Citation Nr: 1314004 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 08-06 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for diabetes mellitus, to include as secondary to in-service exposure to herbicides and/or pesticides. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board initially remanded the Veteran's claim for further development in November 2010, and again remanded the claim in September 2012 after determining that the requested development had not been completed. As the record continues to reflect the need for additional development, 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 The Veteran contends that he developed his current diabetes mellitus, diagnosed in 1994, as the result of his in-service exposure to herbicides and/or pesticides when performing his pest control duties as an entomology specialist. He reports that during his service on the Kirtland Air Force Base from 1973 until his discharge in 1975, he regularly sprayed pesticides throughout the air base and sprayed herbicides on the air base perimeter. He reports that he regularly retrieved these pesticides and herbicides from a warehouse housing the then-banned chemical dichlorodiphenyltrichloroethane (DDT). The Veteran posits that his diabetes mellitus must stem from his in-service exposure to these herbicides and/or pesticides, as he is not overweight and has no family history of, nor family members diagnosed with, diabetes mellitus. VA has made efforts to determine whether the Veteran's in-service herbicide exposure included exposure to Agent Orange, thereby entitling him to service connection under the provisions of 38 C.F.R. § 3.309. However, queries submitted to the Joint Services Records Research Center, Armed Forces Pest Management Board, and Air Force Civil Engineer Support Agency failed to reveal any information regarding the types of herbicides or pesticides used on the Kirtland Air Force Base from 1973 to 1975. However, as it feasible that the Kirtland Air Force Base may be in possession of records reflecting the types of herbicides and pesticides used and stored at their facility during this time frame, a query must be submitted to this facility, as well. Additionally, the Veteran has submitted a medical opinion authored in June 2012 by his long-term treating private family practitioner. The physician states that, based on the Veteran's history serving in the Vietnam War from 1971 to 1975, and his regular use of herbicide and pesticides during this time, his exposure to these chemicals "may have contributed more likely than not to his diabetes mellitus..." As the physician inaccurately states that the Veteran participated in the Vietnam War, it is unclear as to whether her opinion is predicated on her belief that the Veteran was exposed to Agent Orange during service, as this form of herbicide is known to have been used in the Republic of Vietnam. Moreover, the physician provides no supporting rationale for this opinion and uses equivocal language. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). Nevertheless, the private physician's opinion is sufficient to trigger VA's duty to obtain a sufficient medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or service-connected disability). Accordingly, the case is REMANDED for the following action: 1. Contact the Kirtland Air Force Base and request the names of the pesticides and herbicides used and stored at the air base from 1973 to 1975. 2. Then, schedule the Veteran for a VA diabetes mellitus examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's currently-diagnosed diabetes mellitus (1) had its onset in service or (2) is related to the Veteran's exposure to pesticides and herbicides during service. The Veteran reports using the herbicide Surflan during service and frequenting a warehouse in which DDT was stored. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).