Citation Nr: 1802088 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-14 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for ischemic heart disease, to as include due to in-service exposure to herbicides. 2. Entitlement to service connection for diabetes mellitus, type II (diabetes), to include as due to in-service exposure to herbicides. 3. Entitlement to service connection for skin cancer (melanoma), to include as due to in-service exposure to herbicides. 4. Entitlement to service connection for renal cancer, to include as due to in-service exposure to herbicides. 5. Entitlement to service connection for malignant neoplasm of the bladder (bladder cancer), to include as due to in-service exposure to herbicides. 6. Entitlement to service connection for erectile dysfunction due to diabetes. 7. Entitlement to service connection for right lower extremity neuropathy due to in-service exposure to herbicides. 8. Entitlement to service connection for left lower extremity neuropathy due to in-service exposure to herbicides. 9. Entitlement to service connection for gall bladder removal, to include as due to in-service exposure to herbicides. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to June 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from January 2011, September 2013, April 2015, May 2015, and June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In September 2017, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran contends that his claimed disabilities are due to his in-service exposure to herbicides, or that his claimed disabilities were due to disabilities that resulted from herbicide exposure. Additional development is required. Preliminarily, the Board notes that the evidence does not appear to support the conclusion that the Veteran is presumed to have been exposed to herbicides during service. See VBA Manual M21-1, IV.ii.1.H.2.c. However, this does not preclude him from providing evidence that he was directly exposed to herbicides during service. 38 C.F.R. § 3.309(e). At the September 2017 hearing, the Veteran's representative argued that the Veteran has many of the conditions presumptively associated with in-service exposure to herbicides. The Veteran also argued that his claimed conditions are attributed to exposure to herbicides. In an October 2017 statement, Dr. S.L., M.D., indicated that it was his professional opinion that the Veteran's exposure to herbicides was the cause of the onset of both his diabetes and malignancies. The statement pointed out that the Veteran has no evident family history of diabetes or malignancies. While the opinion of Dr. S.L. is useful evidence, it is based on the Veteran's reported exposure to herbicides. As noted above, it does not appear that the Veteran is entitled to the presumption of exposure to herbicides under the current regulations. However, this does not prevent Dr. S.L. or another provider from presenting competent medical evidence supporting the representative and the Veteran's assertions from the hearing. Specifically, given the number of disabilities the Veteran has that he believes are linked to herbicide exposure, and due to his lack of other risk factors for these disabilities, a competent medical opinion that concludes that it is as likely as not that the Veteran was exposed to herbicides in-service would be of probative value in this case. However, the opinion should not be premised on the Veteran's in-service exposure to herbicides, as the current opinions are, because that fact has not been conceded by VA. In other words, to be of sufficient probative value in this case, the doctor's opinion must find that given the Veteran's medical history and other factors, it is as likely as not that he was exposed to Agent Orange in service and that this exposure is related to the development of his claimed conditions. The Veteran should therefore be provided the opportunity to obtain such a supplemental opinion or be scheduled for VA examination to address this theory of entitlement. As all the Veteran's claims are premised on exposure to herbicides or secondary service connection due to disabilities related to herbicide exposure, all of the Veteran's claims must be returned pending additional development. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Notify the Veteran of the Board's decision and provide him with a copy of this REMAND. Notify him that the Board is requesting clarification from Dr. S.L. or another provider as to whether a competent medical opinion can be offered that the Veteran was exposed to herbicides during service, given his current disabilities and lack of other risk factors for the disabilities. Reinforce for the Veteran and any medical provider that the Board and VA have not conceded the Veteran was exposed to herbicides in service, and instead are soliciting a competent medical opinion as to whether it can be opined that it is as likely as not the Veteran was exposed to herbicides given his current diagnoses. Provide the Veteran adequate time to obtain such an opinion. 3. If, and only if, the Veteran fails to obtain an opinion addressing the reasons for the Board's remand, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to provide an opinion on the etiology of the Veteran's claimed disabilities. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and that VA has not conceded that the Veteran was exposed to herbicides. The examiner should then: (a) Provide a specific diagnosis for any claimed disability. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran was exposed to herbicides during service that resulted in his claimed conditions. The VA examiner should note that VA has not conceded that the Veteran was exposed to herbicides, and address the Veteran's risk factors for his disabilities and Dr. S.L.'s October 2017 opinion. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. After the above development has been completed, perform any additional development deemed necessary in light of any new evidence obtained. This development may include, but is not limited to, the scheduling of additional VA examinations. 5. After the above development has been completed, readjudicate the Veteran's claims. If the benefits sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran 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). _________________________________________________ Michael J. Skaltsounis 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) (2017).