Citation Nr: 19185283 Decision Date: 11/12/19 Archive Date: 11/12/19 DOCKET NO. 09-31 294 DATE: November 12, 2019 ORDER Entitlement to service connection for diabetes mellitus type II (hereinafter “diabetes”) is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during active service. 2. The Veteran is currently diagnosed with diabetes, a disease presumptively associated with herbicide agent exposure. CONCLUSION OF LAW The criteria to establish service connection for diabetes have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served in the Army Reserves and had a period of active service from March 1969 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2013 decision, the Board denied the Veteran’s claim for service connection for diabetes. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2017 Memorandum Decision, the Court vacated the Board’s decision, finding that the Board did not adequately address the Veteran’s multiple contentions, and that the VA examination relied upon in denying the claim was inadequate. Accordingly, the Court remanded the matter to the Board for development and readjudication. In a November 2018 decision, the Board remanded the matter to the RO for further development. The claim has now been returned to the Board for further appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for diabetes Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Certain diseases, including type II diabetes, are associated with herbicide agent exposure under VA law and shall be service-connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307(d) are also satisfied. Notwithstanding the foregoing presumption provisions, a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A lay person is competent to report on the onset and reoccurrence of current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran in this case seeks service connection for diabetes, which he asserts is related to his exposure to herbicide agents, asbestos, bacteria, and/or fungus during active service. As an initial matter, the Board finds that the Veteran has a current diagnosis of diabetes. See August 2007 VA treatment record. Turning to the evidence, the Veteran’s military personnel records reflect that he served at Fort Ord and Hunter Liggett Military Reservation (HLMR) in California under the Combat Development Experimentation Command (CDEC). The Veteran’s DD-214 shows his military occupational specialty (MOS) was light weapons infantryman. His record of assignments indicates his principal duties were grenadier, personnel carrier driver, and assistant gunner. The Veteran asserts he was also assigned to work as a supply clerk to process the inflow of clothing and equipment returning from Vietnam. See Veteran’s statements received October 2000 through September 2019. He asserts he was ordered to attend supply school at Fort Lewis in January and April 1970 so he could learn supply room procedures, which is how he acquired his secondary MOS of 76-Y. See Veteran’s statements received December 2014 through September 2019. The Veteran maintains that handling clothing and equipment from Vietnam put him in direct contact with Agent Orange and various other environmental substances and fungi which were either used in Vietnam or were indigenous to Vietnam. See October 2007 claim application. The Veteran also asserts he was exposed to asbestos dust in the supply room and from driving an armored personnel carrier (APC). See Veteran’s statements received July and September 2019. In addition, the Veteran asserts he was sprayed with Agent Orange as part of an experiment on its effects conducted by CDEC. See -Veteran’s statements received December 2008 through September 2019. The Veteran reports he “went on sick call numerous times for skin rashes, open sores and bleeding scaby (sic) skin problems (along with many others in [his] outfit) due to the testing” and that he was given an antibiotic and salve, neither of which were very effective. See Veteran’s statement received December 2014. The Veteran asserts he had numerous skin outbreaks from April 1970 until his separation from service in January 1971. Id. The Veteran reports that the medical personnel who treated him in sick call told him he had been sprayed with Agent Orange, and that this was confirmed by a conversation he had with the pilots assigned to spray him and his fellow servicemembers. See Veteran’s statements received April and September 2019. The Veteran states he “learned from conversations with those conducting the experiments that various agents and compounds were being added to AO and in various concentrations to determine the effects,” and that he was sprayed with at least one compound that was mixed with 2,3,4,7,8-tetrachlorodibenzodioxin (TCDD). See Veteran’s statement received December 2014 and November 2014 VA Form 21-0781. He asserts that he was also diagnosed with “jungle rot” on sick call even though he had never been in the jungle, and that he had “blood sugar issues” while on active duty where he felt woozy and was often unable to stand upright during formation. See Veteran’s statements received December 2008 through September 2019. In a July 2019 statement, the Veteran states that low blood sugar caused by his diabetes “was present during my term of service and the years since, having been misdiagnosed as various incorrect illness[es]… no one could tell me why I was light-headed, edgy feeling, or sweating profusely.” In his October 2007 claim application, the Veteran asserts that there is no history of diabetes or skin disorders in his family, and that his only other risk is the exposures he experienced while serving in the military. The Veteran’s service treatment records (STRs) consist of an April 1968 entrance examination report, a December 1970 report of medical history and separation examination report, and a January 1971 Statement of Medical Condition indicating that there had been no change in his medical condition since the December 1970 examination. In the December 1970 report of medical history, the Veteran endorsed skin diseases, soaking sweats (night sweats), and boils, and indicated that neither of his parents had diabetes. The Veteran’s Health Record-Abstract of Service, Chronological Record of Medical Care, Radiographic Reports, Laboratory Reports, and Immunization Record are all blank. In a May 1992 private treatment record, Dr. S.L., dermatologist, noted that the Veteran’s chief complaint was “hands” and diagnosed him with “Island Syndrome 110.9.” Information available to the public on the internet indicates that 110.9 is the diagnosis code for dermatophytosis, unspecified – a fungal infection of the skin – in the International Classification of Diseases, 9th Revision (ICD-9). In a September 2000 VA record of a phone call with the Veteran, he reported that he wished to file a claim for service connection as he had what appeared to be “jungle rot,” that he did the laundry of soldiers who were in Vietnam while stationed in California, and that his rash broke out after handling their laundry. In a December 2000 VA treatment record, Dr. J.K. noted no family history of diabetes. In a December 2007 VA treatment record, Dr. I.Y. noted that the Veteran’s maternal aunt had diabetes and that the Veteran was in the infantry and “worked in supply” while in the Army. In a September 2008 Agent Orange Registry examination report, Dr. C.C. wrote, “[t]his 59 year old Army veteran was exposed to Agent Orange between 1969 and 1970. His exposure history is unusual in that he never had a tour of duty in Viet Nam, but rather claims he was exposed indirectly. He was assigned to the California based experimentation division where he handled equipment that was used in Viet Nam.” Dr. C.C. further noted that the Veteran had a rash with pruritic, scaly maculopapular lesions that appear on his legs, chest, arms, and back periodically, and that the Veteran had been evaluated and treated numerous times by primary care physicians and dermatologists. Dr. C.C. also mentioned that the Veteran had no family history of diabetes. The Veteran asserts that after the September 2008 examination, Dr. C.C. informed him that his “rapid high and low blood sugar flares along with the other issues with skin rashes, itching and other symptoms could only be explained by AO exposure.” See December 2014 notice of disagreement (NOD). The Veteran recalls that Dr. C.C. told him he knew his set of symptoms were “unique to AO herbicide exposure and that there was no other explanation that fit.” See December 2014 NOD; see also Veteran’s statements received February 2015 and September 2019. In an April 2010 email attachment from a representative of the VBA Compensation and Pension Service, there is a discussion of two documents prepared by the Department of Defense (DoD) listing herbicide use and test sites outside Vietnam. Fort Ord and HLMR are not listed on either document, and neither document contains any references to routine base maintenance activities such as range management, brush clearing, weed killing. The VBA representative notes, “[w]e have been advised by DoD that such small scale non-tactical herbicide applications have not been complied into a list and records of such activity have not been kept” and that there is “no way to know the chemical content of any such non-tactical herbicide use.” In a response received June 2011, the Joint Services Records Research Center (JSRRC) made a formal finding that it lacked information required to verify the Veteran’s exposure to Agent Orange during military service after following all procedures to obtain the necessary information. In a response received June 2013, the Defense Personnel Records Information Retrieval System (DPRIS) indicated that the National Archives and Records Administration (NARA) was unable to locate 1970 unit records submitted by the 41st Inf Company G USACDCEC, Fort Ord, California, but that the Army records available to them do not document the spraying, testing, transporting, storage, or usage of Agent Orange at HLMR or Fort Ord, California. DPRIS and NARA also reviewed DoD’s listing of herbicide spray areas and test sites outside Vietnam and noted that Fort Ord and HLMR are not listed locations. They concluded that they “are unable to verify or document that [the Veteran] was exposed to Agent Orange or other tactical herbicides while stationed at these locations…” In a response received April 2014, JSRRC made another formal finding that it lacked information required to verify the Veteran’s exposure to Agent Orange from October 1969 to November 1969 and from October 1970 to November 1970. The response indicates there is “no documentation of spraying, testing, transporting, storage, or usage of Agent Orange at Fort Hunter Liggett or Fort Ord during 1969, or during the period of October 1, 1970 to November 30, 1970.” In July 2014, the Veteran submitted internet articles describing HLMR as one of the largest testing facilities in the world and that according to online sources and witnesses, defensive bio-chem warfare technology was tested there. One article indicated that “[i]ts size, diversity of undeveloped terrain, isolation, and the adjacent national forest coupled with its unencumbered airspace and proximity to the sea, qualify this installation as one of the premiere military training facilities of the United States.” In correspondence received December 2014, the Veteran included excerpts from several prior Board decisions in which other veterans reported they were exposed to herbicides while serving at Fort Ord and HLMR. For example, in a May 2006 statement, a veteran in one of the cases asserted that his prostate and colon cancers were caused by exposure to herbicides at HLMR when, as a member of a Combat Experimental Regiment, he was sprayed with herbicides. Another veteran maintained he developed diabetes due to exposure to herbicides or Agent Orange while serving stateside, particularly at Fort Ord in 1972. It is noted that prior Board decisions are non-precedential. The Veteran also submitted an internet article entitled “Calling Viet Nam Vets, RE: Agent Orange!” wherein a veteran, P., reported that while he was stationed at Fort Ord in 1968, he underwent induction training for Vietnam and spent five days and nights in a jungle-like area and a mock-up of a village. P. noticed a “funky” smell which one of the recruits mentioned to a drill instructor, who told the recruits “to get used to that smell because it was agent orange.” In the article, P. also commented, “[i]t is interesting to note that the EPA has established a Super Fund for numerous forts and bases across the US, and Ord was one of them that needed toxic cleanup.” P. indicated that he had diabetes and opined that “it is time that the VA and our government own up to what their use of agent orange in the USA has done to us.” See December 2014 correspondence. Also included in the Veteran’s December 2014 correspondence is what appears to be a “Facebook” comment on an August 2013 article entitled, “Unearthed drums show higher dioxin levels than previously reported, Okinawa tests show,” where B.S. states, “If they Dig up the Drums at Fort Hunter Liggett and Fort Ord they will find the Same.” An excerpt from an article in the International Business Times states, “It’s been widely reported and documented that many of America’s military bases are toxic. Multiple reports suggest that Agent Orange was stored, used and buried during the war and afterward on U.S. bases everywhere from Guam and Okinawa to Fort Ord in California…” See December 2014 correspondence. Additionally, the Veteran submitted an excerpt from an EPA report on the cleanup of Fort Ord, which he asserts shows the presence of some components of Agent Orange. The Veteran also included an article on the “Chemical description and toxicology” of Agent Orange, which explained that Agent Orange is an approximately 1:1 mixture of two phenoxyl herbicides – 2,4-dichlorophenoxyacetic acid (2-4 D) and 2,4,5-trichlorophenoxyacetic acid (2-4-5 T). The article mentioned that in 1969, it was revealed to the public that the 2-4-5 T was contaminated with a dioxin, TCDD, and that the TCDD was causing many of the previously unexplained adverse health effects which were correlated with Agent Orange exposure. See December 2014 correspondence. In his December 2014 correspondence, the Veteran quotes prior Board decisions that discuss a December 1980 letter from the Department of the Army, Fort Ord, California, noting that the Pest Control Shop at Fort Ord had monthly records dating back to January 1973 of all herbicides used on that installation, and that 2-4-5 T and 2-4 D usage was included in the records. In VA treatment records dated July 2017 through February 2019, various medical providers noted that the Veteran was a “Type 2 DM-exposed to agent orange” and “type 2 DM-controlled with insulin-exposed to agent orange.” In April 2019, the Veteran submitted three internet articles in support of his claim. Two of them include a general discussion of Agent Orange and dioxins. The third is a 2009 article entitled “Neighborhood Cleanup: Threats to Human Health from Hazardous Waste at the former Fort Ord,” which notes that Fort Ord was listed on the United States’ National Priorities List in 1994 due to being one of the most contaminated areas in the country. The article states that contaminated groundwater exists under the air field, the landfill, a former sewage treatment plant, and a former waste disposal site, and lists dioxin in a table of “Chemicals of Concern at Fort Ord and Associated Health Effects.” During a June 2019 VA male reproductive system examination, the Veteran indicated to the examiner, Dr. K.O., that he had been an undiagnosed diabetic for many years. In an email response dated June 2019, a representative from EPA indicated that “EPA’s project manager for Ft. Ord has reviewed records from the response action that we are overseeing with the US Army, and we have no records regarding the use of Agent Orange or other related fungicides, herbicides or biologic materials.” The EPA representative further stated that while the field sampling does not confirm the Veteran’s claims, “EPA’s role is not to conduct exhaustive histories of any site. Rather, EPA’s role is to plan for and respond to site conditions as identified through sampling.” In a response received July 2019, DPRIS indicated that it was “unable to locate 1969 unit records submitted by Co D, 41st Inf. Therefore, we are unable to document or verify [the Veteran] was exposed to Agent Orange or tactical herbicides at Fort Ord. However, inquiries concerning possible exposure to herbicides/pesticides on DOD Military Facilities may be referred to the Armed Forces Pest Management Board…” In a letter received July 2019, the Armed Forces Pest Management Board (AFPMB) stated that it was unable to identify a location for “Co D 41st Inf CD ASACDCEC” and that AFPMB is not a repository of unit records, so it cannot verify the nature of the work performed by the Veteran’s unit. In an email included in the body of the July 2019 VA examination report, but found nowhere else in the record, E.H., Director of AFPMB, stated, “[b]ased on our record review, AO wasn’t tested, used or stored at any site in CA.” Dr. K.O., the VA examiner, indicated that he obtained the response from AFPMB with help from his colleagues. Upon review, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran was exposed to herbicide agents during active service. The Board finds the Veteran’s lay reports of his exposures to herbicide agents to be competent, credible, and highly probative. The Veteran is certainly competent to describe the nature of the work he performed, the events he observed, and the experiences he had while in the military. See Layno, 6 Vet. App. at 470 (a Veteran is competent to report on that of which he or she has personal knowledge). Although his military personnel records do not reflect that the Veteran worked as a supply clerk, do not show a secondary MOS of 76-Y, and do not show orders to attend supply school at Fort Lewis, the Board has no reason to doubt the Veteran’s credibility. Indeed, the Veteran has consistently averred in lay statements submitted in this appeal and in statements made to medical professionals that during his service, he worked in the supply room and handled clothing and equipment returning from Vietnam. See Veteran’s statements received October 2000 through September 2019; September 2000 VA phone call record; December 2007 VA treatment record; September 2008 VA treatment record. In addition, the Veteran’s reports of his exposure to Agent Orange are internally consistent and are corroborated by the similar reports of other veterans. For instance, in a May 2006 statement as part of his claim, a veteran asserted that his prostate and colon cancers were also caused by exposure to herbicides at HLMR when, as a member of a Combat Experimental Regiment, he was sprayed with herbicides. Another veteran similarly asserted he developed diabetes due to exposure to herbicides or Agent Orange while serving stateside, particularly at Fort Ord in 1972. Additionally, in an article entitled “Calling Viet Nam Vets, RE: Agent Orange!” a veteran, P., indicated that he had diabetes and that while stationed at Fort Ord in 1968, he noticed a “funky” smell which one of the recruits mentioned to a drill instructor, who told the recruits “to get used to that smell because it was agent orange.” The Board finds that the similarities with other veteran’s reports of their exposure to herbicide agents at Fort Ord and HLMR lends at least some credibility to the Veteran’s reports of same. See December 2014 correspondence. However, the Board acknowledges that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Significantly, in this matter, there is additional competent, credible, and probative evidence of herbicide agent exposure at HLMR and Fort Ord provided by medical professionals, individuals with personal knowledge of the experiments that took place, and the Department of the Army. For instance, when the Veteran reported to sick call during service for skin rashes, open sores, and bleeding scabby skin issues, he asserts the medical personnel who treated him told him that he had been sprayed with Agent Orange. See December 2014 correspondence. While there are no sick call records in the Veteran’s STRs (his Chronological Record of Medical Care is blank), the Board nonetheless finds that the Veteran experienced skin issues in service since he endorsed skin diseases and boils in a December 1970 report of medical history. The Veteran is also competent to relate what he has been told by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, in a September 2008 Agent Orange Registry examination report, Dr. C.C. stated without equivocation, “[t]his 59 year old Army veteran was exposed to Agent Orange between 1969 and 1970.” Dr. C.C. noted the Veteran’s “unusual” exposure history in that he never served in Vietnam, but instead was exposed indirectly by handling equipment returning from Vietnam. Dr. C.C. further noted that the Veteran had a rash with pruritic, scaly maculopapular lesions that appear periodically on his legs, chest, arms, and back, for which he had been evaluated and treated numerous times by primary care physicians and dermatologists. Dr. C.C. mentioned that the Veteran had no family history of diabetes. The Veteran asserts that Dr. C.C. informed him that his “rapid high and low blood sugar flares along with the other issues with skin rashes, itching and other symptoms could only be explained by AO exposure” and that his set of symptoms were “unique to AO herbicide exposure and that there was no other explanation that fit.” See December 2014 NOD; see also Veteran’s statements received February 2015 and September 2019. As previously noted, the Veteran is competent to relate what he has been told by a medical professional. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). Moreover, the Board finds credible the Veteran’s assertions of what he was told by Dr. C.C. as his statements are otherwise consistent with what Dr. C.C. wrote in the September 2008 examination report. The Board finds the September 2008 examination report highly probative as it was authored by a physician who considered the Veteran’s lay reports of exposure to herbicides, noted the Veteran’s ongoing blood pressure and skin issues, acknowledged the Veteran’s lack of family history of diabetes, and unequivocally stated that the Veteran was exposed to Agent Orange between 1969 and 1970. Also, in VA treatment records dated July 2017 through February 2019, various medical providers seemed to echo Dr. C.C.’s findings, noting that the Veteran was a “Type 2 DM-exposed to agent orange” and “type 2 DM-controlled with insulin-exposed to agent orange.” The Board therefore affords great probative value to Dr. C.C.’s September 2008 Agent Orange Registry examination report and statements to the Veteran. Further, the Veteran reports that his exposure to Agent Orange was confirmed by a conversation he had with the pilot assigned to spray it and that he learned from conversations with those conducting the experiments that various agents and compounds were being added to Agent Orange in different concentrations to determine the effects. See Veteran’s statements received December 2014, April 2019, and September 2019. The Board finds that these individuals were competent to relate such information to the Veteran as they had personal knowledge of the experiments and what was being sprayed. See Layno, 6 Vet. App. at 470. Also, the Board has no reason to doubt their credibility given the purpose of CDEC as an experimental regiment, HLMR being an ideal testing facility due to its size, isolation, unencumbered airspace, and undeveloped terrain, and, according to online sources and witnesses, defensive bio-chem warfare technology was tested there. See July 2014 correspondence. Therefore, the Board affords great probative value to the aforementioned statements. In addition, the Board finds highly probative the December 1980 Department of the Army letter indicating that the Pest Control Shop at Fort Ord had monthly records dating back to January 1973 of all herbicides used on that installation, and that 2-4-5 T and 2-4 D usage was shown in the records. While the Veteran served at Fort Ord from 1969 to 1971, and the letter notes that the herbicide usage records only date back to 1973, this evidence at the very least tends to support the claim overall because it is conclusive evidence that the components of Agent Orange (2-4-5 T and 2-4 D) were used at Fort Ord in close temporal proximity to when the Veteran served there. The Board finds that the responses from JSRRC, DPRIS, AFPMB, and EPA are in no way dispositive of the issue of whether the Veteran was exposed to Agent Orange during service; they simply indicate that they were unable to verify the Veteran’s exposure to Agent Orange rather than providing definitive evidence that he was not exposed. Even still, the evidence need only be in equipoise. Under the specific circumstances of this case, the Board determines that the evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during active service. This determination is limited to this specific Veteran, based on the evidence presented. Having so determined, the Board need not address the Veteran’s claimed exposure to asbestos, bacteria, or fungus during active service. For the sake of completeness, the Board acknowledges that there are two negative nexus opinions of record regarding the etiology of the Veteran’s diabetes. However, both opinions are inadequate, and the Board affords them no probative value. In its August 2017 decision, the Court determined that the August 2014 examination report on the etiology of the Veteran’s diabetes was inadequate because it was equivocal, incomplete, contained factual findings that should have been made by an adjudicator instead of a medical expert, and the examiner based her findings on information that was not contained in the record. The Court specifically found fault with the examiner’s failure to explain what the Veteran’s limited, indirect family history of diabetes (that being his maternal aunt) suggests about the etiology of his diabetes mellitus, and what the Veteran’s current body mass index, food intake, and exercise habits reveal about the nature and etiology of his diabetes. These findings constitute the law of the case. See DiCarlo v. Nicholson, 20 Vet. App. 52, 57 (2006). In June 2019, the Veteran was afforded a new VA examination to determine the etiology of his diabetes. In July 2019, after a review of the Veteran’s claims file, the examiner, Dr. K.O., opined that the Veteran’s diabetes was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Dr. K.O. included the following rationale in his report: “As [the Veteran] was and is morbidly obese and does have a family history of DM, I do opine that these were the causative factors in his getting DM.” Dr. K.O. also mentioned that the Veteran “left Ft. ORD in late 1/1971 and the studies that were quoted regarding Ft. Ord (after the Superfund clean up) were done in 2015, so it is quite possible that the soil was contaminated after 2/1971 as local farmers use herbicides with one of the two components that make up AO.” The July 2019 VA examination report and medical opinion contain the same errors identified by the Court in its August 2017 decision. Notably, Dr. K.O. failed to explain what the Veteran’s limited, indirect family history of diabetes and what his current obesity suggests about the etiology of his diabetes, he made factual findings that should have been made by an adjudicator instead of a medical expert, and based his findings on information that is not contained in the record (i.e., “it is quite possible that the soil was contaminated after 2/1971 as local farmers use herbicides with one of the two components that make up AO”). Therefore, the Board finds the July 2019 examination report and medical opinion inadequate and affords them no probative weight. As the Veteran is currently diagnosed with diabetes and the evidence is at least in equipoise as to whether he was exposed to herbicide agents during service, entitlement to service connection for diabetes is warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.