Citation Nr: 21072011 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-40 831 DATE: December 2, 2021 REMANDED Entitlement to service connection to type 2 diabetes mellitus, to include as due to exposure to Agent Orange is remanded. Entitlement to service connection for coronary artery disease, to include as due to exposure to Agent Orange is remanded. Entitlement to service connection for hypertension, to include as secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for diabetic retinopathy, to include as secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for lack of blood flow to the left lower extremity, to include as secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for lack of blood flow to the right lower extremity, to include as secondary to type 2 diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from July 1973 to December 1977 with additional training service in the Naval Reserve until 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021 a video conference hearing was held before the undersigned; a transcript is in the record. 1. 2. Entitlement to service connection for type 2 diabetes mellitus and for coronary artery disease, each to include as due to exposure to Agent Orange The Veteran's theory of entitlement for service connection for type 2 diabetes mellitus and coronary artery disease is that they are due to exposure to Agent Orange. The Veteran did not serve in Vietnam (or within the territorial waters of, and/or within 12 nautical miles of Vietnam) during the Vietnam era, and the Veteran is not presumed to have been exposed to Agent Orange in service. He contends that he was exposed to Agent Orange while serving in Guam. He puts forth two theories of entitlement of exposure to Agent Orange while stationed in Guam. The first theory of entitlement is that the Veteran was exposed to Agent Orange/herbicides while on the perimeter of the base and other areas where herbicides were used to clear foliage. The second theory is that he was exposed to Agent Orange while treating refugees transported out of Vietnam. Service personnel records show that the Veteran received a periodic evaluation dated in July 1975 and a transfer evaluation dated January 1, 1976 from his duty station in Illinois. Service treatment records show care at the Great Lakes Naval Hospital in Illinois in February, September, and November 1975. However, in February 2012 correspondence the Veteran stated that in March 1975 he was temporarily stationed in Guam and assisted with the evacuation of refugees out of Vietnam. He stated part of his duties included handling personal affects (clothing and personal items) and providing physical examinations. See February 2012 Correspondence. In March 2012, the Veteran submitted a news article about herbicide use in Guam. In April 2012 the Veteran submitted an April 1987 GAO report on hazardous waste Guam on DOD installations. See April 2012 Third Party Correspondence. A May 2013 Memorandum from the JSRRC Coordinator contained a formal finding of a lack of information required to corroborate herbicide exposure. Notably, the first reply stated that the Veteran reported being in country Vietnam when Saigon fell in 1975. However, such statement is an inaccurate reflection of the Veteran's allegation of exposure to herbicides. The Veteran has alleged he was exposed to Agent Orange while stationed in Guam. See May 2013 VA Memo. In June 2013 the Veteran submitted a news article on the topic of Agent Orange use in Guam. See June 2013 Third Party Correspondence. In an August 2016 electronic message, a Veterans Benefits Administration research office provided a summary of information purportedly obtained from the Department of Defense. The author reported that Guam is not listed by DOD as a location outside of Vietnam or the Korean DMZ where Agent Orange was used and it was not on the shipping route from US ports to Vietnam and that the use of Agent Orange in Vietnam ended in 1971. The email further notes that unless the claim is inherently incredible or clearly lacks legal merit, it should be referred to the JSRRC for any information that may corroborate the Veteran's claimed exposure. At the June 2021 video conference hearing the Veteran testified about each of the above noted theories of exposure. In this case, the Board finds that the Veteran's report of the presence and use of herbicides on base in Guam, and the Veteran's exposure to Agent Orange while handling personal affects and persons evacuated from Vietnam, are not inherently incredible. Accordingly, although JSRRC no longer exists, additional effort to attempt to verify the Veteran's reported exposure to herbicides while in Guam is appropriate. Definitive documents from appropriate Department of Defense, service department or government of Guam sources are necessary to report the presence and use of the designated herbicide agents on Guam from 1975-77. As the Veteran reported service in the Reserve until 2003 and as the personnel records currently in the file do not contain evaluations to show the nature of the Veteran's hospital corpsman duties, and additional request for a complete personnel file is necessary to decide the claims. 3. 4. 5. 6. Entitlement to service connection for hypertension, diabetic retinopathy, and lack of blood flow to the left and right lower extremities, each to include as secondary to type 2 diabetes mellitus As discussed above, the Veteran has claimed service connection for type 2 diabetes mellitus as due to exposure to Agent Orange. The Veteran alleges that his disabilities of hypertension, diabetic retinopathy, and lack of blood flow to the left and right lower extremities were caused by his type 2 diabetes mellitus. Therefore, a decision on the above claim of service connection for type 2 diabetes mellitus would significantly impact a decision on these matters. Accordingly, these matters are inextricably intertwined with the Veteran's claim of service connection for type 2 diabetes mellitus. A remand of these matters is therefore required. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's reported herbicide exposure while serving in Guam (1975-1977) from US government, territory of Guam government, or the Department of Defense research agencies. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a formal finding outlining the steps taken to assist the Veteran and notify he Veteran of VA's inability to verify the in-service herbicide agent exposure. 2. Because the Veteran reported Reserve service through 2003, request additional copies of all available service treatment and personnel records including if available records of personnel evaluations showing the Veteran's duties on active duty and Reserve training. 3. Following the above development, schedule the Veteran for an examination by an appropriate clinician to determine the nature and likely etiology of his (1) type 2 diabetes mellitus and (2) coronary artery disease. Upon review of the record, and interview/examination of the Veteran, the clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's type 2 diabetes was caused by service? (b.) Is it at least as likely as not (a 50 percent probability or greater that the Veteran's coronary artery disease was caused by service? (c.) If the Veteran's type 2 diabetes mellitus is found to be related to service, please identify whether the Veteran's (1) hypertension, (2) diabetic retinopathy, and (3) lack of blood flow to the left and right lower extremities was caused or aggravated by his type 2 diabetes mellitus. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner should consider the Veteran's reports of his duties and nature of his contact with what he believed to be Agent Orange or its residue as well as any documents in the file addressing the presence of these herbicide agents in Guam in 1975-77. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.