Citation Nr: 21062202 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-06 098 DATE: October 6, 2021 REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for depression is remanded. Entitlement to service connection for neuropathy of the lower extremities, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for neuropathy of the upper extremities, to include as secondary to diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1967 to December 1970. In his February 2015 substantive appeal (VA Form 9), the Veteran only appealed the issues of entitlement to service connection for diabetes mellitus, hypertension, depression, and neuropathy of the upper and lower extremities. Thus, the additional issues initially appealed and adjudicated in the statement of the case, of entitlement to service connection for gastroesophageal reflux disease (GERD), prostate and thyroid disabilities, are not before the Board. Furthermore, in his February 2015 VA Form 9, the Veteran also requested a hearing before a Veterans Law Judge. This request was withdrawn in March 2015, prior to any such hearing being held. In August 2020, the Board issued a decision which denied the Veteran's claims of entitlement to service connection for diabetes mellitus, hypertension, depression, and neuropathy of the upper and lower extremities. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Remand (JMR), vacating the Board's decision and remanding the case to the Board. Entitlement to service connection for depression, diabetes mellitus, and for hypertension and neuropathy of the upper and lower extremities to include as secondary to diabetes mellitus, are remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he suffers from diabetes mellitus, hypertension, depression, and neuropathy of the upper and lower extremities as result of his active-duty service. Specifically, the Veteran contends that he was exposed to herbicides while serving in Korea. The Veteran's service treatment records are silent for any complaints, treatment or diagnosis of diabetes mellitus, hypertension, depression, and neuropathy of the upper and lower extremities. However, the Veteran did serve in Korea from February 1968 to March 1969. In addition, post-service treatment records reflect the Veteran's complaints of and/or treatment for diabetes mellitus, hypertension, depression, and neuropathy of the upper and lower extremities. In July 2012, the RO made a formal finding that the Veteran's claimed exposure in service could not be corroborated. However, the Board notes that only the period January 1969 to February 1969 was searched. Therefore, a meaningful search was not conducted and a remand is necessary. On remand the RO must attempt to verify the Veteran's exposure to herbicide agents in service, to include the entire period February 1968 to March 1969. Additionally, the Board notes further development with respect to these claims may be necessary following the completion of the ordered development in regard to the Veteran's herbicide exposure. Furthermore, the Board notes that while VA treatment records for the period from June 2005 to May 2014 are of record, the Veteran has indicated that other records for the period prior to and after are also available. The Veteran has indicated that VA treatment records from as early as 2001 as well as from February 2004 to February 2008 at the Albuquerque VA Medical Center should not only be available but also relevant. Furthermore, he has indicated that he has continued to receive treatment and care and therefore more recent records should also be available. Therefore, on remand, the RO should attempt to obtain and associate all relevant treatment records, to include updated treatment records, with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include records from 2001 and February 2004 to February 2008 from the Albuquerque VAMC. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 3. Verify the Veteran's claimed exposure to herbicide agents in service with the appropriate agency(ies), to the extent possible. The search should include the entire period that the Veteran was stationed in Korea from February 1968 to March 1969. Conduct exhaustive development to obtain the Veteran's complete service personnel records and any other pertinent records from the service department, Department of Defense, or any other relevant source to assist in verifying his allegations of herbicide exposure in service (i.e., that he was exposed to Agent Orange during his service in Korea). Once that development is complete, the AOJ should forward the entire record to the appropriate locations, to include DPRIS, to verify the Veteran's allegations. If the search is limited in the time windows that may be reviewed, it is to conduct as many reviews of consecutive time windows as needed to encompass the entirety of the Veteran's active service (from February 1968 to March 1969). All steps taken and the ultimate findings must be documented in a formal finding. If any records sought are deemed unavailable, the AOJ must document all efforts taken to obtain such records and the reason for their unavailability. The AOJ must also document the findings of its research for the record. 4. If his alleged herbicide exposure is confirmed and/or service connection is awarded for diabetes mellitus, then provide the Veteran with examinations to determine the likely nature and etiology of his claimed hypertension, and neuropathy of the upper and lower extremities. The examiners are asked to opine as to: A) Identify all manifestations of the Veteran's hypertension and neuropathy of the upper and lower extremities. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's hypertension and neuropathy of the upper and lower extremities are related to his service, to include any herbicide exposure therein? (2) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's hypertension and neuropathy of the upper and lower extremities were caused OR aggravated by his diabetes mellitus? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.