Citation Nr: 21001490 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 20-05 760 DATE: January 21, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, (diabetes), to include as due to herbicide exposure is remanded. Entitlement to service connection for an eye disability as secondary to diabetes is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to diabetes is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes is remanded. REASONS FOR REMAND The Veteran served active duty service from April 1977 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902 (c). 38 U.S.C. § 7107 (a)(2). 1. Entitlement to service connection for diabetes due to herbicide exposure is remanded. 2. Entitlement to service connection for an eye disability as secondary to diabetes is remanded. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to diabetes is remanded. 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes is remanded. 6. Entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes is remanded. In January 2020, after the RO’s most recent readjudication of the Veteran’s appeal, but before transferring such to the Board, the Veteran submitted additional evidence in support of her contention that she was exposed to herbicide agent while stationed at Fort McClellan. If, as here, additional evidence is received after the RO furnishes a SOC, and that evidence is pertinent and not duplicative, the RO must furnish a Supplemental Statement of the Case (SSOC) as provided in 38 C.F.R. § 19.31. See 38 C.F.R. §§ 19.31, 19.37. The Board may not consider additional evidence not previously reviewed by the RO, unless a waiver of initial RO review is obtained from the Veteran. Id. Critically, neither the Veteran not her attorney has waived initial review of this evidence. Therefore, a remand is necessary so that the RO may consider this evidence in the first instance. Further, pertinent to the present case, VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (M21-1), directs that a detailed statement of the Veteran's claimed herbicide exposure be sent to the United States Army and Joint Services Records Research Center (JSRRC) for verification. See VBA Fast Letter 09-20 (May 6, 2009). This includes, if necessary, submitting multiple requests to the JSRRC. Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA had failed in fulfilling its duty to assist when VA did not submit multiple requests to the JSRRC). Accordingly, the mandated requests to the JSRRC for verification of the Veteran's reported herbicide exposure must be undertaken. Finally, while the record unambiguously reflects a diagnosis of diabetes mellitus, type II, the nature of the Veteran’s other claimed disabilities is tenuous. Specifically, several eye disabilities other than diabetic retinopathy have been diagnosed, and while a diagnosis of peripheral neuropathy has not been rendered, the Veteran’s reported symptoms may be due to peripheral vascular disease, which has been identified. Accordingly, VA’s low threshold to provide the Veteran a VA examination to determine the nature and etiology of her claimed disabilities has been triggered. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4); see also, generally, McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, to ensure completeness of the file for the examiner(s) to review and consider when providing the requested medical opinions, the Veteran should be contacted and requested to identify all outstanding VA and private treatment records pertinent to the issues remanded, herein. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associated with the file all updated records of VA treatment pertinent to the Veteran. 2. The AOJ must contact the Veteran and request that she complete a release for any post-service treatment records that are outstanding and pertinent to the issues subject to this remand. In these releases, the Veteran should provide a time period in which she was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. The AOJ must make appropriate requests to the JSRRC for verification of the Veteran's reported herbicide agent exposure in accordance with the M21-1. M21-1, Part IV, Subpart ii, Chapter 1, Section H.7.a. *This includes, if necessary, submitting multiple requests to the JSRRC. Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA had failed in fulfilling its duty to assist when VA did not submit multiple requests to the JSRRC). All documentation sent and received by the agency of original jurisdiction (AOJ) must be associated with the claims file. 4. Thereafter, the AOJ must provide the Veteran appropriate VA examinations to determine the nature and etiology of her claimed diabetes mellitus, type II, peripheral neuropathy, and eye disabilities. The examiners are requested to review all pertinent records associated with the file, including the Veteran's service treatment records and his lay statements. After of review of the complete record, an interview with and examination of the Veteran, and the completion of any necessary testing, the examiners must address the following: a. Confirm a diagnosis of diabetes mellitus, type II, during the appeal period (since January 2017). b. Identify all eye disabilities present during the appeal period (since January 2017). c. Identify or rule out peripheral neuropathy affecting either of the Veteran’s arms or legs during the appeal period (since January 2017). d. If peripheral neuropathy affecting any of the Veteran’s arms or legs is ruled out, identify any disability which manifests in tingling, pain, and/or numbness of the arms or legs. *In addressing the above, the examiner must specifically state whether the Veteran’s peripheral vascular disease may account for the symptoms which she attributes to peripheral neuropathy. e. For each disability identified in part a – d, the examiner is requested to provide an opinion concerning whether such is at least as likely as not proximately due to or the result of the Veteran’s active duty, to include in-service exposure to an herbicide agent IF CONFIRMED. *In addressing the above, the examiner is reminded that VA’s exclusion of a disease from the list of those presumed to be caused by in-service herbicide exposure is not dispositive. f. If it is found that diabetes mellitus, type II, is proximately due to or the result of any incident of the Veteran’s service, the examiner is requested to provide opinions concerning whether any disability identified in parts b – d are caused or aggravated for diabetes mellitus, type II. *In addressing the above, the examiner must provide two opinions (separately addressing causation and aggravation) for each disability identified. In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. To this point, the examiner is reminded that lay evidence cannot be discounted because of a lack of contemporary medical evidence within the record. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. Because, by its very nature, a medical opinion is just that, an opinion rather than a statement of certainty, the Board recognizes that conjecture, tempered by the examiner’s medical expertise and experience, is a component of a medical opinion. If the examiner cannot provide any requested opinion without resorting to mere speculation, such should be stated along with a complete explanation for that conclusion. 5. Thereafter, the AOJ must readjudicate the issues on appeal in light of all evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and her representative a copy of the readjudication and afford them an appropriate time to respond. . SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.