Citation Nr: 1330892 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 08-39 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a skin condition, to include basal cell carcinoma and as a result of herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, to include as a result of herbicide exposure. 3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1962 to November 1966. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2009, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO. In January 2012, he testified before the undersigned Veterans Law Judge at a Videoconference hearing. Transcripts of these proceedings are of record. These claims were previously before the Board in March 2012 when the Board remanded the Veteran's claim for service connection for a skin condition, to include basal cell carcinoma, for additional development. The Board also denied entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, and entitlement to service connection for hypertension, to include as secondary diabetes mellitus. The Veteran appealed that decision to United States Court of Appeals for Veterans Claims (Court). In September 2012, the parties filed a Joint Motion for Partial Remand (joint motion). By Order dated October 5, 2012, the Court granted the joint motion and the Board's March 2012 decision with respect to the denial of the claims for service connection for diabetes mellitus and hypertension was vacated and remanded for action consistent with the terms of the joint motion. In June 2013, the Board remanded the issues of entitlement to service connection for diabetes mellitus and hypertension for additional development. All three issues are now again before Board for further appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is again required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. The Veteran essentially contends that service connection is warranted for diabetes mellitus due to his alleged exposure to herbicides while stationed at Takhli Royal Thai Air Force Base in Thailand where he reportedly transferred hazardous chemicals (assumed due to warning markings) from 55 gallon drums into a tank from which they were to be dispersed without the use of any protective clothing or device. He further asserts that in the performance of his military occupational specialty as a jet engine mechanic, he was assigned to an aircraft which reportedly flew sortie missions over the gulf, departing from and returning to Takhli Royal Thai Air Force Base. On approximately 10 occasions, however, the Veteran and his assigned aircraft landed at a military base in Da Nang, Vietnam solely for replenishment and maintenance purposes which required the Veteran to have boots on the ground for at least an hour or an hour and a half while replenishing the aircraft and performing and supervising any maintenance performed. He testified that he believes that he was exposed to herbicides at or near the same time that he was treated for a body rash in Thailand, which is shown in his service treatment records to have occurred from June to August 1966. During the DRO hearing, he testified that he also flew to Guam, Laos, Cambodia, and Germany and his representative at that time suggested that herbicides have been found in each of those locales with the exception of Germany. The Veteran also claims that he incurred a skin condition, to include basal cell carcinoma, as a result of herbicide exposure in service. He testified that during his TDY service in Thailand in 1966, his duties included opening drums of what he believed to contain Agent Orange and pouring it into a tanker truck, that the substance splashed on his skin and clothes, and that he was hospitalized for a head-to-toe rash as a result. See Board Hearing Transcript at 8, 15. He further testified that, post-service, he first began to notice symptoms of a skin problem about 20 years ago (i.e., around 1992) when he noticed a lump or cyst between his thumb and first finger (on his right hand, see statement, September 2006), and that he has continued to have skin problems requiring treatment since that time. See Board Hearing Transcript at 16-17; see also DRO Hearing Transcript at 10-13. At the same time, however, the Veteran reported in a March 2007 statement that the cyst on his right hand was removed back in 1978, and that although records of such treatment were no longer available, there is a scar on his right hand where the cyst was removed. See also DRO hearing Transcript at 13. Recent private treatment records reflect that the Veteran has been treated for basal cell carcinoma on his right ear (December 2011), left forehead (December 2011), left forearm (May 2011), nose (January 2011), right shoulder (October 2010), right cheek (March 2008), and right thigh (March 2008), as well as for a dysplastic melanocytic nevus with mild atypia on his right flank (February 2008), a ganglion versus cyst on his right middle finger (September 2009), a dysplastic nevus versus atypical lentigo on his mid-back (August 2006), and a cyst on his upper back (August 2006). June and July 1966 service treatment records reflect that, during the Veteran's TDY in Thailand, he was treated a handful of times for a rash in his groin/crotch/scrotal/"between legs" area diagnosed as miliaria and jock itch (and that a VDRL test was nonreactive). In the March 2012 remand, the Board observed that the Veteran had not been provided with a VA examination relating to this claim. The Veteran had related his current skin condition to the rash that he was treated for during service. Thus, the Board found that an examination was necessary to determine the nature and etiology of the Veteran's claimed skin condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In a March 2012 letter, the AMC notified the Veteran that he was to be scheduled for a VA examination for his claimed skin condition. The AMC placed a request for such examination that same day. An undated handwritten note on the examination request states that the Veteran failed to report for the scheduled examination. In correspondence dated in June 2013, the Veteran indicated that he had received the June 2013 supplemental statement of the case (SSOC), which indicated that he had failed to report for a scheduled VA examination pertaining to his claimed skin condition. He stated that he never received notice of the scheduled examination. He had waited a long time to appear for such examination and had he known when it was scheduled to occur, he would not have failed to report. As the Veteran has shown good cause for his failure to appear for the scheduled VA skin examination, the claim must again be remanded so that he may be afforded a VA examination to determine the nature and etiology of his claimed skin condition. Also, the Veteran's claims for service connection for diabetes mellitus and hypertension were remanded by the Board in June 2013 for additional development related to verification of his alleged herbicide exposure during military service. In accordance with the June 2013 remand, in June 2013, the AMC (1) requested that the Veteran submit additional evidence in support of his claims, to specifically include information about his alleged herbicide exposure during service, and (2) contacted necessary records repositories and requested any documents showing exposure to herbicides, morning reports for the Veteran's unit dating from December 1, 1963 to February 1, 1964 that contain remarks regarding ground service at a military base in Da Nang, and flight records pertaining to the Veteran and his unit of assignment dating from December 1963 to November 1966. To date, it does not appear that any response has been received in connection to the June 2013 records requests. Development efforts must continue until a negative response is received in response to each records request. In any event, it appears that without completing any of the additional development tasks outlined in the June 2013 remand, in June 2013, the AMC issued a SSOC pertaining solely to the Veteran's claim for service connection to a skin condition. The case was apparently then recertified to the Board for further appellate consideration. In this regard, when the RO/AMC does not issue a supplemental statement of the case, the Board must remand the claim so that a statement of the case can be issued. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Moreover, where remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the claims for service connection for diabetes mellitus and hypertension must also be remanded so that the development previously requested may be completed. The Board also notes that in August 2013, the Veteran submitted authorization and consent to enable VA to obtain ongoing private treatment records from doctors WM, M.D., and FD, M.D. There is no indication that such records have been requested or obtained and associated with the claims file. As such records may be relevant to the claims on appeal, an attempt must be made to obtain them. Finally, it does not appear that the Veteran has responded to the AMC's June 2013 request for additional information regarding his alleged herbicide exposure during service. In light of the apparent confusion in processing the Veteran's claims as outlined above and the need to remand the claims for additional development, he should be given another opportunity to provide additional details to help VA verify his alleged herbicide exposure. In this regard, the Veteran is hereby notified that while VA has a statutory duty to assist him in developing evidence pertinent to a claim, he also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran again and ask that he provide the approximate dates, locations, and nature of any alleged exposure(s) to herbicides during service, to include any exposures in Guam, Laos, and Cambodia as alluded to during the May 2009 DRO hearing. All requests and responses received should be documented in the claims file. If a response is received from the Veteran, forward it to C&P Service and request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used in the locations as alleged. 2. Using VA Forms 21-4142 submitted by the Veteran in August 2013, request ongoing private treatment records from Dr. WM, M.D., dating since April 2013, and Dr. FD, M.D., dating since February 2013. All records requests and responses received must be associated with the claims file. If any records requested are not received, the Veteran and his representative must be notified of that fact and allowed a reasonable time for response in order to allow them to submit any such records for consideration. 3. Follow-up the June 2013 contact with the NPRC and any other appropriate records repository and re-request a review of morning reports and flight records pertaining to the Veteran while assigned to the 305th Organizational Maintenance Squadron of Bunker Hill Air Force Base (December 1963 to November 1966) to determine whether he had ground service at a military base in Da Nang, Vietnam at any time between May and August 1966 as alleged (Note: flights/sortie missions reportedly departed from and returned to Takhli Royal Thai Air Force Base in Thailand, however, his aircraft reportedly landed in Da Nang, Vietnam for only an hour or two in duration solely for replenishment purposes of the aircraft while flying sortie missions over the gulf) or in any other area where he may have been exposed to herbicides. 4. Contact the JSRRC for verification of the locations of the Veteran's units of assignments to determine whether he was stationed or on TDY in any area where he may have been exposed to herbicides, to include in Thailand, Vietnam, Guam, Laos, and Cambodia as alleged. 5. All attempts to obtain Federal records must be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO/AMC must notify the appellant and his representative and (a) identify the specific records that are unable to obtained; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) inform the appellant that he is ultimately responsible for providing the evidence. The appellant must then be given an opportunity to respond. 6. Then, review the claims file to make certain that the aforementioned development and remand instructions have been fully and properly executed and that all appropriate development has been completed in accordance with M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Any noncompliance found should be rectified with the appropriate development. 7. Once the development requested above is complete to the extent possible, schedule the Veteran for a VA examination with an appropriate examiner in order to determine the nature and etiology of his claimed skin condition, to include basal cell carcinoma. It is imperative that the Veteran be given appropriate notice of the scheduled examination and documentation of this should be place in the claims file. It is also imperative that the claims file be made available to the examiner in connection with the examination. The examiner should elicit a complete history of the claimed disability from the Veteran, conduct all necessary medical testing, and clearly report all clinical findings and test results in the examination report. After reviewing the claims file and examining the Veteran, the examiner should opine as to whether any skin conditions identified, to include basal cell carcinoma (see conditions discussed in this Board remand), are at least as likely as not (a 50% or higher degree of probability) had their clinical onset during the Veteran's service, or are otherwise related to such period of service. In doing so, the examiner should note that the Veteran has a history of treatment in service between June and July 1966 for various skin complaints and he has testified that at least some of his current skin complaints are the same as those experienced during service. Also, please note that as of the date of this remand, the Veteran's alleged herbicide exposure (Agent Orange) has not yet been established, however, this is subject to change pending the outcome of the above requested development action. All opinions and conclusions expressed must be supported by a complete rationale in a report. If the examiner is unable to answer any question presented without resort to speculation, he or she should so indicate and provide a rationale for why the opinion would require resort to speculation. 8. Upon completion of the above requested development, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented their consideration of Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 9. After completion of any action deemed appropriate in addition to that requested above, readjudicate the claim. All applicable laws and regulations should be considered. If any benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ MICHAEL LANE 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).