Citation Nr: 21075187 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 13-28 785 DATE: December 17, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1988. He died in November 2017 and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2013 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in February 2018 and May 2020 for further development. 1. Entitlement to service connection for diabetes mellitus, type II is remanded. The Veteran maintained that he was exposed to herbicides during service. In December 2013 correspondence, he described the duties he executed while stationed at Camp Samae San in Thailand from February 1969 to February 1970. He stated that while his military occupational specialty (MOS) was administrative in nature, his assigned duties for the Logistic Command included working in a message distribution center. The Veteran stated that he "served as a courier and I use to go to U-Tapao Air Force Base every other day, Mondays, Wednesdays, and Fridays, to meet with the courier from Korat, up North, which came by plane and we would exchange documents. This included waiting on the perimeter of the flight line, sometimes for 45 minutes at a time." He also reported that as part of the courier route he stopped at Camp Vayama to pick up message for "breakdown." He further stated that there were times at Camp Samae San they were instructed to not return to the sleeping quarters for a couple hours due to spraying the area with herbicides to kill the vegetation. Pursuant to the prior May 2020 Board remand, the RO was instructed to verify the Veteran's claimed exposure to herbicides based on his service in Thailand from December 1968 to February 1970. Per email correspondence dated April 2021, an Air Force Historical Research Agency archivist, he indicated that Agent Orange was never used for vegetation control at United States Air Force Bases in Thailand. Regarding non-tactical, commercial grade herbicides being used, he provided a list of dates of when such were used at Royal Thai Air Force Bases (RTAFB), including Korat, Nakhon Phanom, Takhli, Ubon, Udorn, U-Tapao, Don Muang, Ko Kha Air Station and Mukdahan Air Station. However, the Veteran's claimed exposure to herbicides at Camp Samae San and Camp Vayama has not been verified. Accordingly, the Board finds that remand is warranted to complete development related to verification of the Veteran's alleged exposure to herbicide agents while stationed in Thailand. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Pursuant to the Veteran's December 2009 and updated November 2020 VA Form 21-8940 Application for Increased Compensation Based on Individual Unemployability, he claimed his lumbar spine disability prevented him from securing or following any substantially gainful occupation. However, in a November 2009 statement, the Veteran reported his entire spine had been compromised and he developed numbness in his legs, and he had not been able to work since December 2003. The Board acknowledges that prior to his death, the Veteran was service-connected for radiculopathy of the left and right lower extremities associated with his lumbar spine as well as residual surgery scar of the lumbar spine. As such, the Board will broadly interpret the Veteran's claim for TDIU due to all of his service-connected disabilities. The Board also notes that the Veteran had been in receipt of Social Security Administration (SSA) disability benefits due to a primary diagnosis of back disc herniation and a secondary diagnosis of diabetes mellitus. Prior to his death, the Veteran was service-connected for degenerative changes of the lumbar spine, rated as 0 percent disabling from March 1, 1988, 10 percent disabling from August 24, 2009, and 20 percent disabling from July 29, 2011; radiculopathy of the left lower extremity, rated as 10 percent disabling from August 24, 2009 and 20 percent disabling from December 3, 2013; radiculopathy of the right lower extremity rated as 10 percent disabling from August 24, 2009 and 20 percent disabling from December 3, 2013; tinnitus, rated as 10 percent disabling from August 16, 2012; epicondylitis of the right elbow, rated as noncompensable from March 1, 1988; bilateral achilles tendonitis, rated as noncompensable from March 1, 1988; residual surgery scar of the lumbar spine, rated as noncompensable from August 24, 2009; and post-operative right ureterolithiasis scar, rated as noncompensable from December 3, 2009. The Veteran's combined ratings are 0 percent from March 1, 1988, 30 percent from August 24, 2009, 40 percent from July 29, 2011 and 60 percent from December 3, 2013. Thus, the Veteran did not meet the schedular criteria for entitlement to a TDIU. In such circumstances, VA must consider TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board cannot, however, consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Recently, the Court of Appeal for Veterans Claims explained that this initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). In this case, given that the Veteran was in receipt of SSA disability benefits due to primarily to back disc herniation, the Board finds that there is a reasonable possibility that the Veteran was unemployable due, in part, to his service-connected lumbar spine disability prior to his death. Accordingly, the claim for TDIU must be remanded for referral to the Director, Compensation Service, for consideration of an extraschedular TDIU. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following actions: 1. Request that all official sources investigate and attempt to verify the Veteran's reported exposure to herbicides while serving at Camp Samae San in Thailand, during the period from December 1968 to February 1970. The histories of the Veteran's unit(s), to include the HHC 9th Logistic Command, during the time he served in Thailand must also be provided. If more detailed information is needed for this research, the appellant should be given an opportunity to provide it. All efforts made and information received should be placed in the claims file. (Continued on the next page) 2. Refer the issue of entitlement to a TDIU to VA's Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.