Citation Nr: 21070001
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 18-33 961A
DATE: November 22, 2021

REMANDED

Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide and/or toxic exposure, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from October 1965 to October 1969.

In October 2019 the Board denied the issue of entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure.  The Veteran appealed the October 2019 Board decision for this issue to the United States Court of Appeals for Veterans Claims (Court).  On April 30, 2021, a memorandum decision set aside the October 2019 Board decision for this issue and remanded it to the Board.

The Court concluded that the Board should have addressed whether the disposal of toxins at Fishing Point Landfill caused the Veteran's diabetes mellitus, type II.  In light of the April 2021 memorandum decision, 1993 and 2015 buddy statements regarding a toxic spill and clean up at the Naval Air Station Patuxent River (NAS Pax River), and the Veteran's contentions of record including in-service exposure to toxins (other than herbicide agents) while performing duties as a bulldozer operator at Fishing Point Landfill at the NAS Pax River, the Board finds that additional development is needed to determine the etiology of his diagnosed diabetes mellitus, type II, on a direct basis.  See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. §§ 3.159, 3.303 (2020); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The matter is REMANDED for the following actions:

1. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's diabetes mellitus, type II.  The entire claims file and a copy of this remand must be made available to the examiner for review.  An examination (physical or telehealth) is only required if deemed necessary by the examiner.  

For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran was exposed to toxins (other than herbicide agents) while performing his duties as a bulldozer operator at Fishing Point Landfill at the Naval Air Station Patuxent River (NAS Pax River). 

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II (even if since resolved) began during active service or is related to an incident of service, to include consideration of exposure to toxins (other than herbicide agents) while performing his duties as a bulldozer operator at Fishing Point Landfill at the NAS Pax River.

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 

2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided.  If any report or opinion is deficient in any manner, the agency of original jurisdiction (AOJ) must implement corrective procedures.

3. Then, readjudicate the claim.  If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Carter, 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.