Citation Nr: A21019065 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 210817-178729 DATE: November 30, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II due to exposure from Agent Orange (herbicide agents) and/or jet fuel is remanded. Entitlement to service connection for diabetic neuropathy as secondary to diabetes is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1965 to October 1969. The rating decision on appeal was issued in February 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). Although the Board regrets the additional delay, a remand is necessary to ensure that 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. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for diabetes mellitus type II The Veteran contends that his diabetes mellitus is due to exposure to Agent Orange, or in the alternative, exposure to jet fuel. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). Diabetes mellitus is on the list of enumerated diseases. A review of the Veteran's medical records shows a diagnosis of diabetes mellitus type II. See March 2017 records from Mercy Medical Group. The Veteran has met the first element of service connection as he has a current diagnosis relating to the condition on appeal. Turning to the second prong for service connection, whether there is an in-service incurrence, the Board notes that the Veteran stated in a February 2011 phone call to the AOJ that he was exposed to Agent Orange as it was stored and transported from the USS Forrestal during his assignment on the carrier. However, the AOJ did not verify this contention and as such, denied service connection for diabetes mellitus as the Veteran did not have the requisite Vietnam service. Nevertheless, in the October 2021 brief submitted by the Veteran's attorney, another theory of entitlement was raised in that the Veteran was exposed to jet fuel and as a result, developed diabetes mellitus. The Board notes that the Veteran is not precluded from establishing service connection for a disability due to herbicide exposure with proof of direct causation. In Combee v. Brown, the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran stated in his October 2021 statement that there was a catastrophic explosion and fire on the USS Forrestal when he was stationed in the South China Sea in July 1967. He was part of the crew whose mission was to reduce additional risk to the carrier by jettisoning bombs, rockets, and aircraft fuel tanks from burning and damaged aircraft. He stated he had to work in and around the burning aircraft that was producing heavy toxic smoke, being in the fire zone with burning jet fuel and the debris from the burning aircrafts. See October 2021 Statement in Support of Claim. Furthermore, the Board notes that the Veteran's military occupational specialty was an ordinance mechanic. The Veteran's attorney noted that he had to dispose of heavy ordinances, firefighting, removal of aircraft and equipment for several hours until the fire was extinguished. Upon review of the deck logs for the USS Forrestal, the July 1967 fire did take place and is confirmed. See VMBS deck logs, uploaded in February 2021. The reported exposure to jet fuel from the July 1967 fire and the Veteran's duties as an ordinance mechanic is consistent with his service and duties; therefore, the Board finds that the Veteran was exposed to jet fuel during his military service. The Veteran's attorney submitted a private medical opinion from Dr. J.D. in October 2021 as part of the additional evidence submission. The doctor indicated that the Veteran was exposed to Agent Orange via the aircraft aboard the USS Forestall and an additional acute exposure because of the fire and the second exposure was the chronic exposure aboard an aircraft carrier as well as acute exposure to jet fuel byproducts of combustion. He concluded, that taken together, these are sufficient to opine that more likely than not these exposures contributed to the development of not only the Veteran's diabetes, but also contributed individually to the additional complications of neuropathy that the Veteran has experienced. Here, although Dr. J.D. provided a positive medical opinion that linked the Veteran's diabetes mellitus to both Agent Orange and jet fuel collectively, the Veteran's exposure to Agent Orange has not been confirmed. Under the AMA, if the Board identifies a duty to assist error that existed at the time of the AOJ's decision on the claim under review, the claim must be returned for correction of the error and readjudication. 38 C.F.R. § 3.2601(g). A February 2021 Herbicide Exposure Verification Memo indicated that exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters. However, the Board finds that the AOJ committed a pre-decisional duty to assist error when it did not verify that the USS Forrestal stored Agent Orange and that he was exposed to Agent Orange from aircraft that flew over Vietnam and had to land for refueling on the USS Forrestal. As such, the matter must be remanded in order to confirm whether the Veteran was exposed to Agent Orange. Upon remand, the AOJ must make attempts to the VA Military Records Research Center (MRRC) or other appropriate agency for verification of the Veteran's reported in-service exposure to Agent Orange. 2. Entitlement to service connection for diabetic neuropathy as secondary to diabetes The Board finds that the claim for entitlement to service connection for peripheral neuropathy is inextricably intertwined with the claim for service connection for diabetes mellitus. Hence, this issue is not yet ripe for appellate review and must be deferred pending readjudication of the remanded claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The AOJ should make appropriate requests to the MRRC or any other appropriate research agency for verification of the Veteran's reported in-service exposure to herbicide agents, including Agent Orange, to include his assertions that Agent Orange was stored on board the USS Forrestal and that he was exposed to Agent Orange from the aircraft that landed on the USS Forrestal due to the need to refuel, which flew over and around Vietnam and was as a result, was covered in Agent Orange. All requests to the MRRC or any other research agency must be made in accordance with applicable procedures. Any response from the MRRC or applicable agency should be associated with the record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.