Citation Nr: 1237219 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 06-22 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides or other chemicals. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January 1974 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied, in pertinent part, the Veteran's claim of service connection for diabetes mellitus, to include as due to exposure to herbicides or other chemicals. A videoconference Board hearing was held at the RO in May 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In October 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As the Board noted in its October 2010 remand, the issue of entitlement to service connection for a dental disability, for purposes of outpatient treatment only, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board referred this claim back to the RO/AMC in its October 2010 remand. The AMC subsequently referred this claim back to the RO in April 2012. To date, it appears that the RO has not taken any action on this claim. Therefore, the Board does not have jurisdiction over this claim and it is referred to the RO again for appropriate action. Unfortunately, as is explained below in greater detail, the appeal is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claim of service connection for diabetes mellitus, to include as due to exposure to herbicides or other chemicals, can be adjudicated. The Veteran contends that he incurred diabetes mellitus during active service. He alternatively contends that his in-service exposure to herbicides or other chemicals during active service caused or contributed to his current diabetes mellitus. The competent evidence of records demonstrates that the Veteran has been diagnosed as having diabetes mellitus. There is no indication in the Veteran's available service treatment records or service personnel records that he was exposed to herbicides or other chemicals at any time during active service, however. The Veteran testified before the Board in May 2010 that an unidentified airplane had sprayed his U.S. Navy ship with an unknown chemical, which he presumed was either Agent Orange or chlorophenothane (DDT), while it was stationed in the waters offshore of Cartagena, Columbia, during his active service. See Board hearing transcript dated May 27, 2010, at pp. 5, 24, 29-30. To date, however, the Veteran has not been scheduled for VA examination to determine the nature and etiology of his diabetes mellitus. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his diabetes mellitus. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. It appears that the Veteran's most recent VA treatment records associated with the claims file are dated only through November 2010. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for diabetes mellitus since his separation from active service. Advise the Veteran not to resubmit any records already provided to VA. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate examination to determine the nature and etiology of his diabetes mellitus. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that diabetes mellitus, if diagnosed, is related to active service or any incident of service. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that he incurred diabetes mellitus during active service. The examiner also is advised that the Veteran contends that he was exposed to herbicides (Agent Orange) or other chemicals during active service which caused or contributed to his diabetes mellitus. The examiner finally is advised that there is no official record of any in-service exposure to herbicides or other chemicals at any time during the Veteran's active service. Thus, any statements made by the Veteran concerning his alleged in-service herbicide or chemical exposure may be presumed to be inherently incredible. 3. The Veteran should be given adequate notice of the requested examination, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2011). _________________________________________________ MARJORIE A. AUER 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).