Citation Nr: 1305883 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 05-28 392A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for Type II Diabetes Mellitus, claimed to be the result of exposure to toxic chemicals. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to March 1971. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, denied the Veteran's claim of entitlement to service connection for Type II, i.e., adult-onset Diabetes Mellitus (DM II). In August 2008, the Veteran testified at a hearing at the RO before a Veterans Law Judge (VLJ) of the Board in support for this claim for DM II, but also concerning another claim that also was being appealed regarding a petition to reopen a previously denied claim of entitlement to service connection for bilateral keratoconus. This type of hearing is often and more commonly referred to as a Travel Board hearing. The Board subsequently issued a decision in November 2009 determining there was new and material evidence to reopen the claim of entitlement to service connection for bilateral keratoconus. But the Board then proceeded to deny this claim on its underlying merits, so it is no longer at issue. The Board instead remanded this remaining claim for service connection for DM II for further development and consideration, including obtaining the ship logs for the USS Mitscher from when the Veteran was stationed aboard that vessel, and then having him undergo a VA compensation examination for a medical nexus opinion concerning the etiology of his DM II, particularly in terms of the likelihood it is related or attributable to his military service and especially to his possible exposure to toxic chemicals while in service. The Board again remanded this claim for service connection for DM II in June 2012, this time because there had not been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand orders, and the Board itself commits error as a matter of law in failing to ensure compliance). Specifically, the Appeals Management Center (AMC), which had done the remand development for the RO, had impermissibly concluded in a formal finding memorandum that it was impossible to verify whether the Veteran was exposed to toxic chemicals at St. Juliens Creek Annex during the time he served aboard the USS Mitscher. The Board disagreed with this finding, however, based on evidence in the file, including the ships logs obtained concerning the USS Mitscher showing it had operated in the waters near the Annex, including in and around the U. S. Naval Station in Norfolk, Virginia, and the Naval Weapons Station in Yorktown, Virginia, and because of additional information provided in an Environmental Protection Agency (EPA) report the Veteran had submitted personally showing the Norfolk Naval Station is less than 1 mile from St. Juliens Creek Annex, and that that facility was an annex to the Yorktown Weapons Naval Station during the 1970s when he served. Considering the proximity of that facility to the locations where it is shown the USS Mitscher docked, as well as its purpose as an "annex" to the Weapons Station, the Board believed it entirely credible that the Veteran would have been sent to St. Juliens Creek Annex to perform duties while his ship (the USS Mitscher) was docked in the surrounding area. Moreover, considering how close these facilities are, he could have even traveled there by motor vehicle while the ship was docked elsewhere. Therefore, concluded the Board, with these factors in mind, it could not be said that his reported history of working at the St. Juliens Creek Annex was incredible, so consequently must be accepted as true. And as for his statements regarding having helped load ammunitions and toxic substances from St. Julians Creek Annex onto the USS Mitscher, the Board found these statements both competent and credible, so probative, as well as consistent with the types of duties he would have been assigned as a seaman. He alleges that barrels were punctured by a forklift thereby releasing some type of liquid that he had to mop up. And although it was impossible to know exactly what chemicals he resultantly was exposed to, he nonetheless had submitted objective evidence showing the Annex stored many types of toxic materials and chemicals. Accordingly, his exposure to toxic chemicals was conceded. The Board's prior November 2009 remand also as mentioned had directed the RO/AMC to provide the Veteran a VA compensation examination for a medical nexus opinion concerning the likelihood his DM II was causally or etiologically related to his conceded exposure to toxic chemicals in service. But although an examination consequently had been provided in January 2011, in the report of that evaluation the examiner only had determined the Veteran's DM II was not caused by exposure to Agent Orange. That report, then, was inadequate because the examiner did not provide the opinion requested as to the likelihood the Veteran's DM II instead was due to exposure to other toxic chemicals and materials stored stateside at the St. Juliens Creek Annex in Virginia. Thus, the Board was obligated to return that examination report as inadequate for rating purposes and to ensure the necessary opinion was obtained when considering the correct basis of the claim. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Regrettably, there still has not been compliance, even what could be accepted as substantial compliance, with the Board's initial remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). So the Board has no discretionary authority but to again remand this claim. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In March 2012, the Board sent the Veteran a letter informing him that the VLJ who had presided over the August 2008 hearing was no longer employed at the Board, since having retired. The Veteran therefore was offered the opportunity to have another hearing before a different VLJ that would ultimately decide his appeal. See 38 U.S.C.A. § 7107(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.707, 20.717 (2012). The letter indicated he should respond within 30 days of the date of the letter and that, if he did not, the Board would assume he did not want another hearing and would proceed accordingly with his claim. He did not however respond within the next 30 days, as requested, so the Board is proceeding with its consideration of his appeal. REMAND Quite unfortunately, the Board must remand this claim yet again. As already alluded to, the Board last remanded this claim in June 2012 for a more cogent VA medical opinion. The examiner was asked to opine regarding whether the Veteran's DM II was due to his military service, including especially to exposure to toxic chemicals or materials stored stateside at or near the St. Juliens Creek Annex in the Tidewater, Virginia, area. The examiner was instructed to take into account the EPA report the Veteran had submitted concerning the materials and chemicals that were stored at St. Juliens Creek Annex during the time he served aboard the USS Mitscher that apparently navigated at or very near that site. The examiner was to assume the Veteran's report of having to mop up toxic substances spilled from a barrel punctured by a forklift was true, so that this incident had occurred as alleged. The VA examiner that in June 2012 responded to this medical opinion request concluded the Veteran's DM II was not due to chemical exposure at St. Juliens Creek Annex because there was "no evidence base literature shows that diabetes 2 caused by exposure to ammunition depot or hazardous substances to both St. Juliens Creek and the Southern Branch of the Elizabeth River from wet or dry land." The EPA report the Veteran submitted in support of his claim, however, contrarily confirms the presence of multiple hazardous chemicals at St. Juliens Creek Annex, including polychlorinated biphenyls (PCBs) and pesticides. This is not to say that his DM II necessarily is a result or consequence, just that it is incorrect to assume that toxic chemicals were not stored or maintained there. Moreover, a cursory review of the recent scholarly literature nevertheless reveals that many hazardous substances, including PCBs and certain types of pesticides, have been associated with a markedly increased risk of developing DM II. Whether serving as endocrine disruptors or otherwise, these and other chemicals are known to be associated with the later development of this disease. Thus, the examiner's opinion that there is "no evidence base literature shows that diabetes 2 caused by exposure to ammunition depot or hazardous substances to both St. Juliens Creek and the Southern Branch of the Elizabeth River from wet or dry land" is at best incomplete. As well, the examiner did not opine regarding whether the Veteran's DM II was otherwise related to his service. The remand instructions regarding the examination were not followed as directed (the examiner did not opine regarding whether the Veteran's DM II was otherwise related to his service, and the examiner's rationale for the opinion that was provided is either incomplete or unsupported, thereby rendering the opinion inadequate). Thus, a remand for corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial compliance with the terms of a Board remand is required); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate); Prejean v. West, 13 Vet. App. 444, 448-9 (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.) The VA medical opinions obtained thus far are those of a certified physician's assistant (PA-C). PA-Cs, under ordinary circumstances, are more than capable of conducting VA examinations and providing VA medical opinions. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996) (upholding VA nurses' statements regarding medical nexus as well-grounded medical evidence). In Cox, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) indicated the Board may assume the competency of any VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See also Williams v. Brown, 4 Vet. App. 270, 273 (finding opinions of a VA registered nurse therapist to be competent medical evidence). The higher U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has agreed, indicating that, where an appellant does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish the examiner's competency. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Here, however, because the question at issue involves a matter of particular medical complexity, the Board believes an endocrinologist should answer the questions presented in this case since more suited. An opinion may be reduced in probative value even when it comes from someone with medical training, if the medical issue requires special knowledge or expertise. See Black v. Brown, 10 Vet. App. 279 (1997). Also, to ensure the record is complete, VA clinical records dated from October 4, 2006, to the present must be obtained and associated with the claims file for consideration. See 38 C.F.R. § 3.159(c)(2) (2012); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the claim is again REMANDED for the following additional development and consideration: 1. Obtain and associate with the claims file all VA clinical records dated from October 4, 2006 to the present. Since these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). So make as many attempts to obtain these records (assuming they exist) as are necessary according to this VA regulation. Also appropriately notify the Veteran if unable to obtain these records after the required attempts. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, have the Veteran undergo another VA compensation examination, this time preferably by an endocrinologist. Have this examiner review the claims file, including a complete copy of this remand and the Board's two prior remands, also the EPA report the Veteran submitted in support of his claim regarding harmful chemicals stored or maintained at the St. Juliens Creek Annex. This examiner is then asked to comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's Type II Diabetes Mellitus is related or attributable to his military service from January 1970 to March 1971, but especially to exposure to potentially harmful materials or chemicals (PCBs, pesticides, etc.) stored or maintained at St. Juliens Creek Annex, if accepting as true his assertion that he was sent to this facility and had to mop up a toxic substance that had been spilled from a barrel punctured by a forklift. That said, the examiner's opinion should broadly encompass any toxic substance to which the Veteran may have been exposed to during his service, i.e., should not just concern Agent Orange that a prior VA examiner mistakenly limited his consideration and discussion to. The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. It is imperative the examiner discuss the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting his/her conclusions. If this requested medical opinion cannot be provided without resorting to mere speculation, the examiner should discuss the reason(s) why a response is not possible or feasible. So merely saying he or she cannot respond will not suffice. If this VA examiner determines the Veteran's Type II Diabetes Mellitus is not very likely or as likely as not (so instead unlikely) related to his exposure to chemicals at St. Juliens Creek Annex, then this examiner must also comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's Type II Diabetes Mellitus is otherwise related to a disease, injury or event during his military service. 3. Ensure the examination report contains responses to these determinative issues of causation. If not, take corrective action to avoid yet another remand. 38 C.F.R. § 4.2. 4. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another Supplemental Statement of the Case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 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). _________________________________________________ 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) (2012).