Citation Nr: A21020337 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 190620-11969 DATE: December 21, 2021 REMANDED Entitlement to service connection for thrombocythemia, as secondary to in-service exposure to herbicides, is remanded. Entitlement to service connection for hypertension, as secondary to in-service exposure to herbicides, is remanded. Entitlement to service connection for diabetes mellitus, as secondary to in-service exposure to herbicides, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 to November 1969. In a February 2019 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to service connection for thrombocythemia, hypertension, and diabetes mellitus. The Veteran submitted a June 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) and elected Direct Review by a Veterans Law Judge (VLJ) of the VA Board of Veterans' Appeals (Board). Direct Review is the appeal option to the Board in which a Board decision is issued based on the evidence of record at the time of the prior decision, in this case, the February 2019 rating decision. The Board, in its June 2020 decision, denied entitlement to service connection for thrombocythemia, hypertension, and diabetes mellitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2021 Joint Motion for Remand (JMR) filed by the parties and a July 2021 Court Order, the Court has remanded the claims back to the Board. Entitlement to service connection for thrombocythemia and hypertension, each as secondary to in-service exposure to herbicides, is remanded. The RO, in its February 2019 rating decision, favorably found that the Veteran had service in the Republic of Vietnam and had been diagnosed with thrombocythemia and hypertension. The Veteran underwent VA examination for the same; November 2018 Disability Benefits Questionnaires (DBQs) are of record. The Veteran asserts that his disabilities are related to his in-service exposure to herbicides. The parties to the June 2021 JMR determined that VA failed in its duty to assist the Veteran by not obtaining adequate etiological opinions as to his thrombocythemia and hypertension. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). On remand, the RO should obtain such opinions. Entitlement to service connection for diabetes mellitus, as secondary to in-service exposure to herbicides, is remanded. The RO, in its February 2019 rating decision, favorably found that the Veteran had service in the Republic of Vietnam. The Veteran asserts that his diabetes mellitus is related to his in-service exposure to herbicides. The Board, in its June 2020 decision, denied the Veteran's claim of entitlement to service connection for diabetes mellitus on the basis that such had not been diagnosed. In the November 2018 DBQ, the examiner, citing November 2018 results of laboratory testing, reported that there was no objective evidence of diabetes mellitus. However, the parties to the June 2021 JMR determined that VA failed in its duty to assist the Veteran by not providing adequate reasons and bases for its conclusion that the Veteran did not have diabetes mellitus. The parties cited March 2018 VA treatment records indicating that the Veteran presented with a history of diabetes mellitus II with a current hemoglobin A1c level of 6.1. The Board herein notes that also of record is a December 2018 VA treatment record indicating that the Veteran's previous medical history included prediabetes. On remand, the RO should afford the Veteran a VA examination to resolve the conflicting medical evidence as to whether the Veteran has diabetes mellitus. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to the VA examiner who submitted the November 2018 DBQ as to the Veteran's thrombocythemia, or a suitable substitute. If any examiner determines that additional physical examination of the Veteran is required in order to respond to the Board's inquiries, so schedule the Veteran. The examiner, after review of the claims file and with complete rationale to support their opinion, should respond to the following: (a) Is the Veteran's thrombocythemia at least as likely as not (at least 50 percent probability) related to service? (b) Is the Veteran's thrombocythemia at least as likely as not related to in-service exposure to herbicides? The examiner is advised that a negative opinion cannot be based solely on the fact that thrombocythemia is not on the list of diseases that are presumptively associated with exposure to herbicide agents. 2. Forward the Veteran's claims file to the VA examiner who submitted the November 2018 DBQ as to the Veteran's hypertension, or a suitable substitute. If any examiner determines that additional physical examination of the Veteran is required in order to respond to the Board's inquiries, so schedule the Veteran. The examiner, after review of the claims file and with complete rationale to support their opinion, should respond to the following: (a) Is the Veteran's hypertension at least as likely as not (at least 50 percent probability) related to service? (b) Is it at least as likely as not that the Veteran's hypertension: (1) manifested to a compensable degree within one year of discharge from service; or (2) was noted during service with continuity of the same symptomatology since service? (c) Is the Veteran's hypertension at least as likely as not related to in-service exposure to herbicides? The examiner is advised that a negative opinion cannot be based solely on the fact that thrombocythemia is not on the list of diseases that are presumptively associated with exposure to herbicide agents. In this regard, the examiner must consider and discuss the National Academy of Sciences (NAS) finding, in Veterans and Agent Orange: Update 11 (2018), that hypertension has been upgraded to the "sufficient" category from the "limited or suggestive," category, indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and an herbicide agent. 3. Schedule the Veteran for a VA examination for his claimed diabetes mellitus. The examiner, after review of the claims file and with complete rationale to support their opinion, should respond to the following: Does the Veteran have a diagnosis of diabetes mellitus, considering the results of all laboratory testing and/or other clinical evidence of record? In this regard, the examiner must consider and discuss the March 2018 VA treatment record indicating that the Veteran presented with a history of diabetes mellitus II with a current hemoglobin A1c level of 6.1 and the December 2018 VA treatment record indicating that the Veteran's previous medical history included prediabetes If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" and state as such. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.