Citation Nr: 1427107 Decision Date: 06/16/14 Archive Date: 06/26/14 DOCKET NO. 11-15 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure. 2. Entitlement to service connection for coronary artery disease (claimed as part of ischemic heart disease), to include as due to Agent Orange exposure. 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to Agent Orange exposure and diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to Agent Orange exposure and diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal, in part, from June 2009 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. By these rating actions, the RO denied service connection for diabetes mellitus, unspecified neuropathy and coronary artery disease (April 2010), each to include as due to herbicide exposure. The Veteran appealed these rating actions to the Board. In a November 2009 statement to the RO, the Veteran clarified that he was seeking neuropathy of both the upper and lower extremities and as secondary to diabetes mellitus. Thus, the Board has re-characterized these issues to reflect the Veteran's contentions as noted on the title page. (See VA Form 21-4138, Statement In Support of Claim, dated and signed by the Veteran in November 2009). In September 2012, the Veteran testified before the undersigned at a video conference hearing conducted via the above RO. A copy of the hearing transcript has been associated with the clams file. During the hearing, the Veteran submitted additional evidence in support of his claim, along with a waiver of initial RO consideration. Thus, a remand to have the RO initially consider this evidence in the first instance in a Supplemental Statement of the Case is not required. 38 C.F.R. § 20.1304 (2013). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Board finds that it must remand the claims for service connection for diabetes mellitus and coronary artery disease (CAD), each to include as due to Agent Orange, for additional procedural development as described in the directives outlined in the indented paragraphs below. As the issues of entitlement to service connection for bilateral neuropathy of the upper and lower extremities are dependent, in part, on the development and adjudication of the issue of entitlement to service connection for diabetes mellitus, they must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran maintains, in part, that his currently diagnosed diabetes mellitus and CAD are the result of having sprayed tactical herbicides while on temporary duty assignment (TDY) to support the Sargent Missile System at White Sands Missile Range, New Mexico, on three (3) occasions in 1968. (Transcript (T.) at page (pg.) 5)). He contends that while on TDY at White Sands Missile Range, his unit performed three "firings and recoveries" of areas that had been sprayed with tactical herbicides by helicopters. (See Veteran's typewritten statement, received by the Board in September 2012). Service personnel records show that the Veteran was assigned to White Sands on TDY with the United States Army, Battery B, 3D Battalion, 38th Artillery, Fort Sill Oklahoma from November 19, to December 6, 1968. In support of his claims for service connection for diabetes mellitus and CAD, the Veteran submitted an April 1979 abstract from a report entitled, "Installation Assessment of White Sands Missile Range, Report No. 138," prepared by the United States Army Toxic and Hazardous Materials Agency. The study was prepared in order to assess the environmental quality of White Sands Missile Range with regard to the use, storage, treatment, and disposal of toxic and hazardous materials and to define any condition that might have adversely affected the health and welfare or resulted in environmental degradation. The study indicated that test ranges, burial sites, holding ponds, and demolition grounds represented major contaminated areas at White Sands, New Mexico. The study found that predominant contaminants at White Sands, New Mexico included herbicides, such as 2, 4-D and 2, 4, 5-T. (See April 1979 abstract, prepared by the United States Army Toxic and Hazardous Materials Agency, entitled, "Installation Assessment of White Sands Missile Range, Report No. 138"). In contrast, in April 2010, the United States Army and Joint Services Records Research Center (JSRRC) reported that available United States Army historical records did not document the spraying, testing, transporting, storage or usage of Agent Orange at White Sands Missile Range, New Mexico during the period from January 1, to February 28, 1968. JSRRC also related that Department of Defense (DOD) listing of herbicide spray areas and test sites outside the Republic of Vietnam was reviewed and White Sands Missile Range, New Mexico was not a listed location. Thus, JSRRC concluded that there was no documentation that the Veteran had been exposed to Agent Orange or other tactical herbicides while stationed at White Sands Missile Range, New Mexico from January 1, to February 28, 1968. (See JSRRC's April 2010 response). The Board notes that in performing its study, JSRRC used incorrect dates of the Veteran's service at White Sands Missile Range. The Veteran was on TDY at White Sands Missile Range from November 19, to December 6, 1968. Thus, on remand, the RO should request that JSRRC conduct a search of herbicide use at White Sands Missile Range, New Mexico using the Veteran's correct time period at that military facility (November 19 to December 6, 1968). The RO should also request that JSRRC reconcile its findings with the above-referenced April 1979 report, prepared by the United States Army Toxic and Hazardous Materials Agency. A complete copy of the United States Army Toxic and Hazardous Materials Agency's April 1979 report should also be requested by the RO on remand. In addition, the Veteran has maintained that he sprayed Agent Orange/tactical herbicides to clear the areas of vegetation while stationed at Loring Air Force Base, Maine, as a Nike Missile Crewman from September 1965 to April 1966 and as a Hawk Missile Crewman and Section Chief at Homestead Air Force Base, Florida, from April to December 1966. The Veteran's service personnel records confirm that he served as a Nike Missile Crewman at Loring Air Force Base, Maine, from September 10, 1965 to April 22, 1966 and as a HAWK Missile Crewman at Homestead Air Force Base, Florida, from April 22 1966, to January 3, 1967. The Veteran submitted internet articles reflecting that various types of contaminants and chemical defoliant activity were used at Loring Air Force Base and in the Florida Everglades, the location of Homestead Air Force Base. (See Internet articles entitled, "Superfund Site Progress Profile LORING AIR FORCE BASE" and "Veterans and Agent Orange," each dated in May 2009.) Thus, on remand, the RO should request that JSRRC conduct a search of herbicide use at these military facilities for the appropriate time periods. Finally, the Veteran testified that he has continued to seek treatment for his disabilities at the VA Medical Center (VAMC) in Ashville, North Carolina. (T. at pg. 4). While treatment records from the above-cited VA facility dated through January 2011 are of record, more recent reports are absent. As any outstanding records might contain information as to the etiology of the Veteran's diabetes mellitus, CAD and any currently present peripheral neuropathy of the bilateral upper and lower extremities, they are constructively of record and must be secured on remand. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding treatment records, to include those from the VAMC in Ashville, North Carolina, dated from January 2011 to the present. All efforts to obtain these records must be documented in the claims folder or uploaded to the Veteran's Virtual VA electronic claims file. 2. Contact the United States Army Toxic and Hazardous Materials Agency and request an entire copy of its April 1979 report titled, Installation Assessment of White Sands Missile Range, Report No. 138, as well as any other reports/information related to herbicide use at White Sands Missile Range, New Mexico. All efforts to obtain this record must be documented in the claims folder or uploaded to the Veteran's Virtual VA electronic claims file. 3. Following completion of the development requested in paragraph 2, above, request that JSRRC research its records to confirm whether or not the Veteran was exposed to tactical herbicides, such as (2, 4-D and 2, 4, 5-T) at the following military facilities during the noted time frames: (i) White Sands Missile Range, New Mexico, during the period from November 19 to December 6, 1968; (ii) Loring Air Force Base, Maine, from September 10, 1965 to April 22, 1966; and, (iii) Homestead Air Force Base, Florida, from April 22 1966, to January 3, 1967. JSRRC is specifically requested to reconcile its finding that it reviewed Department of Defense (DOD) listing of herbicide spray areas and test sites outside the Republic of Vietnam and that White Sands Missile Range, New Mexico, was not a listed location, and that there was no documentation that the Veteran had been exposed to Agent Orange or other tactical herbicides at White Sands Missile Range with the United States Army and Toxic and Hazardous Materials Agency's Report No. 138, published in April 1979, confirming that 2, 4-D and 2, 4, 5-T were used at that military facility. A negative reply should be requested in the event that the search results in no information. If the search has negative results, documentation to that effect should be included in the claims file. 4. If after the above-requested development has been completed and the Veteran's exposure to herbicides has been confirmed, he should be scheduled for a VA examination by an appropriate specialist to determine the etiology of any currently present peripheral neuropathy of his upper and lower extremities. The claims file should be reviewed by the examiner and that review should be indicated in the examination report. Any indicated tests should be accomplished. The examiner should specifically indicate if the Veteran has peripheral neuropathy of the right and left upper and lower extremities. Each extremity diagnosed must be identified. The examiner must respond to the following questions: (i) Is it as least as likely as not (50 percent probability or greater) that any currently present neuropathy of the upper and/or lower extremities had its onset during a period of active military service, was manifested within one year of discharge in December 1968 or is otherwise causally related to service, to include the Veteran's presumed exposure to tactical herbicides at White Sands Missile Range from November 19 to December 6, 1968. In offering this assessment, the examiner must acknowledge and discuss the competent lay report of the Veteran regarding the onset and chronicity of his symptoms. (ii) If any currently present neuropathy of the upper and lower extremities is not found to have been directly related to the Veteran's period of military service, is it as least as likely as not that it was caused or aggravated by (permanently increased in severity beyond the natural progression of the disorder) by the Veteran's diabetes mellitus? For any peripheral neuropathy of the upper and lower extremities that the examiner finds to have been aggravated by the Veteran's diabetes mellitus, he or she should identify the degree of disability that is attributable to the aggravation, if possible. All findings, along with a fully articulated medical rationale for all opinions expressed, should be set forth in the examination report. In addition, the examiner must acknowledge and discuss lay evidence regarding any continuity of symptomatology since service. (iii) If the VA examiner determines that he or she is unable to provide the requested medical opinion without resort to speculation, this should be indicated in his or her report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then, the RO should readjudicate the issues of entitlement to service connection for diabetes mellitus and CAD, each to include as secondary to herbicide exposure and peripheral neuropathy of the upper and lower extremities, to include as secondary to herbicide exposure and diabetes mellitus. If the desired benefits are not granted, a supplemental statement of the case should be furnished to the Veteran and his representative. They should be given the opportunity to respond. The case should then be returned to the Board, if otherwise in order. 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). These claims 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). _________________________________________________ BARBARA B. COPELAND 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).