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 
jenkinsmitchell@example.net. 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).





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