Citation Nr: 21063906 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-41 916 DATE: October 18, 2021 REMANDED Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for Parkinson's disease is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from May 1966 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2019. The matter has returned to the Board for further consideration. For the reasons discussed below, the Board finds there was not substantial compliance with the August 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Although further delay is regrettable, the Board finds a remand is necessary to ensure due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Initially, the Board observes, as to both issues on appeal, the Veteran's service personnel records have not been associated with the claims file. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Accordingly, remand is required to obtain the Veteran's service personnel records. In addition, the record does not show adequate development of the Veteran's claim with respect to the alleged exposure to chemicals and/or toxins. Thus, the Board finds remand is warranted to verify, to the extent possible, whether the Veteran was exposed to chemicals and/or toxins during his Naval service. In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports regarding onset of his type II diabetes mellitus and Parkinson's disease. 1. Entitlement to service connection for type II diabetes mellitus is remanded. The Veteran contends his type II diabetes mellitus is related to military service. Specifically, he contends during his Naval service, he was exposed to electromagnetic radiation (EMR)/radio frequency non-ionization, as well as chemicals and/or toxins. See September 2013, December 2013, and October 2014 Correspondence, and July 2019 Informal Hearing Presentation. In its May 2013 rating decision, the Agency of Original Jurisdiction (AOJ) made a favorable finding that the Veteran has a current diagnosis of type II diabetes mellitus. The Board is bound by this favorable finding, and it is therefore not in dispute. 38 C.F.R. § 3.104(c). In its August 2019 remand, the Board directed the AOJ to obtain a VA examination and medical opinion as to whether the Veteran's type II diabetes mellitus had its onset during, or is causally related to, the Veteran's military service, to include any exposure to electromagnetic radiation associated with his duties as a communications technician (radio operator) in the United States Navy. The Board directed the examiner to review the treatises provided by the Veteran, and to comment on them as necessary. Pursuant to the Board's August 2019 remand, a Logistic Health Incorporated (LHI) Diabetes Mellitus examination was conducted in January 2020. The LHI examiner provided a negative nexus opinion stating the Veteran does not have a diagnosis of diabetes mellitus, therefore it is less likely than not caused by electromagnetic radiation exposure during service. See January 2020 LHI examination report. The Board cannot make a fully informed decision on the issue of entitlement to service connection for type II diabetes mellitus because of the inadequate LHI examination, which did not consider all relevant evidence of record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The January 2020 LHI examination reflects a less than thorough review of the evidence. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner indicated she reviewed the Veteran's claims file, to include treatment records. These records address a diagnosis of, and treatment for, type II diabetes mellitus. See also September 2012 Diabetes Mellitus Disability Benefits Questionnaire. However, the examiner did not explain why the diagnosis reflected in the treatment records was not appropriate. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure such exam is an adequate one. Id. 2. Entitlement to service connection for Parkinson's disease is remanded. The Veteran contends his Parkinson's disease is related to military service. Specifically, he contends during his Naval service, he was exposed to electromagnetic radiation (EMR)/radio frequency non-ionization, as well as chemicals and/or toxins. See September 2013, December 2013, and October 2014 Correspondence, and July 2019 Informal Hearing Presentation. In its May 2013 rating decision, the AOJ made a favorable finding that the Veteran has a current diagnosis of Parkinson's disease. The Board is bound by this favorable finding, and it is therefore not in dispute. 38 C.F.R. § 3.104(c). In its August 2019 remand, the Board directed the AOJ to obtain a VA examination and medical opinion as to whether the Veteran's Parkinson's disease had its onset during, or is causally related to, the Veteran's military service, to include any exposure to electromagnetic radiation associated with his duties as a communications technician (radio operator) in the United States Navy. The Board directed the examiner to review the treatises provided by the Veteran, and to comment on them as necessary. Pursuant to the Board's August 2019 remand, a LHI Parkinson's Disease examination was conducted in January 2020. The LHI examiner provided a negative nexus opinion stating, in part, according to the Parkinson's Foundation, electromagnetic radiation exposure is not a risk factor for Parkinson's disease. As rationale, the examiner noted several "Environmental Risk Factors" associated with Parkinson's disease: (1) Occupational Categories or Job Titles; (2) Pesticide and Herbicide Exposure; (3) Occupational Exposure to Metals; and (4) Exposure to Solvents and Polychlorinated Biphenyls (PCBs) exposure. See January 2020 LHI examination report. The Board finds the January 2020 opinion to be inadequate for decision-making purposes. The opinion is inadequate because it does not address the specific facts of the Veteran's case but relied only on general literature. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). Therefore, a remand for an addendum opinion, which addresses all the relevant evidence of record with an adequate supporting rationale, is necessary prior to rendering a decision on appeal. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The matters are REMANDED for the following action: 1. Obtain the Veteran's service personnel records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist, or that further attempts to obtain them would be futile. Required notice must be provided to the Veteran and his representative. 2. The AOJ must attempt to verify the Veteran's purported exposure to chemicals and/or toxins during his Naval service. Such should include seeking information as to whether the Veteran's military occupational specialty (Communications Technician), and assignments or living situations (i.e., USS Belmont (AGTR4)) involved being in the vicinity of or working with or near chemicals and/or toxins. In particular, the AOJ should contact the appropriate records repository(ies) to request verification of the presence of all chemicals/and or toxins known or suspected to have been present at the Veteran's various assignments and living situations. Specific information regarding the extent and nature of any contamination, sites of contamination in relationship to the Veteran's military assignments or living situations, and the likelihood of exposure to the Veteran would be beneficial in deciding the claim on appeal. All requests and responses MUST be associated with the claims file. If the search for corroborating information and/or records leads to negative results, the AOJ MUST notify the Veteran and his representative and afford them the opportunity to respond. If there is still insufficient information to verify exposure, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the alleged in-service exposures. 3. After the above is completed, return the record to an examiner other than the clinician who conducted the January 2020 diabetes mellitus examination to determine the nature and etiology of the Veteran's type II diabetes mellitus. The Veteran's claims file and a copy of this Remand should be provided to the examiner and the examination report should reflect that these items were reviewed. Following a review of the entire record, the examiner is asked to provide an opinion as to the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's type II diabetes mellitus was incurred in, caused by, or etiologically related to his service, to include any exposure to electromagnetic radiation. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's type II diabetes mellitus was incurred in, caused by, or etiologically related to his service, to include exposure to chemicals and/or toxins. (c.) The examiner should state whether the Veteran's type II diabetes mellitus manifested within one year of the Veteran's service separation in January 1970. Note (1): The examiner must not solely rely on the lack of in-service documentation of type II diabetes mellitus. The examiner is asked to consider and discuss the likelihood the Veteran's type II diabetes mellitus is related to his service, given the particulars of this Veteran's medical history, family history, and the absence or presence of other risk factors, etc. Note (2): In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding exposure to electromagnetic radiation associated with his duties as a Communications Technician. (See September 2013, December 2013, and December 2019 Correspondence.) Note (3): In providing the requested opinion, the examiner must consider and discuss the pertinent articles regarding exposure to electromagnetic radiation. (See December 2013 and October 2014 Correspondence.) Note (4): In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding exposure to chemicals and/or toxins associated with his duties as a Communications Technician. (See December 2013 Correspondence: TCE was used to clean electronic components; cleaning and degreasing of airplanes, metal parts, weapons, and vehicles.) Note (5): In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding exposure to chemicals and/or toxins associated with his assignments and living situations. A complete rationale for the opinion must be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After the above is completed, return the record to an examiner other than the clinician who conducted the January 2020 Parkinson's disease examination to determine the nature and etiology of the Veteran's Parkinson's disease. The Veteran's claims file and a copy of this Remand should be provided to the examiner and the examination report should reflect that these items were reviewed. Following a review of the entire record, the examiner is asked to provide an opinion as to the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's Parkinson's disease was incurred in, caused by, or etiologically related to his service, to include any exposure to electromagnetic radiation. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's Parkinson's disease was incurred in, caused by, or etiologically related to his service, to include any exposure to chemicals and/or toxins. (c.) The examiner should state whether the Veteran's Parkinson's disease manifested within one year of the Veteran's service separation in January 1970. Note (1): In providing the requested opinion, the examiner must not solely rely on the lack of in-service documentation of Parkinson's disease. The examiner is asked to consider and discuss the likelihood the Veteran's Parkinson's disease is related to his service, given the particulars of this Veteran's medical history, family history, and the absence or presence of other risk factors, etc. Note (2): In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding exposure to chemicals and/or toxins associated with his duties as a Communications Technician. (See December 2013 Correspondence: TCE was used to clean electronic components; cleaning and degreasing of airplanes, metal parts, weapons, and vehicles.) Note (3): In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding exposure to chemicals and/or toxins associated with his assignments and living situations. Note (5): In providing the requested opinion, the examiner must consider and discuss the particularized circumstances of the Veteran: The Veteran's occupational title (Communications Technician), and the incidence of Parkinson's disease. (See January 2020 LHI examination report: "Environmental Risk Factors: Occupation: Certain occupational categories or job titles have been associated with a higher incidence of Parkinson's disease.") The Veteran's increased risk of occupational exposure to various metals as a Communications Technician. (See January 2020 LHI examination report: "Environmental Risk Factors: Exposure to Metals: Occupational exposures to various metals have been suggested to be related to the development of Parkinson's disease.") The Veteran's MOS of Communications Technician, assignments and living situations, to include the handling of, and exposure to, various chemicals and/or toxins. (See January 2020 LHI examination report: "Environmental Risk Factors: Solvents and Polychlorinated Biphenyls (PCBs).") Note (6): In providing the requested opinion, the examiner must consider and discuss the January 2019 post-service treatment records indicating a diagnosis of Parkinson's disease as early as the 1990's and the Veteran's history that his Parkinson symptoms began years earlier. See December 2013 Correspondence. A complete rationale for the opinion must be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. (Continued on the next page) 5. The AOJ must review the addendum opinions to ensure compliance with the Remand directives. If the addendum reports are deficient in any manner, take corrective action prior to returning the case to the Board. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.