4) as authority) provides that: For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975,... Further, 38 C.F.R. § 3.307(a)(6)(iii) (citing 38 U.S.C. §§ 501(a) and 1116(a)(3) as authority) provides that: 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 and has a disease listed at Sec. 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam"' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. The RO denied the veteran's claim for presumptive service connection for diabetes mellitus because the evidence did not show his service involved duty or visitation in Vietnam. Although his personnel record does not show any evidence of duty or visitation in Vietnam, he testified that he visited Saigon and that his plane stopped over in Vietnam on the way from Thailand. Unfortunately, because the transcript is incomplete, further clarification is needed from him. Accordingly, the case is REMANDED to the RO for the following development and consideration: 1. Prior to making any determination on the merits, ensure that all notification and development action required by the VCAA and implementing VA regulations is completed. In particular, ensure that the new notification requirements and development procedures contained in 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West 2002) and their implementing regulations, especially 38 C.F.R. § 3.159(b) and (c)(2), are fully complied with and satisfied. *This should include requesting the veteran submit all relevant information regarding any visitation or duty in the Republic of Vietnam. Specifically, request that he provide approximate dates and the itinerary for the flights mentioned in the December 2003 hearing transcript. Furthermore, request he submit any and all relevant evidence in his possession not currently on file. 2. Prepare a letter asking the U.S. Armed Services Center for Research of Unit Records (USASCRUR) to provide any available information that might corroborate the veteran's alleged service in the Republic of Vietnam. Specific attention is drawn to the December 2003 transcript and his alleged flights through Vietnam. Send USASCRUR copies of any information the veteran is able to provide regarding these flights, personnel records obtained showing service dates, duties, and units of assignment, etc. Specifically ask USASCRUR or, if necessary, the National Personnel Records Center (NPRC) for any morning reports, sick call reports, and accident logs during the time he visited or had duty in Vietnam. Request that USASCRUR verify whether (1) any flights he was on landed in the Republic of Vietnam, or (2) whether he otherwise actually served in Vietnam. 3. Then, schedule the veteran for a travel Board hearing in accordance with the docket number of his appeal. He should be appropriately notified of the date, time and location of his hearing, and a copy of this letter must be placed in his claims file If, for whatever reason, he decides that he no longer wants this type of hearing before a Veterans Law Judge (or any other type of hearing before the Board), then he should indicate this in writing and it, too, should be documented in his claims file. 4. Review the claims file. If any development requested is incomplete, take corrective action. 38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268 (1998). 5. Then readjudicate the claim in light of the additional evidence. If the benefit sought on appeal is not granted, send the veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond before returning the case to the Board for further appellate consideration. No action is required of the veteran or his representative until further notice is received. By this action, the Board intimates no opinion, legal or factual, as to the ultimate disposition warranted in this case. The veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded to the RO. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ Keith W. Allen 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) (2003).