Citation Nr: 1314290 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-10 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as a result of in-service exposure to herbicides. 2. Entitlement to service connection for a skin disorder, to include as a result of in-service exposure to herbicides. 3. Entitlement to service connection for a cardiovascular disorder, claimed as congestive heart failure and ischemic heart disease, to include as secondary to a service-connected disability. 4. Entitlement to service connection for retinopathy, to include as secondary to a service-connected disability. 5. Entitlement to service connection for a circulatory disorder of the lower extremities, to include as secondary to a service-connected disability. 6. Entitlement to service connection for neuropathy of the lower extremities, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. These matters come before the Board of Veterans' Appeals (BVA or Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a hearing conducted before the undersigned Veterans Law Judge in September 2012. A transcript of the hearing is of record. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). After a complete and thorough review of the claims folder, the Board finds that further evidentiary development of the Veteran's appeal is necessary prior to a final adjudication of his claims. Social Security Records - The Veteran indicated in a September 2006 statement that he was "100% disabled by the Social Security Administration." In this regard, the Board notes that VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that, where there has been a determination with regard to Social Security Administration (SSA) benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). Although it is unclear if the Veteran is actually receiving disability benefits, or for what disorder(s), the relevancy of these documents has not yet been ruled out. As such, these records must be obtained. VA Treatment Records-The Veteran testified at his September 2012 hearing that he has received treatment at the Chattanooga Community Based Outpatient Clinic (CBOC) and through the Tennessee Valley Healthcare System at both the Murfreesboro Campus and Nashville Campus. See Hearing Transcript (T.) at 19-20. The claims files reflects that the most recent treatment records from the Nashville VA Medical Center (VAMC) are dated in December 2009, although it also appears that records between June 2007 and May 2009 were not obtained. The Veteran's Virtual VA claims file does not contain VA treatment records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Here, the AMC/RO should obtain and associate with the claims file all outstanding VA records. Herbicide Exposure Verification-The Veteran contends that he was exposed to herbicides while stationed in Korea. He testified at his September 2012 hearing that he rode around in jeeps that had come from Vietnam and that he had sanded paint off trucks and jeeps that had come from Vietnam and repainted them. See T. at 4. He additionally testified that he had visited the DMZ on numerous occasions. See T. at 6. Personnel records reflect that the Veteran served in Korea between December 1972 and December 1973. VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o) directs that the Veteran be asked for the approximate dates, location, and nature of the alleged exposure. If a statement is received from the Veteran, this detailed statement of the Veteran's claimed herbicide exposure must be sent to the Compensation and Pension Service via e-mail and a review be requested of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. Moreover, if the Veteran does not supply specific information regarding his alleged exposure, the case should be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. A review of the record reflects that all of the above listed procedures were not all completed. The Court has consistently held that evidentiary development procedures provided in VA's Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). The Board concludes that this matter must be remanded for compliance with the procedures set forth in the VA Adjudication Manual. VA Examinations-The Veteran asserts that he has diabetes mellitus and a skin disorder due to in-service exposure to herbicides. He also alleges that he has a cardiovascular disorder, retinopathy, a circulatory disorder of the lower extremities and neuropathy of the lower extremities due to service and/or as secondary to a service-connected disability. While on remand, the Board finds that VA examinations, to include etiological opinions, should be afforded to the Veteran. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims folder copies of any decision awarding SSA benefits to the Veteran, as well as the medical records used in support of any such determination. Any negative search result should be noted in the record. 2. Obtain and associate with the claims folder all VA clinical records pertaining to the Veteran from the Chattanooga CBOC and the Tennessee Valley Healthcare System Murfreesboro Campus-and all records from the Tennessee Valley Healthcare System Nashville Campus since June 2007. 3. The RO/AMC must comply with the provisions of VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.o and attempt to verify the Veteran's claimed herbicide exposure as follows: (a) Request that the Veteran provide any additional details regarding the approximate dates, location, and nature of the alleged exposure. (b) Furnish a detailed description of the Veteran's claimed exposure, while stationed in Korea to Compensation and Pension Service via e-mail and request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. (c) If a negative response is received from the Compensation and Pension Service, the RO/AMC should submit a request to JSRRC for verification of exposure to herbicides. (d) If the Veteran does not furnish a statement regarding his alleged exposure, refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. 4. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his diabetes mellitus, type II. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current diabetes mellitus, type II, had its onset during the Veteran's active duty or is otherwise causally related to such service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his skin disorder. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any skin disorder, had its onset during the Veteran's active duty or is otherwise causally related to such service. In answering this question, the examiner should opine as to whether any skin disorder that the Veteran may have is consistent with herbicide exposure. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. In addition, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his cardiovascular disorder. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner is asked to render an opinion on whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's cardiovascular disorder had its onset in his active duty or is otherwise related to such service. If not, the examiner is asked to opine as to whether any cardiovascular disorder that the Veteran may have was caused, or aggravated, by his diabetes mellitus, type II. [The term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.] If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the cardiovascular disorder (i.e., a baseline) before the onset of the aggravation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 7. Further, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his retinopathy. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner is asked to render an opinion on whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's retinopathy had its onset in his active duty or is otherwise related to such service. If not, the examiner is asked to opine as to whether any retinopathy that the Veteran may have was caused, or aggravated, by his diabetes mellitus, type II. [The term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.] If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the retinopathy (i.e., a baseline) before the onset of the aggravation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 8. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the circulatory disorder of his lower extremities and neuropathy of his lower extremities. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any circulatory disorder, and neuropathy, of the Veteran's lower extremities had its onset in his active duty or is otherwise related to such service. If not, the examiner is asked to opine as to whether any lower extremity circulatory disorder or lower extremity neuropathy that the Veteran may have was caused, or aggravated, by his diabetes mellitus, type II. [The term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.] If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the circulatory disorder, and neuropathy, (i.e., a baseline) before the onset of the aggravation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 9. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims (as are listed on the title page of this remand) should be readjudicated based on the entirety of the evidence. If any of the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO 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 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) (2012).