Citation Nr: 1610001 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 11-23 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for diabetes mellitus type II, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: Karen Y. Vicks, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION This appeal was processed using the Veteran's Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the claim. The Veteran served on active duty from May 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This matter was previously before the Board in March 2014 and August 2015, at which time it was remanded for additional development. It is now returned to the Board. In January 2013, the Veteran presented testimony before a Veterans Law Judge via videoconference. In June 2015, he was notified that the Veterans Law Judge that conducted his hearing was no longer employed at the Board. He was thereafter afforded the opportunity for a new hearing, which he elected in July 2015. In the August 2015 remand, the Board remanded the Veteran's claim so he could be scheduled for his requested videoconference hearing. The Veteran testified at a videoconference hearing before the undersigned in December 2015, and a copy of the hearing transcript is of record. For the reasons set forth below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Upon review, the Board has determined that additional evidentiary development is necessary. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the issue concerning service connection for diabetes mellitus type II (as a result of exposure to herbicide agents), so that the Veteran is afforded every possible consideration. The record reflects that the Veteran served as a member of the Air Force, and his DD 214 reflects that his military occupational specialty (MOS) was that of Fuel Specialist. During his hearing, the Veteran testified that his exposure to jet fuel and various types of chemicals in the jet fuel led to the development of his current diabetes mellitus. He specifically recalled an incident in March 1967 wherein he fell from the back of a tanker and was "doused" with fuel. See December 2015 Hearing Transcript, p. 3. The Veteran also testified that he worked with, and around, C-123 planes which put him at risk of herbicide exposure, and contributed to the subsequent development of his current diabetes mellitus, type II. See Hearing Transcript, p. 7. The service treatment records reflect that the clinical evaluation of the Veteran's cardiovascular, endocrine, and genitourinary systems were shown to be normal at the May 1966 enlistment examination. The Veteran was not shown to have diabetes at the time of this evaluation, and he only reported a history of mumps in the medical history report. The Veteran was seen at sick call in March 1967 after splashing diesel fuel into his right eye and the results of this evaluation revealed slight conjunctival irritation. The Veteran was seen at sick call once again several days later, during which time, he complained of blurry vision in the right eye of two weeks duration. It was noted that he had a history of wearing glasses four years prior, but had not worn them since. Upon physical examination, the Veteran's visual acuity for near objects was 20/20 in both eyes, and his visual acuity for distant objects was 20/20 in the left eye and 20/200 in the right eye. At the October 1968 separation examination, the clinical evaluation of the Veteran's genitourinary, endocrine, and vascular systems was shown to be normal. The Veteran's post-service treatment records reflect a diagnosis of diabetes mellitus type II as early as March 2009. See March 2009 progress notes issued by his physician, V.P., M.D., at Primary Care of Delaware. Progress reports issued through Southside Family Practice, and dated in May 2012, reflect ongoing treatment and care for the Veteran's diabetic condition, to include his increasing hyperglycemic episodes. In an August 2012 report, one of the Veteran's physicians, B.H., M.D., noted that the Veteran had a medical history of diabetes mellitus, and that the Veteran had been seen twice in May 2012 for treatment of his diabetes. Dr. H. diagnosed the Veteran with having diabetes mellitus, hypertension, and high cholesterol. The Veteran was afforded a VA examination in February 2015, at which time, he was diagnosed with having diabetes mellitus type II. As noted above, during his hearing, the Veteran testified that he worked with, and around, a number of different aircrafts, to include C-123 aircrafts, while stationed at Langley Air Force Base. Effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (such as "Agent Orange") during the Vietnam era. Specifically, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval or air service. 38 C.F.R. § 3.307(a)(6)(v). Although the Veteran's available service personnel records reflect that he worked as a fuel specialist at Shemya Airforce base in Alaska and at the Langley Airforce base in Virginia from September 1966 through October 1967, these records are absent information regarding the type of aircraft the Veteran worked with, and whether the he had repeated contact with C-123 aircraft. Requesting a complete copy of the Veteran's military records, to include any outstanding service treatment and personnel records not already associated with the claims file, may further illuminate what type of aircraft the Veteran worked on, and may also corroborate the Veteran's assertions that the planes he worked with carried herbicides during their missions. Accordingly, as the Veteran's service personnel records may provide additional information regarding the Veteran's actual location and circumstances of his period of service, a remand is necessary in order to obtain any and all outstanding service treatment and personnel records. Secondly, after reviewing the claims file, the Board notes that the new January 2015 IOM Report with respect to C-123 aircraft and reservists' herbicide exposure is not in the claims file. This document is potentially relevant to the Veteran's claim and contentions on appeal and therefore must be associated with the claims file on remand. See Cohen v. Brown, 10 Vet. App. 128 (1997) (development provisions contained in the M21-1MR are substantive rules that are equivalent of VA regulations); Cf. Patton v. West, 12 Vet. App. 272 (1999), (PTSD development guidelines in M21-1MR are considered substantive rules) vs. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002) and VAOPGCPREC 4-2000 (asbestos-related claims guidelines are not substantive rules as there is no presumption of exposure based on shipboard or any other type of service). Thirdly, the Veteran testified during his hearing that he was currently receiving long-term disability from his employer, in part as a result of his diabetes mellitus. See Hearing Transcript, p. 5. Because the record is unclear as to what type of "long-term disability" the Veteran is in receipt of, additional development is indicated in this regard. Lastly, the Board notes that the Veteran submitted another treatment report and opinion issued by Dr. H., and dated in December 2015. However, this report was not considered in the most recent March 2015 supplemental statement of the case (SSOC) which did include a review of treatment records issued by Dr. H. dated through November 2014. No waiver of initial RO consideration is of record. See 38 C.F.R. §§ 19.31, 20.1304 (2015). In this context, the amended provisions of 38 U.S.C.A. § 7105(e) that permit initial review by the Board do not apply in this case, because the Veteran's Substantive Appeal was received by VA in August 2011. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, PL 112-154, 126 Stat. 1165, section 501 (Aug. 6, 2012) (amends 38 U.S.C.A. § 7105 by adding new paragraph (e), which provides an automatic waiver of initial RO review of evidence submitted with or after a Substantive Appeal received on or after February 2, 2013). Without a written waiver of initial RO consideration of the additional medical evidence, the Veteran's claims must be returned to the agency of original jurisdiction (AOJ) for readjudication. See Disabled American Veterans v. Principi, 327 F. 3d 1339 (Fed. Cir. 2003) [absent a waiver, the Board may not adjudicate a claim based on evidence which has not been previously considered by the RO]. On remand, any ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b) ; see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he provide any information or evidence in his possession, including lay assertions from former servicemen with whom he served, regarding his (the Veteran's) involvement with C-123 aircraft, and whether this C-123 aircraft was serviced or "parked" at the locations in which the Veteran was stationed during the Vietnam era. 2. Attempt to obtain through official sources any additional service treatment and personnel records associated with the Veteran's period of service that are not currently associated with the claims file. If any further records cannot be obtained and further attempts would be futile, such should be noted in the claims file with a memorandum of unavailability and the Veteran should be notified thereof. 3. The AOJ should associate with the claims file the January 2015 IOM Report with respect to C-123 aircraft and reservists' herbicide exposure. The Veteran and his attorney should be so notified of the relevant documents associated with the claims file. 4. Ask the Veteran to provide any and all necessary information regarding the long-term disability benefits he indicated he was receiving. With appropriate authorization from the Veteran, contact the Veteran's employer, and obtain and associate with the claims file all pertinent identified long-term disability benefits decisions and the records on which any such decision was based. If, after making reasonable efforts to obtain these records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. Obtain any relevant VA treatment records from the Wilmington VA Medical Center, or any other VA medical facility that may have treated the Veteran, since May 2009 and associate those documents with the claims file. 6. Ask the Veteran to identify any private treatment that he may have had for his diabetes mellitus, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 7. Thereafter, the AOJ should take all reasonable steps to determine whether C-123 aircraft were serviced or maintained at any location in which the Veteran was stationed during his service during the Vietnam era. All steps taken to determine this information must be documented in the claims file, and if corroboration is not possible, then this should be documented in the claims file as well. 8. After the above development has been completed, the AOJ should review the file and ensure that all development sought in this REMAND is completed. The AOJ should arrange for any further development indicated by the results of the development requested above (including an examination if deemed to be warranted by the AOJ), and re-adjudicate the claim. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case (to include consideration of the private treatment report and opinion issued by Dr. H., dated in December 2015), and afforded adequate time to respond before returning the record to the Board for further appellate review. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).