Citation Nr: 1736565	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-18 680A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus type II as a result of herbicide exposure.

2.  Entitlement to service connection for ischemic heart disease as a result of herbicide exposure.


REPRESENTATION

Veteran represented by:  Colin E. Kemmerly, Attorney


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

A. VanValkenburg, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1966 to July 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2011 and May 2011 by the Department of Veterans Affairs (VA) Regional Office (RO).

In July 2014, the Veteran testified before the undersigned at a hearing via video-conference.  A transcript is associated with the claims file. 

The Board previously denied the claims of entitlement to service connection for diabetes mellitus and ischemic heart disease in a May 2015 decision.  The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court).  In a February 2017 Memorandum Decision, the Court vacated the May 2015 decision and the issues were remanded.  The case was subsequently returned to the Board.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Veteran asserts entitlement to service connection for diabetes mellitus and ischemic heart diseases based on in-service herbicide exposure from handling service members' clothing who served in Vietnam.  He contends exposure occurred in Camp Zama, Japan while serving as a medical corpsman from December 1966 to December 1968.  Further, he reports a specific instance where he developed a rash which he believes was caused by herbicides.  Service treatment records reflect treatment of a rash for two weeks in September 1967.  The Veteran and his attorney have not alleged any other theory of entitlement.  

In light of the Court remand, the Board finds that additional development is necessary prior to appellate review.  The Court determined that the Board failed to meet the duty to assist due to deficiencies in the July 2014 Board hearing.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The Board was instructed to "reassess" whether all necessary measures have been provided to assist the Veteran in substantiating his claim, particularly with regard to establishing actual exposure to herbicides.  

Three things are necessary to establish service connection: a current diagnosis, an in-service injury or event, and a nexus between the two.  In this case, the missing element necessary to establish service connection is evidence of exposure to an herbicide agent.  The Veteran should submit evidence to substantiate that missing element.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran and his attorney a letter that informs him of the issues on appeal.  The Veteran and his attorney should be advised that the missing element necessary to establish service connection based on the alleged theory of entitlement for both claims is actual exposure to herbicide agent(s).  Examples of the types of evidence that could be used to establish actual exposure that may have been overlooked include, an opinion from someone with specialized knowledge or training (such as scientific expertise) explaining how the Veteran was exposed to an herbicide agent(s).  

2.  After undertaking the development above, the Veteran's claims should be readjudicated.  If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board.

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

These claims 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. HENEKS
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) (2016).



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