Citation Nr: 21069503 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-67 595 DATE: November 18, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for left upper extremity neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for right upper extremity neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for benign prostatic hyperplasia, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for diabetic retinopathy, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for left lower extremity neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for right lower extremity neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from November 1963 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Board remanded the claims for additional development. The appeal returned to the Board in October 2020, at which time the Board denied the Veteran's claims. The Veteran appealed the October 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). Pursuant to a June 2021 Joint Motion for Remand (JMR) filed by the parties, the Court vacated the Board's October 2020 decision and remanded the Veteran's claims of entitlement to service connection for diabetes mellitus, type II, left and right upper extremity neuropathy, hypertension, benign prostatic hyperplasia, diabetic retinopathy, left and right lower extremity neuropathy, and entitlement to a TDIU back to the Board for additional development and adjudication consistent with the terms of the JMR. See June 2021 JMR; June 2021 CAVC Order. The appeal has thus returned to the Board. 1. Entitlement to service connection for diabetes mellitus, type II, is remanded. Although the Board regrets further delay, a remand is required to ensure compliance with the terms of the JMR and afford the Veteran every possible consideration. Here, the Veteran asserts that he served in Vietnam and near the demilitarized zone (DMZ) in Korea where he was exposed to Agent Orange, resulting in the diagnosis of diabetes mellitus, type II. He also contends that his other claimed conditions are secondary to his diabetes mellitus, type II. In the October 2020 decision denying service connection for diabetes and all conditions claimed as secondary to that disease, the Board found that the Veteran's statements that he served in Vietnam and/or near the Korean DMZ were not credible, as the available service records were silent for any such service and because the unit to which he was assigned while stationed in Korea "was not one of the units determined by the VA or the Department of Defense to have operated in the Korean DMZ." See October 2020 Board Decision; October 2019 VA Memorandum (finding that the Veteran's presence in Vietnam or the Korean DMZ could not be verified based on a review of his service treatment and personnel records). The June 2021 JMR determined that the Board erred in failing to provide an adequate statement of reasons and bases for this determination. See June 2021 JMR. Although the parties did not provide any further explanation as to why the Board's finding in this regard was inadequate, the JMR did instruct the Board to "assess whether additional development is needed to verify service in either Vietnam or near the Korean DMZ." Id. Notably, the Veteran has not provided any additional information to support his bare assertions that served in Vietnam and the Korean DMZ. However, the Veteran's available service records show that he had foreign service under the overseas command of the United States Army Pacific (USARPAC) in Korea from September 7, 1964 to September 23, 1965. See Enlisted Qualification Record (DD Form 20) (noting that he was assigned to the "22d Sig Det dy/w HHB 7th Msl Bn 2d Arty" during the period from September 1964 to September 1965). In this regard, the Board notes that service connection may be presumed for certain diseases, including type II diabetes mellitus, for veterans who were exposed to an herbicide agent such as that found in "Agent Orange" during active service. See 38 C.F.R. § 3.309(e). Exposure to herbicide agents is presumed for veterans who served in the Republic of Vietnam, during the Vietnam Era (from January 9, 1962 to May 7, 1975) and for veterans who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicide agents are known to have been applied during this period. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Here, the Veteran's overseas service predates the period for which presumptive service connection is available for service in or near the Korean DMZ. Nevertheless, the Veteran has consistently asserted that he served in the Republic of Vietnam while stationed overseas. Although, as noted, his available service records do not reflect that he served in Vietnam during the period from September 1964 to September 1965, in light of the Veteran's assertions, considering the directives of the June 2021 JMR, and to afford the Veteran every possible consideration, the Board finds that remand is warranted for the agency of original jurisdiction to undertake additional procedures to attempt to verify the Veteran's claimed Vietnam service. 2. Entitlement to left upper extremity neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. 3. Entitlement to service connection for right upper extremity neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. 4. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, is remanded. 5. Entitlement to service connection for benign prostatic hyperplasia, to include as secondary to diabetes mellitus, type II, is remanded. 6. Entitlement to service connection for diabetic retinopathy, to include as secondary to diabetes mellitus, type II, is remanded. 7. Entitlement to service connection for left lower extremity neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. 8. Entitlement to service connection for right lower extremity neuropathy, to include as secondary to diabetes mellitus, type II, is remanded. 9. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. As stated in the June 2021 JMR, the remaining claims for service connection for left and right upper extremity neuropathy, hypertension, benign prostatic hyperplasia, diabetic retinopathy, left and right lower extremity neuropathy, and entitlement to a TDIU are inextricably intertwined with the Veteran's claim for service connection for diabetes mellitus, type II. See June 2021 JMR (citing Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (holding that where the underlying facts of two claims are sufficiently intertwined that the claims should be considered together)). Accordingly, these claims are remanded pending adjudication of the Veteran's claim for service connection for diabetes mellitus, type II. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Contact the Veteran and request that he identify any relevant outstanding private treatment records. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. 3. Conduct development to attempt to verify the Veteran's alleged exposure to herbicide agents and/or service in Vietnam during his overseas service from September 1964 to September 1965, to include (a) Contacting any appropriate custodian (i.e., the Joint Services Records Research Center (JSRRC); the National Personnel Records Center (NPRC); the Records Management Center (RMC); the Defense Personnel Records Information Retrieval System (DPRIS); the National Archives and Records Administration (NARA); or any other appropriate entity) and requesting an additional search for service records pertaining to the Veteran, including from alternate sources, as appropriate; (b) Requesting the unit histories of the 22nd Signal Detachment with Headquarters and Headquarters Battery (HHB), 7th Missile Battalion, 2d Artillery (listed in the Veteran's service personnel records as "22d Sig Det dy/w HHB 7th Msl Bn 2d Arty") to determine whether the Veteran served in or traveled to Vietnam during his active service (c) Undertaking any additional action necessary for independent verification of the Veteran's purported exposure to herbicide agents and service in Vietnam during his overseas service from September 1964 to September 1965, to include follow-up action or the submission of additional requests for information to any other appropriate entity. If it is necessary to submit multiple requests spanning 60-day timeframes during the Veteran's service from September 1964 to September 1965, then such requests should be submitted. All records and/or responses received should be associated with the claims file. The non-existence or unavailability of the information and/or records must be verified by each Federal department or agency from which they are sought. Such verification should be documented for the record and the appellant should be provided notice of that fact. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal, including the issue of entitlement to TDIU. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.