Citation Nr: 1326119 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 12-09 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to pesticide. REPRESENTATION The Veteran is represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from December 1948 to June 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office located in Nashville, Tennessee. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In July 2010, the Veteran submitted a claim of entitlement to service connection for diabetes mellitus, type II. He asserted that his current diabetes mellitus, type II, is due to inservice exposure to dichlorodiphenyltrichloroethane (DDT), while stationed at Ft. Benning, Georgia or possibly while stationed at Ft. Jackson, South Carolina. In a July 2013 informal hearing presentation, the Veteran's representative stated that Ft. Benning "historical records" show that pesticides (including DDT) were used on the barracks and bed linens. The representative further asserted that this practice was well-documented from the late 1940's to early 1970's. The Veteran did not submit or identify historical records demonstrating the use of pesticides at Ft. Benning or Ft. Jackson. Further, the RO did not attempt to obtain records demonstrating the use of pesticides at Ft. Benning or Ft. Jackson during the Veteran's active service. When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). As such, the Board finds that a remand is warranted in order for the RO to attempt to obtain evidence demonstrating the historical use of pesticides at Ft. Benning or Ft. Jackson prior to and during the Veteran's active duty. If, and only if, the RO confirms that pesticides were used at Ft. Benning or Ft. Jackson during the Veteran's active duty service, the Veteran should then be provided a VA examination in order to ascertain whether his current diabetes mellitus, type II, is due to his inservice pesticide exposure, to include consideration of the medical literature he submitted in support of his claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Additionally, the Veteran indicated that he received treatment since about 1958 from Dr. Paige Reichert and Dr. Andrew Dill. Dr. Reichert was located at Sumner Hospital, Gallatin, Tennessee, while Dr. Dill was at an unnamed medical facility, also located in Gallatin, Tennessee. After the RO sent a request for the Veteran's treatment records to Sumner Hospital and another to Dr. Dill, the RO called to follow-up on the requests in March 2011. On that occasion, the RO was informed that Dr. Reichert was no longer with Sumner Hospital; however, the RO was provided a facsimile number to a copying service where a request could be submitted and a response would be returned. The RO also was told that Dr. Dill used the same copying service. The RO then submitted a request for the Veteran's treatment records using the facsimile number and requested that a response be received within 10 days. A review of the Veteran's claim file did not demonstrate that a response was ever received and no additional treatment records were associated with the Veteran's claims file. As such, the Board finds that the RO should submit an additional request to the copying service for the Veteran's treatment records generated by Dr. Reichert and Dr. Dill in and after 1958. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the Veteran's service personnel records to determine when he was stationed at Ft. Benning and at Ft. Jackson. 2. The RO should attempt to obtain evidence concerning the historical use of pesticides, including DDT, at Ft. Benning and Ft. Jackson during the Veteran's active duty. Requests for this evidence should be submitted to Ft. Benning, Ft. Jackson, the U.S. Army, the National Personnel Records Center, or any other appropriate agency. All attempts to obtain this evidence must be documented in the claims file. 2. The RO should attempt to obtain the Veteran's treatment records from the copying service with respect to the treatment he received from Dr. Reichert and Dr. Dill, dated in and after 1958. All attempts to obtain this evidence must be documented in the claims file. 3. If, and only if, the RO confirms the use of pesticides/DDT at Ft. Benning or Ft. Jackson during the Veteran's active military service, then the RO should schedule the Veteran for a VA examination. The claims file must be made available to the examiner in conjunction with the examination. All indicated tests and studies must be accomplished. The examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's diabetes mellitus, type II, is related to his military service, to include as due to inservice exposure to pesticide, specifically, DDT. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data. The examiner should also discuss the medical literature submitted by the Veteran. In responding to the above question, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. A complete rationale must be provided for any opinion offered. 4. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claims on appeal, to include consideration of all relevant evidence of record. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).