Citation Nr: 1341940 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 09-44 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from October 1972 to August 1975. The matter is before the Board of Veterans' Appeals (Board) on appeal from November 2007 and July 2009 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that the Veteran's file was transferred to the RO in Des Moines, Iowa. The Veteran testified before a Decision Review Officer (DRO) in June 2011. The Veteran also testified before the undersigned in June 2013. Both transcripts have been associated with the claims file. The Veteran subsequently submitted a statement from his brother and waived its consideration by the RO. See 38 C.F.R. § 20.1304(c) (2013). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals the June 2013 hearing transcript and VA treatment records dated April 2010 to March 2012. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This appeal is REMANDED to the Department of Veterans Affairs Regional Office via the AMC. VA will notify the appellant if further action is required. REMAND Diabetes Mellitus Extensive development has been conducted by the RO in connection with the Veteran's diabetes mellitus claim. In regard to the Veteran's allegation of exposure, however, the Board finds that the Veteran's specific contention that during Operations Frequent Wind and Eagle Pull, he was exposed to herbicides from the air and from exposure to evacuees and aircraft that were in the Republic of Vietnam needs to be appropriately addressed. The research findings regarding Navy and Coast Guard Ships During the Vietnam Era from the JSRRC should be associated with the claims file. M21-1MR, Part IV, Subpart ii, 2.C.10.m. Low Back Disability The Veteran contends that his low back disability is due to the wear and tear of manual labor in-service, including lifting, bending, and twisting. He contends that he suffered from back pain throughout his active service and continued to experience such pain to the present. The Veteran was afforded a VA examination in September 2007. The examiner opined that it was less likely than not that the Veteran's low back disability was related to service. The examiner opined that the Veteran was treated once in service for low back pain and was not treated again until 1996. Private treatment records that were associated with the Veteran's claim file at the time of the VA examination showed that the Veteran was treated for back pain in December 1991. Also, after the VA opinion, additional pertinent VA and private records were associated with the claims file. For example, in February 1986, the Veteran was seen for back complaints. From April 1991 to June 1991, the Veteran complained of radiating back pain. In May 1993, the Veteran complained of low back spasms. Accordingly, the examination report must be returned to the examiner for an addendum opinion in light of the foregoing evidence. Accordingly, the case is REMANDED for the following action: 1. In regard to the Veteran's allegation of exposure to herbicides from the air and exposure to evacuees and aircraft that were in the Republic of Vietnam during Operations Frequent Wind and Eagle Pull, the RO/AMC should associate the research findings from JSRRC regarding Navy and Coast Guard Ships During the Vietnam Era with the claims file. M21-1MR, Part IV, Subpart ii, 2.C.10.m. 2. Return the examination report and claims file to the examiner who conducted the September 2007 VA examination (or another appropriate examiner if unavailable) for an addendum opinion on the Veteran's low back disability claim. In regard to the VA examiner's finding that the Veteran was not treated post-service until 1996, the examiner's attention is directed to records that show treatment for back complaints in 1986, 1991, 1993, etc. and lay statements from the Veteran and his brother that the Veteran had back pain in service and continued to have back pain ever since service. Accordingly, the examiner is asked to opine on the following: Is it at least as likely as not (i.e., is there a 50/50 degree of probability or higher), that any current back disability, to include strain, herniated disc, and degenerative disc disease, had its onset in service, or is otherwise etiologically related to symptomatology noted in service. The examiner must address the likelihood that the current low back disability is a continuing disease process of symptomatolgy noted in service including the theory that the in-service symptoms rendered the Veteran's back more prone to subsequent injuries/problems post-service. The examiner is requested to provide a thorough rationale for any opinion provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 3. After the development requested above has been completed, the AMC/RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran should be furnished 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 matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeal 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) (2013).