Citation Nr: 1600713 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 12-22 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes due to Agent Orange, mustard gas, tear gas, and chlorine exposure. 2. Entitlement to service connection prostate cancer due to Agent Orange, mustard gas, tear gas, and chlorine exposure. 3. Entitlement to service connection for a dental condition. 4. Entitlement to service connection for a vision condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from July 1954 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in October 2015. A transcript of the hearing has been associated with the claims file. The issue of entitlement to dental treatment has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran when further action is required. REMAND This appeal must be remanded for the following reasons. Mustard Gas Development In a September 2010 statement, the Veteran wrote that he was exposed to "different gases and camouflauges [sic]" as part of his training to be a combat medic. At his Board hearing, he explained that his exposures include mustard gas, tear gas, and chlorine gas. See Board Hr'g Tr. 2, 12-13. According to a November 2008 RO email, "The [V]eteran was not a participant in Mustard Gas, SHAD or CBRNE:according to DoD's database." At present, it does not appear that all action needed to attempt to confirm his exposures has been taken. Specifically, the M21-1 directs that: If Compensation Service reports that the Veteran is not listed in the Chem-Bio database, mail copies of the Veteran's service personnel records to the ompensation Service at the following address: Department of Veterans Affairs Compensation Service (211B) ATTN: Mustard Gas Manager 810 Vermont Ave, NW Washington, DC 20420 M21-1.IV.ii.1.F.3.e. The claims file does not show that this second step was undertaken. Because the Veteran's service records are lost and presumed destroyed while in VA's custody, it is particularly imperative that all reasonable attempts be made, including by following the steps in the M21-1, to determine his exposure. Missing Records With regard to the claimed diabetes, the Veteran testified at the Board hearing that he was first diagnosed with the condition at VA approximately 20 to 25 years prior. The Board notes that this would be approximately 1990 to 1995. At present, the claims file includes some VA treatment records since 1990. These records, however, do not reflect the initial diagnosis of diabetes. Accordingly, it appears that the records are incomplete. With regard to the claimed prostate cancer, the Veteran's Board hearing testimony and several VA treatment records, including in February 2011, state that he was initially diagnosed with the condition at a medical facility called "Medical City." It appears that this refers to the non-VA hospital called Medical City Dallas Hospital. Because those records are potentially relevant, the Veteran should be given the opportunity to obtain them for review or request VA to obtain them on his behalf. VA Examinations Once all action outline above is complete, the Board next finds that VA examinations are needed to fully evaluate the complex medical questions raised by the appeal. 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). Expedited handling is requested.) 1. Send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all private (non-VA) health care providers who may have additional records pertinent to the remanded claims, to specifically include Medical City Dallas Hospital. The letter should request that he complete a release for all identified records. Also notify the Veteran that he may submit written statements from himself and/or from other people who have first-hand knowledge describing the history of his in-service and/or post-service symptoms. The Veteran should be provided an appropriate amount of time to submit this evidence. 2. Attempt to obtain all identified records not previously obtained. All efforts under this paragraph must include an initial request and, if the records are not received, at least one follow-up request (unless a response to the initial request makes clear that the records sought do not exist or that a follow-up request for the records would be futile). Associate all obtained private records with the claims folder. If the Veteran does not provide any necessary release, request that he obtain the records and provide them to VA. 3. Obtain all of the Veteran's VA treatment records not already associated with the claims file, including all records prior to 1995. Then, continue associating VA treatment records to the claims file on an ongoing basis until the case is recertified to the Board. 4. All attempts to fulfill the preliminary development specified in paragraphs 1-3 above must be documented in the claims file, and the Veteran must be notified of the results of any unsuccessful efforts. The Veteran must be also notified that he is always allowed to provide such records himself, notwithstanding VA's inability to obtain the records. 5. Undertake all action needed consistent with M21-1.IV.ii.1.F.3.e, to determine the likelihood that the Veteran was exposed to Mustard Gas during service. 6. After completing all development set forth in paragraphs 1-5 above, arrange for the Veteran to undergo a VA examination to address the claimed diabetes and prostate cancer disorders. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the question: For each disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, such as exposure to Mustard gad, tear gas, or chlorine gas? For purposes of answering this question, the examiner is asked to assume as true that the Veteran was exposed to these substances. In answering all questions (a) to (d), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 7. After completing all development set forth in paragraphs 1-6 above, arrange for the Veteran to undergo a VA examination to address the claimed vision disorder. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all vision disorders found extant. If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, such as exposure to Mustard gad, tear gas, chlorine gas, or the recoil of firing an M-1 rifle? For purposes of answering this question, the examiner is asked to assume as true that the Veteran was exposed to these substances. (c) If not directly related to service on the basis of question (b), is any vision condition proximately due to, the result of, or caused by any other medical condition(s), such as diabetes? If so, please identify the other medical condition(s). (d) If not caused by another medical condition, has any vision disorder been aggravated (made permanently worse or increased in severity) by any other medical condition(s), such as diabetes? If so, please identify the other medical condition(s). Also, please identify whether any increase in severity was due to the natural progress of the disease. In answering all questions (a) to (d), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 8. After completing all development set forth in paragraphs 1-6 above, arrange for the Veteran to undergo a VA examination to address the claimed dental disorder. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all dental disorders found extant. If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? This should specific include whether the Veteran's loss of teeth was due to loss of substance of the body of maxilla or mandible without loss of continuity as a result of trauma involving exposure to Mustard gas, tear gas, chlorine gas, or the recoil of firing an M-1 rifle, which the Veteran maintains made his teeth bleed. If not, did the loss of teeth result from disease such as osteomyelitis (but not the loss of alveolar process as a result of periodontal disease). (c) If not directly related to service on the basis of question (b), is any dental condition aggravating (made permanently worse or increased in severity) any other medical condition(s), such as diabetes? If so, please identify the other medical condition(s). In answering all questions (a) to (c), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 9. After completing all actions set forth in paragraphs 1-8, plus any further action needed as a consequence of the development completed in paragraphs 1-8 above, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). 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 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).