Citation Nr: 1829201 Decision Date: 05/24/18 Archive Date: 06/12/18 DOCKET NO. 14-30 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to herbicide exposure and as secondary to type II diabetes mellitus. 3. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to herbicide exposure and as secondary to type II diabetes mellitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran has contended that he developed type II diabetes mellitus and bilateral lower extremity peripheral neuropathy due to his exposure to herbicides during his service in Thailand during the Vietnam Era. VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases. See VA Adjudication Procedure Manual, M21-1, Part IV.ii.1.H.5. As such, herbicide exposure should be conceded on a facts found or a direct basis if a veteran served in the Air Force in Thailand during the Vietnam era at one of the listed bases, including the Nakhon Phanom Royal Thai Air Force Base, as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. M21-1, Part IV.ii.1.H.5.b. The Veteran's service personnel records indicate that he had service at the Nakhon Phanom Royal Thai Air Force Base during the Vietnam Era. He has submitted statements in support of his contention that he served near the air base perimeter. If a veteran contends that he had service near the air base perimeter, the VA Adjudication Procedures Manual (M21-1) requires that the Veteran be requested to provide approximate dates, location, and nature of the alleged exposure. M21-1, Part IV.ii.1.H.5.b. The case must then be sent to the Joint Services Records Research Center (JSRRC) coordinator to issue a formal finding regarding the sufficiency of information required to verify herbicide exposure. A review of the claims file shows that the Veteran did provide approximate dates of his herbicide exposure in April 2014. However, in the July 2014 VA Memorandum, it was noted that the Veteran did not respond to a request regarding his exposure to herbicide agents. Given this error, a remand is required to determine whether there is sufficient information to verify the Veteran's claimed herbicide exposure. Moreover, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases presumed to be associated with herbicide exposure include type II diabetes mellitus and early-onset peripheral neuropathy. 38 C.F.R. § 3.309(e). Although early-onset peripheral neuropathy is listed as one of the diseases VA has associated with herbicide exposure, it must have manifested to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307 (a)(6)(ii). During the August 2017 Board hearing, the Veteran indicated that he sought treatment for his diabetes and peripheral neuropathy approximately 15 years earlier, which would have been several years after the Veteran's discharge from service. Thus, it is unclear whether the Veteran had any manifestation of peripheral neuropathy in the year following the last date he may have been exposed to herbicide agents. The regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). A review of the Veteran's medical records shows that he was noted to have neuropathy in July 2013. Medical records also contain reports of burning, numbness, and pain in his extremities. However, it is unclear whether the Veteran has a confirmed diagnosis of peripheral neuropathy, and if he does have such a diagnosis, when it manifested. In addition, if the Veteran's peripheral neuropathy did not manifest within a year from his last date of herbicide exposure, a remand is necessary to determine whether he could be entitled to service connection based upon a showing of direct service connection or secondary to type II diabetes mellitus. Finally, during the August 2017 hearing, the Veteran reported that he had received treatment from a VA facility in Missouri for the last 15 years. A review of the claims file does not show that all of these records have been obtained. Accordingly, a remand is needed to obtain any outstanding records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for type II diabetes mellitus and bilateral lower extremity radiculopathy. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file The AOJ should also obtain any outstanding VA medical records, including any medical records from a VA facility in Missouri dated since 2002. 2. The AOJ should review the April 2014 response provided by the Veteran regarding his exposure to herbicides and his August 2017 hearing testimony and provide the Joint Services Records Research Center (JSRRC) with that information. If the information is not adequate, the AOJ should request that the Veteran provide additional details regarding his exposure to herbicides, including information about approximate dates, location, and nature of the exposure. Any response or lack thereof should be documented in the record. The case should then be sent to the JSRRC coordinator to issue a formal finding regarding the Veteran's herbicide exposure. If there is insufficient information to verify exposure, this should be clearly noted in the record. 3. After completing the foregoing development, if herbicide exposure is verified, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a VA medical opinion to determine the nature and etiology of his bilateral lower extremity peripheral neuropathy. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is considered competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should determine whether the Veteran has a diagnosis of bilateral lower extremity peripheral neuropathy, and if so, when the disorder first manifested. If the Veteran has a diagnosis, the examiner should address whether it is at least as likely as not that the Veteran's bilateral lower extremity peripheral neuropathy was causally or etiologically related to his military service, to include any herbicide exposure therein (regardless of the fact that such an association may not be presumed). The examiner should also address whether it is at least as likely as not that any bilateral lower extremity peripheral neuropathy was either caused by or permanently aggravated by the Veteran's type II diabetes mellitus. (The term "at least as likely as not "does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]"38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Thereafter, the case should be reviewed by the AOJ on the basis of 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 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).