Citation Nr: 19167717 Decision Date: 09/04/19 Archive Date: 09/03/19 DOCKET NO. 16-32 360 DATE: September 4, 2019 ISSUES 1. Entitlement to service connection for a lung disability (also claimed as breathing problems), to include as due to asbestos exposure. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. REMANDED Entitlement to service connection for a lung disability (also claimed as breathing problems), to include as due to asbestos exposure is remanded. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran had active service in the Air Force from January 1966 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for a lung disability (also claimed as breathing problems), to include as due to asbestos exposure is remanded. The Veteran claims that his current lung disability (also claimed as breathing problems) is due to his exposure to asbestos during service. To begin, it is unclear if the Veteran has a current diagnosis of a lung disability. VA medical records from July 2019 indicate that the Veteran has a recent history of chronic obstructive lung disease (also referred to as chronic obstructive pulmonary disease) (COPD). A similar medical addendum notes that the Veteran “has COPD/emphysema and has stopped smoking 6 [months] ago.” A medical note from April 2019 however writes “COPD/asthma, [history of] exposure to asbestos at work per patient, unremarkable CXR, normal PFT … on Advair and Spiriva from non-VA [prescription].” Thus, it is unclear if the Veteran has a current diagnosis of a lung disability, to include COPD, or if that is only part of his medical history. Therefore, upon remand, a VA examiner is asked to confirm the current diagnosis of a lung disability. The Veteran’s exposure to asbestos has not been confirmed. The Veteran has also not provided any correspondence or lay statements to indicate how he may have been exposed to asbestos. The Veteran’s service treatment records and military personnel records are silent as to any exposure to asbestos or related products. Having said that, the Board recognizes that the Veteran served honorably in the Air Force for over twenty-five years. Furthermore, the Veteran’s military occupational specialty (MOS) lists that he was an electric power production technician for over twenty-two years, and an aircraft structural maintenance technician for two years beyond that. Each of these professions arguably fits within the designated list of occupations that have higher incidents of asbestos exposure, as they broadly involve “construction, manufacture and servicing … and military equipment.” See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (d). Therefore, affording the Veteran the benefit of the doubt, and in consideration of the VA’s Duty to Assist in developing the Veteran’s claim, this claim must be remanded to the RO for additional development. 38 C.F.R. § 3.159. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran contends that his claimed diabetes mellitus was due to his military service. Service connection can also be established on a presumptive basis for certain diseases associated with in-service exposure to toxic herbicides. See 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Diabetes mellitus type II is one such disease. 38 C.F.R. § 3.309 (e). Having noted that however, it is unclear if the Veteran has a current diagnosis of diabetes mellitus. Medical evidence from the Veteran’s claims file reaches opposite conclusions regarding his claimed current diagnosis. An optometry note from December 2018 indicates that the Veteran is not diabetic. A medical screening from April 2019 also states that “patient is not a diabetic.” An ophthalmology note from May 2019 indicates that the Veteran is indeed diabetic, yet a pre-surgical screening from July 18, 2019 denies diabetes. A nursing note eight days later however confirms that “patient is a diabetic.” Finally, a follow-up ophthalmology note from July 30, 2019 indicates that the Veteran is not diabetic. Therefore, it is unclear if the Veteran has a current diagnosis of diabetes mellitus, and a VA examination is required to confirm or deny such diagnosis. The Board also notes that the Veteran is claiming “exposure to agent orange while stationed at Korat Royal [Thai] Air Force Base.” The Veteran does not contend to have served within the Republic of Vietnam. His military personnel records confirm that the Veteran served in Don Muang Royal Thai Air Force Base RTAFB from approximately April 1968 to January 1969. The Veteran’s service treatment records also contain a medical dispensary stamp from Korat RTAFB in April 1969. Both of these RTAFBs are recognized by the M21 manual as those which used herbicide agents on the fenced-in perimeters of military bases. See further, M21-1, Part IV., Subpart ii., Chapter 1., Section H, 5 (b). While both of those Air Force bases are recognized, it must also be factually determined whether or not the Veteran served at these bases as an air force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by the Veteran’s military occupational specialty (MOS), performance evaluations, or other credible evidence. M21-1, Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b. Therefore, if the VA examination confirms that the Veteran has a current diagnosis of diabetes mellitus, then the RO must develop and make a finding as to whether it is as likely as not that the case that the Veteran was found to have been exposed, based on the criteria outlined in the M21-1. See, M21-1, Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b. Accordingly, the Veteran is invited to submit competent lay statements and evidence to corroborate his claimed exposure to herbicides, specifically if such evidence details his proximity to the perimeter of the RTAFBs. Because the Veteran’s entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Request additional information from the Veteran regarding the names and locations where he asserts he was exposed to asbestos during service. Take appropriate action to verify the Veteran’s claimed in-service asbestos exposure. If the claimed asbestos exposure cannot be verified, a written statement to that effect should be prepared and incorporated into the record. 2. Obtain any relevant and outstanding VA treatment records. Should they exist, associate them with the electronic claims file. 3. If, and only if, the Veteran’s claimed in-service exposure to asbestos can be adequately developed, schedule the Veteran for a VA examination with an appropriate clinician, to provide an opinion regarding the etiology of the claimed lung disability, to include as due to the Veteran’s asserted exposure to asbestos. The examiner must note that the claims file was reviewed, and that the lay statements of the Veteran were addressed. 4. After reviewing the claims, the examiner should opine as to the following: (a.) Does the Veteran have a current lung disability, to include chronic obstructive lung disease, and/or any other lung disability? (b.) If the Veteran has a current lung disability, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s lung disability is related to his active duty service, to include his asserted exposure to asbestos in service? For any/all disabilities, note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay statement must be considered and weighed in making the determination as to whether a nexus exists between service and the currently disabilities. To that end, in rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran’s assertions of in-service occurrences. Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Following completion of the above directives, regardless of whether or not the Veteran’s exposure of asbestos was developed and/or verified, arrange for the Veteran’s electronic claims file, including a copy of this remand, to be reviewed by a VA examiner for the purpose of preparing an addendum. The examiner must note that the claims file and this remand have been reviewed. If it is determined that another examination is needed to provide the required diagnosis, the Veteran must be afforded the appropriate VA examination. The examiner is asked to clarify whether or not the Veteran has a current diagnosis of diabetes mellitus. 6. If, and only if, the VA examination confirms that the Veteran has a current diagnosis of diabetes mellitus, then develop and make a finding as to whether it is as likely as not that the Veteran, based on his MOS, performance evaluations, and/or other credible evidence, was exposed to herbicides, based on the criteria outlined in the M21-1. See, M21-1, Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b. Request additional information from the Veteran to corroborate his claimed exposure to herbicides, specifically if such evidence details his proximity to the perimeter of the RTAFBs 7. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.