Citation Nr: 20056472 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 13-23 674 DATE: August 26, 2020 REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. REASONS FOR REMAND This matter was most recently before the Board of Veterans’ Appeals (Board) in January 2020, when it was remanded to obtain an expert opinion addressing the question of “whether it is at least as likely as not (50 percent probability or greater) that the Veteran was exposed to herbicide agents during his training at Fort Gordon, Georgia, from May 1968 through June 1968 due to the testing of herbicide agents at the installation in July 1967.” Yet, in January 2020, the Agency of Original Jurisdiction (AOJ) submitted a medical opinion request asking the selected examiner to answer the question “Does the Veteran have a diagnosis of (a) diabetes mellitus, type II that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) exposed to herbicide agents during his training at Fort Gordon, Georgia, from May 1968 through June 1968 during service?” even though the Board’s January 2020 remand directives did not include a request for direct service connection nexus opinion but were rather focused singularly on the material issue of whether the Veteran was exposed to an herbicide agent as defined by 38 C.F.R. § 3.307(a)(6)(i). The Board acknowledges the author of the April 2020 opinion that resulted from the AOJ’s request thoughtfully addressed the question as posed by the AOJ, but he did not explicitly address the question posed by the Board in its January 2020 remand directives. As a result, there has not been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the author of the April 2020 opinion consulted another individual in efforts to provide the most comprehensive opinion possible. While it commends these efforts, the Board notes the author of the April 2020 opinion failed to disclose the credentials, position, or name of the additional individual. The author of the April 2020 opinion also conceded “Dr. WH” no longer considers himself an “Agent Orange expert.” This is problematic because the Court of Appeals for Veterans Claims has held the presumption of competency does not apply when the record establishes irregularity in the selection of an expert who addresses an aspect of a claim, regardless of whether the issue is raised by the claimant. See Wise v. Shinseki, 26 Vet. App. 517 (2014). In sum, the anonymity of the additional individual when combined with the concession that this individual no longer considers himself an expert in the relevant field makes it difficult for the Board to assess the probative value of his statements, which appear to suggest that the Veteran may have been exposed to an herbicide agent as defined by 38 C.F.R. § 3.307(a)(6)(i) due to residuals of testing that occurred prior to his arrival at Fort Gordon, Georgia, which is ultimately the material issue the Board is seeking to address in the context of the Veteran’s appeal. The matter is REMANDED for the following action: 1. Make reasonable efforts to clarify the identity, position, and credentials of the additional individual (“Dr. WH”) consulted by the author of the April 2020 opinion. 2. Renew efforts to obtain an expert opinion addressing the question of whether it is at least as likely as not (50 percent probability or greater) that the Veteran was exposed to an herbicide agent (specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) during his training at Fort Gordon, Georgia, from May 1968 through June 1968 due to the testing of herbicide agents at the installation in July 1967. The opinion request should focus on the material issue of exposure to an herbicide agent, to include a discussion of whether an herbicide agent or its residuals were still present in the sub-surface of the soil and in the water due to its half-life at the time of the Veteran’s training at Fort Gordon. The expert must provide a comprehensive report including a complete rationale for his or her conclusion, based on his or her experience, expertise, and established medical/scientific principles. If the requested opinion cannot be made without resort to speculation, the expert must state whether the need to speculate is caused by a deficiency in the state of general medical/scientific knowledge (i.e. no one could respond given the current state of medical/scientific knowledge and the known facts) or by a deficiency in the record or the expert (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.