Citation Nr: 1603496 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 08-35 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for a right eye condition, to include as secondary to diabetes mellitus and/or Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran had active service from August 1961 to January 1965. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this matter to the RO for further development in September 2011. In February 2014, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development to determine whether the Veteran had exposure to Agent Orange. The action specified in the February 2014 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board regrets yet another remand in this matter, further development is required to ensure that all the Veteran's theories of entitlement are addressed. The Veteran has asserted that his diabetes mellitus and right eye disability were caused by chemical exposure during his active military service in Panama and South America. While in adjudicating the Veteran's claim, the RO has focused almost exclusively on whether the Veteran was exposed to tactical herbicides such as Agent Orange, the Veteran has also described in-service exposure to pesticides and contaminated food and water. The use of commercial pesticides and herbicides is consistent with the climate in Panama where service records reflect that the Veteran was stationed from 1963 to 1965 and the Board finds the Veteran's statement describing the nature of his exposure to be credible. A December 2011 VA examiner concluded that the Veteran's diabetes mellitus is less likely than not caused by herbicide exposure, but based this conclusion on the finding that the Veteran did not have any exposure to tactical herbicides, such as Agent Orange. The examiner did not address whether exposure to commercial herbicides or pesticides could have caused the Veteran's diabetes mellitus. Accordingly, the Board finds that a remand is required to address whether it is at least as likely as not that the Veteran's diabetes mellitus was caused by chemical exposure during his active military service, to include exposure to commercial products, not just Agent Orange. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994) (An appellant is not precluded from establishing service connection with proof of actual direct causation). Because a December 2011 VA examiner determined that the Veteran's right eye disability is as least as likely as not secondary to the Veteran's diabetes mellitus, the issue of entitlement to service connection for a right eye condition is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his diabetes mellitus. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's diabetes mellitus was caused or permanently aggravated by chemical exposure in service, to include exposure to commercial pesticides and herbicides and other contaminants. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). _________________________________________________ BRADLEY W. HENNINGS 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).