Citation Nr: 1333330 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-26 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for chronic pneumonia with scar tissue on the lungs. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2007 and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The January 2007 rating decision denied service connection for bilateral hearing loss, tinnitus, a lung condition secondary to asbestos exposure, and diabetes mellitus, to include as due to herbicide exposure. The Veteran filed a timely notice of disagreement with respect to all four issues and in June 2008 a statement of the case was issued. However, the Veteran limited his August 2008 VA Form 9 to the issues of bilateral hearing loss, tinnitus, and diabetes mellitus. He specifically indicated that he was not appealing the lung condition due to asbestos exposure, as he was now claiming it as a direct service-related injury. In a December 2011 decision, the Board denied service connection for hearing loss, tinnitus, and diabetes mellitus, to include as due to exposure to herbicides. The Veteran appealed the denial of service connection for diabetes mellitus to the United States Court of Appeals for the Veterans Claims (Court). In an April 2013 Order, the Court granted a Joint Motion for Remand, which served to vacate the portion of the December 2011 Board decision which denied service connection for diabetes mellitus, and remanded that issue to the Board for action consistent with the Joint Motion for Remand. It was specifically noted that the Board's denials of service connection for bilateral hearing loss and tinnitus were not to be disturbed. In August 2008 the Veteran filed a claim for service connection for chronic pneumonia with scar tissue on the lungs. The December 2008 rating decision denied service connection for chronic pneumonia with scar tissue on the lungs. The Veteran perfected an appeal of this decision to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Joint Motion for Remand states that the Board, in its December 2011 decision, did not provide an adequate statement of reasons and bases for its determination that the Veteran was not entitled to a VA examination pursuant to his claim for service connection for diabetes mellitus. The Joint Motion for remand found the Board's statement of reasons and bases to be internally inconsistent insofar as the Board found insufficient evidence to indicate that any event or injury occurred in service for purposes of determining whether there was a duty to provide a VA examination, while simultaneously finding that the Veteran was competent to state that he was exposed to herbicides in service. Finally, the Joint motion for Remand indicates that the Board did not assess the credibility of the Veteran's statements that he was exposed to herbicides in service, after finding that such statements were competent evidence. In the December 2011 decision, the Board determined that although there was competent evidence of a current diagnosis of diabetes, there was not sufficient evidence to indicate that any event or injury occurred in service, to include diabetes. The Board further noted that the Veteran did not serve in Vietnam, overseas, or in any area which is known to have had herbicide usage, and that the Veteran did not allege any event or injury occurring during service. Finally, the Board determined that there was no indication of any link between the current diabetes and service, apart from the Veteran's own conclusory lay statements. The Board, therefore, concluded that there was no duty to provide a VA examination regarding the claim of entitlement to service connection for diabetes mellitus. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran asserts that as a jet mechanic during service, he was exposed to herbicides and other chemical such as lubricating oils, jet fuel, lead paint, lacquers, naphthalene, TCE cleaning fluids, battery acids, cleaning solvents, pesticides, and hydraulic fluids. He claims that this exposure, to include exposure to herbicide-saturated aircraft that had come from Vietnam (he states he was required to wash before working on the aircraft), is what caused his diabetes mellitus. He indicated that because of the heat on the flight line (which he states was 115 degrees), he would remove his shirt, t-shirt, and boots to wash these herbicide-saturated aircraft. He remembers stepping in puddles of the herbicides mixed with water. The Veteran's service records show that he served as a jet mechanic at George Air Force Base in California from December 19, 1966 until July 24, 1970. Although the Veteran did not serve in Vietnam or Korea, and the May 2006 Personnel Information Exchange System (PIES) response to the RO's request notes that there was no evidence of herbicide exposure during service, 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 and Demilitarized zone of Korea. See M21-1MR, Part IV.ii.2.C.10 (o). 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 the Department of Defense'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 Army 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 development action as specified in the VA manual, M21-1MR, Part IV.ii.2.C.10 (o) has been accomplished. As such, a remand is required in order to undertake such development action. Furthermore, as the Veteran is competent to report exposure to chemicals/fuel/solvents other than Agent Orange during service, the Veteran should be afforded a VA examination to determine the nature and etiology of his diabetes mellitus. Lastly, in his substantive appeal (VA Form 9) dated in January 2010, the Veteran requested a Board hearing with respect to his claim of entitlement to service connection for chronic pneumonia with scar tissue on the lungs. No hearing has been scheduled, and this issue is remanded in order to schedule the requested hearing. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to provide specific information regarding the dates and circumstances under which he was exposed to Agent Orange and/or other reported chemicals/toxins/solvents at George Air Force Base in California. 2. After completion of the above, furnish the Veteran's detailed description of exposure to Agent Orange at George Air Force Base in California from December 19, 1966 to July 24, 1970, 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. 3. 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 JSRRC guidelines, 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, refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. 4. If exposure to Agent Orange is not verified as above, schedule the Veteran for a VA examination in order to determine the nature and etiology of his diabetes mellitus. The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the new examination. Any tests deemed medically advisable should be accomplished. For the purpose of this opinion, the examiner should accept the Veteran's statements regarding exposure to lubricating oils, jet fuel, lead paint, lacquers, naphthalene, TCE cleaning fluids, battery acids, cleaning solvents, pesticides, and hydraulic fluids as fact. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's diabetes mellitus had its onset during service or is causally or etiologically related to service. The examiner should specifically discuss the Veteran's exposure to lubricating oils, jet fuel, lead paint, lacquers, naphthalene, TCE cleaning fluids, battery acids, cleaning solvents, pesticides, and hydraulic fluids during service. A complete rationale should be given for any opinion provided. If the examiner again notes that an opinion may not be provided without resorting to speculation, the examiner should provide a rationale for the inability to relate the diagnosis to service and should specifically indicate if any further information or testing would assist the examiner in making the determination. 5. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 6. The RO/AMC should schedule the Veteran for a videoconference hearing before a Veterans Law Judge concerning his claim of entitlement to service connection for chronic pneumonia with scar tissue on the lungs. 7. Thereafter, readjudicate the issue of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal 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 Supp. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2012).