Citation Nr: 1807763 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Service connection for diabetes mellitus type II, to include as due to herbicide agent exposure. 2. Service connection for coronary artery disease, to include as due to herbicide agent exposure. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1957 to June 1977. The Veteran died in July 2016. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). In a November 2017 letter, VA deemed the Appellant to be a valid claimant for substitution for the Veteran's appeal under 38 C.F.R. § 3.1000 (2017) and 38 C.F.R. § 3.1010(c)(2) because the Veteran's claim was pending at his time of death. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, the Appellant's claims must be remanded for additional development. The Appellant contends that the Veteran's diabetes mellitus and coronary artery disease were caused by herbicide agent exposure during the Veteran's service at Korat Royal Thai Air Force Base (RTAFB) in Thailand from March 1972 - March 1973. For diseases listed under 38 C.F.R. § 3.309(e), such as type II diabetes mellitus and ischemic heart disease (including coronary artery disease), herbicide agent exposure will be presumed if a veteran served in Vietnam, Korea or in the Air Force during certain times and under certain circumstances. 38 C.F.R. § 3.307(a)(6). This presumption also applies to service on or near perimeters of military bases in Thailand during the Vietnam War era. An "herbicide agent" specifically refers to chemicals in herbicides used in support of U.S. military operations during the Vietnam War (such as Agent Orange); it does not refer to commercial herbicides or other chemicals. 38 C.F.R. § 3.307(6)(i). Where herbicide agent exposure cannot be presumed because of the nature of the Veteran's service or the chemical in question, exposure can be demonstrated on a facts-found basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For claims that allege service connection due to herbicide exposure, as with any other claim, VA has a duty to assist a claimant by making reasonable efforts to obtain evidence necessary to substantiate the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c). Here, a review of the record suggests that further development is warranted. In a June 2012 Agent Orange (Herbicide) Exposure Decision, the RO determined that herbicide exposure could not be conceded in this case because the Joint Services Records Research Center (JSRRC) found no report of Agent Orange being used while the Veteran was stationed at Korat RTAFB. It also determined that the Veteran's duties would not have required him to be in proximity to the base's perimeter. However, an information request from the Defense Personnel Records Information Retrieval System, upon which the decision was made, provides dates of claimed herbicide exposure from only March 1972 to May 1972, even though the Veteran served in Thailand until March 1973. Accordingly, a remand is necessary to make an additional inquiry regarding the Veteran's alleged herbicide exposure for dates that cover his entire tour in Thailand. A remand is also necessary to obtain medical opinions for each of the Veteran's claimed disabilities. VA's duty to assist includes obtaining a medical examination or opinion when an examination or opinion is necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d). Furthermore, when VA undertakes to provide an examination or opinion, it must ensure that such is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Regarding the claim for service connection for coronary artery disease, the Veteran was provided a VA examination in November 2011 that diagnosed ischemic heart disease (noted in the examination report to include coronary artery disease), but no nexus opinion was obtained to allow the Board to assess whether it is related to service. A medical opinion must be obtained to address this issue. Furthermore, the record shows that the Veteran underwent heart surgery in 2002, but there are no medical records in the claims file pertaining to this event. VA's duty to assist claimants in substantiating a claim for VA benefits includes a duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate the claim. 38 U.S.C. §§5103A; 38 C.F.R. § 3.159(c). The outstanding treatment records must be obtained before VA can proceed with a decision on this matter. Regarding the claim for service connection for diabetes mellitus type II, no examination was provided. VA must provide an examination where there is competent evidence of a current disability, evidence of an in-service injury, disease or event, an indication that the disability may be associated with service, and insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether there is an "indication" the disability "may" be associated with service is low. McLendon, 20 Vet. App. at 83. Here, the Veteran's post-service treatment records show a diagnosis of diabetes mellitus type II; however, there is insufficient medical evidence on record to establish a nexus to service. Accordingly, the case is REMANDED for the following action: 1. Contact the JSRRC and request verification regarding whether the Veteran was exposed to an herbicide agent at any time, from March 1972 to March 1973, while he was assigned to Korat RTAFB, Thailand. A copy of the request(s) to the JSRRC should be included in the claims file. Then, contact all appropriate sources to investigate the Veteran's specific contentions regarding exposure to herbicide agents during his active service in Thailand between March 1972 and March 1973. Attempt to verify the following: that as part of his duties for the 338th Civil Engineering Squadron, the Veteran had to inspect the perimeter fencing for needed work or repair. The AOJ should make all available efforts to obtain such records, and all such attempts should be reflected in a written memorandum included in the claims file. 2. Obtain and associate with the claims file any of the Veteran's outstanding VA treatment records. 3. Contact the Appellant and obtain the provider name, address, and approximate date of treatment for any additional treatment records related to the Veteran's heart conditions and diabetes mellitus type II. Obtain all records adequately identified by the Appellant, and for which the Appellant has signed the appropriate releases, and associate them with the claims file. If any identified records are not obtainable (or none exist), the Appellant should be notified and the record clearly documented. 4. Once the aforementioned development has been completed, obtain a VA opinion from a medical professional as to the etiology of the Veteran's diabetes mellitus type II. The entire record must be reviewed so the medical professional may become familiar with the Veteran's pertinent medical history. Following a review of the relevant evidence, to include the claims file, service treatment records, and post-service treatment records, the medical professional should opine on the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes mellitus type II had its onset during service, within one year of service separation, or is otherwise causally related to service. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided. If the medical professional is unable to provide the requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 5. Once the development in #1, #2 and #3 has been completed, obtain a VA opinion from a medical professional as to the etiology of the Veteran's coronary artery disease. The entire record must be reviewed so the medical professional may become familiar with the Veteran's pertinent medical history. Following a review of the relevant evidence, to include the claims file, service treatment records, and post-service treatment records, the medical professional should opine on the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's coronary artery disease had its onset during service or is otherwise causally related to service. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided. If the medical professional is unable to provide the requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the claims. If any benefit sought in connection with a remanded claim is denied, furnish to the Appellant and her representative an appropriate SSOC that includes clear reasons and bases for all determinations and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).