Citation Nr: 1742875 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 12-27 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1968 to July 1970. This case comes before the Board of Veterans'Appeals (the Board) from rating decisions in July 2012 and March 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In September 2016, the Board denied the Veteran's claim for entitlement to service connection for diabetes mellitus and remanded the issue of entitlement to service connection for a skin disability. In April 2017, pursuant to a Joint Motion for Partial Remand dated in March 2017, the United States Court of Appeals for Veteran's Claims (Court) vacated, in part, the Board's September 2016, decision, and remanded the portion of the Board's decision which denied service connection for diabetes mellitus. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand by the Board confers on claimants, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). It imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. In the regard to the issue of service connection for a skin disability, in September 2016, the Board remanded the issue for an addendum medical opinion that addressed whether the Veteran's fungal infection documented on the May 2013 VA examination was related to his groin/scrotal rash documented in June 1969, clarify whether the diagnoses of tinea pedis and tinea cruris of April 2012 were correct, and to specifically state if there is an existing diagnosis of tinea cruris. In January 2017 an addendum medical opinion was provided. However, the opinion does not fully address the Board's remand and is thus inadequate. First, the opinion did not directly address the diagnosis of tinea cruris and tinea pedis of April 2012. The January 2017 addendum opinion, in part, simply notes the Veteran's treatment in January 2011 and February 2012 and provides a summary of the Veteran's treatment and diagnoses. However, it does not state whether the examiner agrees with the April 2012 diagnoses as was requested by the Board. Further, the examiner's opinion does not address the Veteran's treatment in May 2013 at the VAMC in Sioux Falls for a fungal lesion as specifically requested by the Board's remand. Therefore, a remand is necessary to ensure substantial compliance with the remand order. The Veteran also seeks entitlement to service connection for diabetes mellitus (DM) due to herbicide agent exposure during his service in Thailand during the Vietnam era. Medical evidence of record shows the Veteran has been diagnosed with DM, a disease listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed in the case of certain veterans exposed to herbicide agents. The VA Adjudication Manual provides that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them at or near the perimeters of Thailand military bases. For Army veterans, there are different rules for establishing presumptive exposure to herbicides at Army bases. In the September 2016 decision, the Board correctly stated that "veterans who served at Army bases must have a Military Police (MP) military occupational specialty (MOS) or have served in a MP unit". However the Court in its April 2017 decision, determined that the Board erred in failing to consider or determine if the additional requirements of the M21-1 were satisfied. Pertinent provisions of the VA Adjudication Manual in use at the time of the original development of the Veteran's claim set forth procedures that VA must follow to verify reported herbicide exposure in Thailand. See M21-1 Part IV Subpart ii, Chapter 1, Section H para. 5(b). Specifically, the M21-1 provides that several items of development should be performed, including notifying the Veteran appropriately concerning Thailand herbicide exposure and asking for approximate dates, location, and nature of the alleged exposure in Thailand; and requesting verification of herbicide exposure from the United States Joint Services Records Research Center (JSRRC). The Memorandum directs such verification unless the claim is "inherently uncredible." As noted above, the Veteran served on active duty from January 1968 to July 1970, including service in Thailand at Ram Chit Chai and Camp Buohile from May 1968 to July 1970 with a construction battalion. His statements described how his duties as a mechanic and in the parts room of the Motor Pool required him to travel throughout the entire base as he "ordered parts, took parts out to the job sites, went to our supply to get parts. . . had to go to the south/southwest end of-the camp to get parts." His statements also noted that the base was not large, the perimeter was not off limits, and the perimeter was about 75 yards from his living and eating quarters and 50 yards from the parts room where he worked. He also reported witnessing aerial spraying along the perimeter. The Veteran has provided written lay evidence as to the activities he engaged in that may have possibly resulted in his exposure to herbicide agents. It appears that JSRRC has not been contacted to verify his possible herbicide exposure in Thailand. [Requests in the record to JSRRC only concerned possible verification of a stop in Vietnam in transit to Thailand, which was not able to be corroborated]. Accordingly, further development via the JSRRC to verify possible herbicide agent exposure in Thailand is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA examination opinion from a medical professional, other than the one who provided the August 2015 and January 2017 opinions, with appropriate expertise for an addendum opinion. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The examiner is requested to review the record and offer an opinion as to the following: A) Please review the April 2012 private treatment record and express agreement or disagreement with the private practitioner's diagnoses of tinea cruris and tinea pedis. Then please reconcile the diagnoses with the biopsy findings that there was no fungal component. B) Please identify, by medical diagnosis, any skin disability found. For each skin disability diagnosed, is it at least as likely as not (a 50 percent or better probability) that such disability is related to his military service (to include notations of the groin/scrotal rash documented in June 1969 in his STRs)? C) Please review the May 2013 Sioux Falls VAMC treatment records and provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's fungal infection is related to the Veteran's groin/scrotal rash documented in the June 1969 STRs. The examiner must include a complete rationale for all opinions provided, including citation to factual evidence and medical literature or principles as appropriate. 2. Attempt to verify the claimed exposure to herbicide agents through JSRRC, per M21-1 provisions. Specifically, send a request to JSRRC for verification as to whether the Veteran was potentially exposed to an herbicide agent during his period of service while stationed in Thailand at Ram Chit Chai and Camp Buohile from May 1968 to July 1970. The Board again notes the Veteran's contentions that he was exposed to herbicides while traveling throughout the base to obtain parts and to transport parts to job sites and at the parts room located close to the perimeter. Any response from JSRRC should be associated with the record. 3. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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). This appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ 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) (2016).