Citation Nr: 1233889 Decision Date: 09/28/12 Archive Date: 10/09/12 DOCKET NO. 09-28 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as a result of exposure to Agent Orange, chemical warfare agent, asbestos and/or radiation. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to type II diabetes mellitus and/or as a result of exposure to Agent Orange, chemical warfare agent, asbestos and/or radiation. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to type II diabetes mellitus and/or as a result of exposure to Agent Orange, chemical warfare agent, asbestos and/or radiation. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to type II diabetes mellitus and/or as result of exposure to Agent Orange, chemical warfare agent, asbestos and/or radiation. 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to type II diabetes mellitus and/or as result of exposure to Agent Orange, chemical warfare agent, asbestos and/or radiation. 6. Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus and/or as a result of exposure to Agent Orange, chemical warfare agent, asbestos and/or radiation. 7. Entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus and/or as a result of exposure to Agent Orange, chemical warfare agent, asbestos and/or radiation. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to March 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Waco, Texas, VA Regional Office (RO). Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Essentially, the Veteran asserts that he has type II diabetes mellitus as a result of exposure to Agent Orange, chemical warfare agent, asbestos, and/or radiation during service on Johnston Island and/or at Fort McClellan. In addition, he asserts that he has peripheral neuropathy of the upper and lower extremities, erectile dysfunction and hypertension as a result of such exposure or secondary to diabetes mellitus. Having reviewed the evidence, the Board finds that further development is necessary for a determination. The Veteran's DD form 214 reflects his military occupational specialty (MOS) was military police. In addition, service treatment records include a May 1994 Occupational Health Medical Surveillance In-Processing report reflecting that he was issued a mask, approved for a respirator and recommended for Nerve/Mustard medical surveillance category. In addition, a Johnston Atoll Health Clinic medical check-in questionnaire reflects that he arrived on Johnston Island on June 5, 1994 and that he was attached to the Military Police Company. Further, a July 1994 Johnston Atoll Health Clinic CPRP Screen/Physician's Written Opinion-Chemical Agent, notes prior medical examination and clinical studies revealed no increased risk of impairment of health from exposure to nerve and/or mustard agents, and thus no use of protective clothing and/or equipment was recommended. A March 1995 treatment record notes electrocardiogram (EKG) showed a questionable septal infarct of undetermined age, and records, dated in August 1995, note that he had just returned from Johnston Atoll and possible recent exposure to asbestos and other industrial compounds was noted. In December 2008 correspondence, the Veteran stated as follows: Finally, while being stationed at Johnston Atoll, the Island was hit by Hurrica[]ne John around August of 1994, in which the Island residents were evacuated to Hawaii. I was among the first to return and reoccupy the Island after the hurricane. It was our duty to begin cleaning up and securing the area. I was a Military Police Officer when I was stationed there and spent a great deal of time "Downrange" referring to the secured area where all the bunkers storing chemical weapons were located. The medical personnel tested your blood every time you came on to the Island and again when you were about to the leave the Island. The medical personnel compared the two test[s] and briefed you on the results as you were about to leave. In my briefing, my results clearly demonstrated a .03% rise in my blood levels from being exposed to some form of Chemical weapon . . . . The actual report listed a possibility of VX nerve agent, petholin, or Agent Orange. I was instructed to advise medical personnel at my next unit so that they could devise an appropriate course of action. In addition, he noted having served in Germany with duty to include providing security/support for the removal of nuclear weapons, and a March 1999 VA audio examination report notes a history of having been a missile crew member during service. At the hearing before the undersigned, the Veteran testified that on several occasions while stationed on Johnston Island, alarms sounded signaling that chemicals were leaking, at which time he had to don a protective mask and gloves and secure the site. Transcript at 5-6 (2012). In addition, he indicated exposure to chemical weapons at Fort McClellan. Id. at 15. He added that he was initially diagnosed with diabetes mellitus in 2007. Id. at 10. In addition, at the DRO hearing in September 2011 at the RO, the Veteran testified that while he did not wear a radiation badge while on Johnston Island, others around him did. Transcript at 10(2011). He further testified that the bunkers housing nuclear missiles on Johnston Island leaked, and that while on security patrol, he would reach his hand out of the High Mobility Multipurpose Wheeled Vehicle (Humvee), in which he was riding and physically touch the lock to ensure it was secure. Id. The Board notes that, other than the DD Form 214, the Veteran's service personnel records are not associated with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the § 3.159(c) (2011). Because service personnel records may be relevant to the claims on appeal, the Board must remand the appeal to obtain the Veteran's complete service personnel records. In addition, pertinent provisions of the VA Adjudication Manual set forth procedures that VA must follow to verify herbicide exposure in locations other than the Republic of Vietnam. See M21-1MR, Part IV.ii.2.C.10 (o), (s). Specifically, the M21-1MR provides that several items of development should be performed, including requesting that the Veteran provide the approximate dates, location, and nature of the alleged exposure. See M21-1MR, Part IV.ii.2.C.10 (o). If sufficient information is obtained, the RO is to furnish the Veteran's detailed description of exposure to Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE, and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as alleged. If Compensation Service does not confirm that herbicides were used as alleged, and the Veteran has provided sufficient information to permit a search by the United States Joint Services Records Research Center (JSRRC) guidelines, the RO should send a request to the JSRRC for verification of exposure to herbicides. If sufficient information cannot be obtained from the Veteran to meet the JSRRC guidelines, the RO is to refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. It does not appear that the Veteran's description of events from May 1994 to August 1995, including about August or September 1994 on Johnston Island during a clean-up and security detail following the evacuation of the Island after Hurricane John has been submitted to VAVBAWAS/CO/211/AGENTORANGE as specified in the VA manual, M21-1MR, Part IV.ii.2.C.10 (o), (s). On remand, the RO/AMC should send the Veteran's detailed description of exposure to Agent Orange on Johnston Island between May 1994 to August 1995 to Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE, and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as alleged. The Board notes that in several statements of record, including one received in December 2008, the Veteran never claimed such exposures in connection with service at Fort McClellan; however, at the hearing he claimed so. The RO should contact the Veteran and request any further information pertaining to approximate dates and nature of his reported additional exposure to Agent Orange at Fort McClellan. If sufficient information is provided, the above development should be followed. The Board notes that the transcript of the DRO hearing in September 2011 reflects the Veteran's testimony to the effect that he had both chemical and radiation exposure on Johnston Island, Transcript at 5 (2011), and the July 2012 Statement Of Accredited Representative reflects an assertion that the Veteran has erectile dysfunction secondary to radiation exposure. The Veteran has not been furnished notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) regarding the ionizing radiation aspect of his claims. The AMC/RO should provide him with such notice on remand. The RO should also undergo development in connection with the Veteran's claimed radiation and asbestos exposure. Also, the Board takes this opportunity to advise the Veteran that there are certain presumptions under law that ease the burden of proving a claim based on exposure to nuclear test radiation or ionizing radiation. Service connection for a disability claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 12 Vet. App. 145 (1999); aff'd, 232 F.3d 908 (Fed. Cir. 2000). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans under 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Significantly, diabetes mellitus, peripheral neuropathy, erectile dysfunction and hypertension are not listed. 38 C.F.R. § 3.309(d)(2)(v). Second, direct service connection may be established under 38 C.F.R. § 3.303(d) by showing that the disease or malady was incurred during or aggravated by service. Third, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a "radiogenic disease." See 38 C.F.R. § 3.311(b)(2),(4) (2011). The Board notes that diabetes mellitus, peripheral neuropathy, erectile dysfunction and hypertension are not listed as radiogenic diseases. 38 C.F.R. § 3.311(b)(2) (viii). Accordingly, while this matter is being remanded to satisfy certain procedural and due process concerns, the Veteran is advised of the importance of identifying or submitting evidence tending to show a direct relationship between diabetes mellitus, peripheral neuropathy, erectile dysfunction and hypertension and his active military service. In addition, the Board notes that the Veteran testified to having been evaluated by a toxicologist. Id at 13. Private toxicology records are not associated with the claims file. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). Thus, on remand, the RO/AMC should attempt to obtain the toxicology records. Lastly, the Board notes that in his December 2008 correspondence, the Veteran referenced evidence enclosed as packets A, B, C and D. This evidence is not associated with the claims folder, and on remand, the Veteran should be notified of such and afforded the opportunity to submit the evidence. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should provide the Veteran with VCAA notice of the information and evidence necessary to substantiate a claim for service connection based on exposure to ionizing radiation. 2. Notify the Veteran that the evidence referenced in his December 2008 correspondence, i.e., packets A, B, C and D, is not associated with his claims folder and invite him to submit the evidence. In addition, again notify the Veteran that he may submit lay evidence of any continuity of symptoms, to include statements from others familiar with the Veteran's complaints of symptoms referable to his diabetes mellitus, peripheral neuropathy of the upper and lower extremities, erectile dysfunction and/or hypertension during and/or since service. 3. After securing the proper authorization, request any additional pertinent medical records identified by the Veteran during the course of the remand, to include private toxicology records. All records obtained should be associated with the claims file. 4. Associate the Veteran's service personnel file with the claims folder. 5. The AMC/RO should contact the Veteran and ask him to provide information regarding the dates and circumstances under which he was exposed to Agent Orange at Fort McClellan. 6. After completion of the above, furnish the Veteran's detailed description of exposure to Agent Orange at Johnston Island between May 1994 to August 1995, including about August or September 1994 during a clean-up and security detail following the evacuation of the Island after Hurricane John, and any other exposure for which he provides approximate dates, location and nature of the alleged exposure, to Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE, and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as alleged. 7. If Compensation Service does not confirm that herbicides were used as alleged, and the Veteran has provided sufficient information to permit a search by the United States Joint Services Records Research Center (JSRRC) guidelines, the AMC/RO should send a request to the JSRRC for verification of exposure to herbicides. If sufficient information cannot be obtained from the Veteran to meet the JSRRC guidelines, the AMC/RO is to refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. 8. The AMC/RO should conduct the appropriate development and contact the appropriate sources and request documentation regarding the Veteran's asserted exposure to asbestos and radiation (including requesting the Occupational Exposure to Ionizing Radiation (DD Form 1141, if maintained) during service. 9. As exposure to nerve and Mustard Gas has been shown by the record (see July 1, 1994 STR) arrange for the Veteran to undergo an appropriate VA examination(s) to determine whether type II diabetes mellitus and associated complications, to include peripheral neuropathy of the upper and lower extremities, erectile dysfunction and hypertension, found to be present are associated with such exposure. The claims folder should be made available to and reviewed by the examiner, and the report should reflect that such review was accomplished. All indicated studies should be performed, and all findings should be reported in detail. The examiner should opine as to (1) whether it is at least as likely as not (50 percent or greater probability) that any type II diabetes mellitus, peripheral neuropathy of the upper and lower extremities, erectile dysfunction and hypertension, found to be present are due to nerve and/or Mustard Gas exposure, or if applicable, (2) whether peripheral neuropathy of the upper and lower extremities, erectile dysfunction and hypertension, found to be present, are (i) caused or (ii) aggravated (chronic worsening beyond the natural progress) by type II diabetes mellitus. If such aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the claimed disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the diabetes mellitus, type II. A complete rationale should accompany all opinions provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of the claimed disabilities or whether additional testing or information could be obtained that would lead to a conclusive opinion. 10. Then readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran 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). 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 Supp. 2009). _________________________________________________ TANYA A. SMITH Acting 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).