Citation Nr: 21004717 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-54 756 DATE: January 28, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type 2, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty service in the United States Army from August 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2021 Board Hearing. Entitlement to service connection for diabetes mellitus, type 2, to include as due to herbicide exposure, is remanded. The Veteran was stationed at Fort Bliss in Texas from February 5, 1967, to August 23, 1968. At his February 2021 Board hearing, he asserted that Fort Bliss was a major staging area for herbicides and that he helped move 55-barrel drums, which he believes contained Agent Orange, to which he in turn believes he was exposed. The Board finds that the RO must take appropriate steps to verify the alleged herbicide exposure asserted by the Veteran at his February 2021 Board Hearing. Therefore, remand is warranted for additional development of the claim, which includes factual development on the alleged herbicide exposure. Moreover, upon remand, and after the herbicide exposure development has been completed, an etiology opinion must be obtained, as an etiology opinion was not provided with the February 2015 VA Diabetes examination of record. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). This opinion is essential where the Veteran asserts that his increase of weight in service by 22 percent was the beginning manifestation of his diabetes. Notably, when the Veteran entered service he weighed 113 pounds, and at separation he weighed 145. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s alleged herbicide exposure while he was stationed at Fort Bliss in Texas from February 5, 1967 to August 23, 1968. At his February 2021 Board hearing, the Veteran asserted that Fort Bliss was a major staging area for herbicides and that he helped move 55-barrel drums, which he believes contained Agent Orange to which he became exposed. • All attempts to verify the herbicide exposure should be recorded and requests and responses received should be associated with the claims file. 2. After completing Step 1, develop the Veteran’s claim for entitlement to service connection for diabetes, accordingly, which includes providing a VA etiology opinion for this claim. With respect to the VA etiology opinion, the opining examiner is to be provided access to all VBMS and Virtual VA/Legacy files. The examiner must specify in the report that these records have been reviewed. Whether an examination of the Veteran is needed to provide an opinion is up to the discretion of the opining examiner. The examiner is asked to opine: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s diabetes mellitus, type 2, BEGAN IN service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s diabetes mellitus, type 2, is otherwise related to his time in the service, yes or no? In answering these questions, the examiner must specifically address and discuss the Veteran’s: i. alleged exposure to Agent Orange and other chemicals during his time stationed at Fort Bliss, Texas. ii. contention that the weight gain he incurred during service was the onset of/or is otherwise related to his current diabetes mellitus, type 2, diagnosis. In connection to this, the examiner must also specifically address and discuss: i. the June 2014 private medical report from Dr. J. L. R., who opined: “[The Veteran’s] weight gain may have been contributed when he was stationed in South Korea [and] may have also contributed to [his] being diagnosed with diabetes.” ii. that at his entrance examination, the Veteran weighed 113 lbs. and at separation from the military, he weighed 145 lbs., as the Veteran is asserting that this “22%” weight gain was excessive and the cause of, or is otherwise related to, his current diabetes mellitus, type 2, diagnosis. • The examiner must be instructed that the term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. • THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). • If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. • If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.