Citation Nr: 21001495 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 15-16 036 DATE: January 8, 2021 REMANDED Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to herbicide exposure and/or diabetes mellitus, is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to herbicide exposure and/or diabetes mellitus, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to herbicide exposure and/or diabetes mellitus, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to herbicide exposure and/or diabetes mellitus, is remanded. Entitlement to service connection for a cardiac disability, to include as due to herbicide exposure, is remanded. Entitlement to service connection for lung cancer, to include as due to herbicide exposure and/or a kidney disability, is remanded. Entitlement to service connection for a kidney disability, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran had active service from February 1961 to February 1965 and from November 1965 to November 1969. He died in August 2018, and the appellant is his surviving spouse. The appellant has been determined to be a proper substitute as claimant as reflected in an August 2019 notice letter. These matters come before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was initially before the Board in February 2017. In February 2017, the Board reopened the claim for entitlement to service connection for diabetes mellitus and remanded the claim on the merits for further development. In February 2017 the Board also remanded the claims for entitlement to service connection for peripheral neuropathy of all four extremities, a cardiac disability, lung cancer, and a kidney disability for further development. They now return for appellate review. As a March 2018 VA examiner endorsed multiple cardiac diagnoses, the Board has recharacterized the claim for coronary artery disease as a claim for service connection for any cardiac disability, however diagnosed. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Similarly, the Board has recharacterized the claim for service connection for lung cancer, to reflect consideration of service connection as secondary to a kidney disorder, as a March 2018 VA examiner raised this theory of entitlement. 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is remanded. 2. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to herbicide exposure and/or diabetes mellitus, is remanded. 3. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to herbicide exposure and/or diabetes mellitus, is remanded. 4. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to herbicide exposure and/or diabetes mellitus, is remanded. 5. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to herbicide exposure and/or diabetes mellitus, is remanded. 6. Entitlement to service connection for a cardiac disability, to include as due to herbicide exposure, is remanded. 7. Entitlement to service connection for lung cancer, to include as due to herbicide exposure and/or a kidney disability, is remanded. 8. Entitlement to service connection for a kidney disability, to include as due to herbicide exposure, is remanded. In a February 2017 remand, the Board, in pertinent part, instructed the Agency of Original Jurisdiction (AOJ) perform any necessary development, including contacting the Joint Services Records Research Center (JSRRC) and any other appropriate agency in an attempt to ascertain whether it was as likely as not that the Veteran served near the perimeter of the Takhli Royal Thai Air Force Base (RTAFB) while refueling aircraft and was potentially exposed to an herbicide agent from December 1966 to October 1967 or whether it was as likely as not that the Veteran had repeated and regular contact with C-123 aircraft through flight, ground, or medical duties at Lockbourne Air Force Base (AFB) when he served there from October 1967 to November 1969. In December 2017, the JSRRC responded they researched the U.S. Air Force Station Listings and unit histories, from December 1966 through March 1967, submitted by the 4252nd Strategic Wing (SW), the higher headquarters for Detachment 1 (Det 1), 4252nd SW, stationed at Takhli RTAFB. The December 2017 JSRRC response also explained they researched the unit histories, from November 1966 through February 1967, for the 4258th SW, the higher headquarters for Det 1, 4258th SW, stationed at Takhli RTAFB. However, the JSRRC stated research of the historical documentation found that Det 1, 4252nd Strategic Wing was redesignated as Det 1, 4258th Strategic Wing on January 1, 1967, and, unfortunately, the unit history was negative, and did not report on the location of the flight line or refueling operations at Takhli RTAFB, and did not document the proximity of refueling operations in relation to the perimeter of Takhli RTAFB. The JSRRC further stated that the historical documentation also did not discuss the Veteran or the daily duty assignments of unit personnel, or if their daily duties would have exposed these military members to tactical herbicides, or placed them near the perimeter of Takhli RTAFB during the specified time period. The JSRRC also stated the 4258th SW and 4252nd SW unit histories did not report on herbicide use at Takhli RTAFB during the November 1966 through March 1967 time frame. However, the JSRRC response does not cover the entire relevant period directive by the Board. Specifically, the JSRRC discussed the period from November 1966 through March 1967; however, the relevant period, as directive by the February 2017 Board remand, is from December 1966 to October 1967, thus the period from April 1967 to October 1967 was not addressed. Similarly, in June 2018 and September 2018, the JSRRC also responded they researched the October 1967 through December 1967 and the January 1968 through June 1968 unit histories, respectively, submitted by the 301st Air Refueling Wing (ARW), the higher headquarters for the 301st Organizational Maintenance Squadron (OMS), stationed at Lockbourne AFB, Ohio. However, unfortunately, the JSRRC explained the unit histories did not document that C-123 aircraft were located at Lockbourne AFB during the October 1967 through December 1967 or the January 1968 through June 1968 time periods. The JSRRC also explained the histories also did not document that OMS unit personnel worked on or near C-123 aircraft at Lockbourne AFB during the specified time period. However, these JSRRC responses do not cover the entire relevant period directive by the Board. Specifically, the JSRRC discussed the period from October 1967 through June 1968; however, the relevant period, as directive by the February 2017 Board remand, is from October 1967 to November 1969, thus the period from July 1968 to November 1969 was not addressed. Thus, although the Board regrets the additional delay, because there was not substantial compliance with the prior Board remand directives, another remand is necessary for all the appeal issues, in order to attempt to verify the Veteran’s exposure to herbicides, with multiple requests in 60 day increments to the JSRRC for the relevant periods, in order to determine any exposure to herbicidal agents. See Stegall v. West, 11 Vet. App. 268 (1998); Gagne v. McDonald, 27 Vet. App. 397 (2015). In addition, as to the issue of entitlement to service connection for diabetes mellitus, the February 2017 Board remand also directed, in pertinent part, VA nexus opinions be obtained as whether it was it at least as likely as not that the Veteran’s diabetes mellitus was etiologically related to his service or that his diabetes mellitus manifested within a year of his separation from service. However, the resulting March 2018 examination report and opinion are inconsistent as to when the Veteran was diagnosed with diabetes mellitus. Specifically, within the March 2018 examination report itself, the examiner noted the Veteran was diagnosed with diabetes mellitus in the mid-1990s; however, within the rationale of the medical opinion, provided by another clinician, the physician stated diabetes mellitus was not diagnosed until 2005 at age 63, and therefore it was not possible that his diabetes had its inception in service or within one year of separation from service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, in light of this internal inconsistency, an addendum opinion is warranted. The matters are REMANDED for the following actions: 1. Send a request to the JSRRC to attempt to verify the following: (a.) Whether it was as likely as not that the Veteran served near the perimeter of the Takhli Royal Thai RTAFB while refueling aircraft and was potentially exposed to an herbicide agent from April 1967 to October 1967. (b.) Whether it was as likely as not that the Veteran had repeated and regular contact with C-123 aircraft through flight, ground, or medical duties at Lockbourne Air Base when he served there from July 1968 to November 1969. Pursuant to Gagne, sequential 60 day requests are required to cover the relevant service periods. A copy of any requests sent to the JSRRC, and any reply, to include a negative reply, should be associated with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s diabetes mellitus. The clinician is asked to provide a response to the following: (a.) Was it at least as likely as not that the Veteran’s diabetes mellitus was related to an in-service injury, event, or disease? (b.) Was it at least as likely as not that the Veteran’s diabetes mellitus (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c.) Please address the inconsistency between the 2017 VA diabetes examination which found diabetes diagnosed in the mid-1990s and the March 2018 VA medical opinion which indicated diabetes was diagnosed in 2005. Provide a rationale to support the opinions. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the appellant and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.