Citation Nr: 21010018 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 11-13 716 DATE: February 23, 2021 REMANDED Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, for accrued benefits purposes, is remanded. Entitlement to service connection for peripheral neuropathy with foot drop, to include as due to herbicide agent exposure, as secondary to diabetes mellitus, and as secondary to non-Hodgkin’s lymphoma, for accrued benefits purposes, is remanded. Entitlement to service connection for non-Hodgkin’s lymphoma, to include as due to herbicide agent exposure, for accrued benefits purposes, is remanded. Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran had qualifying service from June 1968 to December 1972 as a veterinarian in Okinawa, Japan. See DD Form 214. Unfortunately, the Veteran passed away in March 2007. See March 2007 Death Certificate. The Appellant is the surviving spouse. In June 2016, the Appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In a November 2016 Board Decision, the Board remanded all issues herein for further development. In a December 2019 Decision, the Board denied all issues herein. In a September 2020 Joint Motion for Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the December 2019 Board Decision and remanded all issues herein for further medical development and adjudication. 1. Entitlement to service connection for diabetes mellitus In the December 2002 VA Form 21-526, the Veteran contended in-service exposure to herbicide agents, including Agent Orange, and described how his duties included treating and performing autopsies on service sentry dogs that had returned from service in the Republic of Vietnam (requiring close and frequent contact with these dogs); the Veteran contended that the dogs and their shipping crates may have been contaminated with Agent Orange, stating that he frequently had contact with dogs that were still wet and contaminated from the moisture runoff dripping from damaged military vehicles returning from the Republic of Vietnam. He further contended that the sentry dogs were contaminated by walking their posts in the property disposal yard where a multitude of differing military material and equipment returned from the Republic of Vietnam for disposal. He also described how he was exposed to formaldehyde through the respiratory tract and through the skin during the performance of dog autopsies and contended that formaldehyde is a known carcinogen. The Veteran further contended that Agent Orange is a known cause of non-familial type II diabetes, non-Hodgkin’s lymphoma, and the secondary peroneal neuropathy. In a February 2003 Statement, the Veteran reiterated his contention about Agent Orange exposure in Okinawa. In February 2003, the Veteran was afforded a general medical examination; however, the examiner did not discuss the contended exposures and did not render an etiological opinion. In an April 2003 Third Party Correspondence, the Veteran’s former representative contended that the Veteran had been exposed to herbicide agents prior to service while helping his father around the farm, but had also been exposed to additional chemicals during service; the representative specifically contended that the Veteran was exposed to 2, 4-D and 2,3,5-T, produced by Dow Chemicals. In a June 2003 Notice of Disagreement and a December 2003 Statement, the Veteran reiterated his contention about in-service herbicide agent exposure causing all three disabilities herein. In a May 2004 VA Form 9, the Veteran reiterated his contention that he was exposed to Agent Orange through direct contact with the sentry dogs that returned from the Republic of Vietnam because many, if not all, of these dogs were directly contaminated while serving in the Republic of Vietnam and the Veteran was solely responsible for providing complete veterinary care. In a November 2005 Letter to a congressperson, the Veteran reiterated his contention about in-service herbicide agent exposure from the sentry dogs and equipment that had been in the Republic of Vietnam. In a March 2008 VA Form 21-534, the Appellant contended that the Veteran was exposed multiple times to Agent Orange and that he was convinced of the correlation between his conditions and his exposure. In a June 2008 Statement, the Appellant reiterated previous contentions about herbicide agent exposure on a daily basis through the dogs. The Appellant further contended that this exposure led to the Veteran’s cancer and, ultimately, his suicide. Further, the Appellant contended that a VA provider commented to the Veteran that he likely had heavy exposure to Agent Orange based on his symptoms. A September 2008 private opinion by Dr. TAB and a September 2008 Buddy Statement by Dr. WML (the Veteran’s brother) opined that the Veteran committed suicide because of the pain and suffering caused by his conditions herein. In a May 2011 VA Form 9, the Appellant reiterated the contentions about herbicide agent exposure through treating and performing autopsies on dogs; she further contended that the dogs were exposed to herbicide agents while walking the fence line. She also reiterated the contention that the Veteran committed suicide because of the unbearable pain and suffering from the disabilities on appeal. In April 2015, the Appellant submitted photographs of the Veteran performing his veterinarian duties in service around dogs and their cages. During the June 2016 Board hearing, the Appellant reiterated the contentions that the Veteran was exposed to herbicide agents through the dogs and equipment returning from the Republic of Vietnam and that the dogs walked the fence lines. She also contended that the Veteran worked with hundreds of dogs, he performed autopsies on the dogs from Okinawa and the Republic of Vietnam by placing tissue samples in formaldehyde, and that the Okinawa animals had a higher testicular cancer rate than the Republic of Vietnam dogs. She also contended that the equipment returned to Okinawa from the Republic of Vietnam was contaminated and that both the Veteran and the dogs would be around the equipment. She also reiterated the contention that the Veteran’s illnesses may have been related to formaldehyde exposure during autopsies. She also contended that the Veteran participated in a top-secret operation called Red Hat that removed barrels of toxic liquids from Okinawa, which she contended contained Agent Orange and killed bunnies and fish. She also contended that, according to maps, the dog school in Okinawa was sprayed with Agent Orange. The Veteran’s brother, Dr. WL also testified that the Veteran committed suicide because of the pain and suffering caused by the conditions on appeal, the Veteran had heavy exposure to Agent Orange from the dumps, and that the National Institute of Medicine has opined that it is more likely than not that these diseases are caused by Agent Orange exposure. The Appellant further contended that a fellow veterinary technician in Okinawa corroborated the Veteran’s contentions, describing working with dogs smelling of chemicals like fuel oil and pesticides, later revealed to be Agent Orange. In July 2016, the Appellant submitted a February 2016 e-mail between her and DS, the fellow veterinary technician in Okinawa who corroborated the Veteran’s contentions regarding exposure to herbicide agents. In July 2016 Buddy Statements, KP (a fellow servicemember) described handling dogs and herbicide agent exposure. In a July 2016 Third Party Correspondence and a July 2016 Statement, the Appellant continued reiterating the contention that the Veteran had been exposed to herbicide agents in service. In an October 2019 Buddy Statement, Dr. WML (the Veteran’s brother) continued contending that the Veteran was exposed to herbicide agents and formaldehyde, a known carcinogen, in service. In November 2019 and January 2021 Briefs, the Appellant continued reiterating the contention that the Veteran had been exposed to herbicide agents in service. In addition to the specific contentions discussed above, the Veteran and Appellant also submitted several internet articles in support of the contention that the Veteran was exposed to herbicide agents in service. In the September 2020 JMR, the Court found that the Board failed to address the Veteran’s credibility and competence and failed to address the Appellant’s arguments. Further, the Court found that the Board’s finding of no herbicide agent exposure in service was inadequate because it did not address the lay evidence submitted prior to the Veteran’s death. The Court explained that the Veteran did not consider the Veteran’s detailed description of his duties while working as a veterinarian in Okinawa when determining whether he was exposed to herbicide agents while treating dogs. The Court further explained that the Board did not address the argument that the Veteran’s formaldehyde exposure during autopsies caused his cancer. The Court further explained that the Board did not address the Appellant’s testimony regarding the Veteran participating in Operation Red Hat. Crucially, for the Board to fulfil the Court’s directives, it must seek further medical development to determine: (a) whether it is at least as likely as not that the Veteran was exposed to herbicide agents through his frequent handling of dogs and equipment returning from the Republic of Vietnam; and (b) whether it is at least as likely as not that exposure to formaldehyde during dog autopsies caused the Veteran’s cancer. As such, remand is required. 2. Entitlement to service connection for peripheral neuropathy with foot drop This claim is remanded for the same reasons discussed above. 3. Entitlement to service connection for non-Hodgkin’s lymphoma This claim is remanded for the same reasons discussed above. 4. Entitlement to service connection for the Veteran’s cause of death The Appellant has contended that the Veteran’s suicide was caused by his pain and suffering from the conditions on appeal. See June 2008 Statement; September 2008 private opinion by Dr. TAB; September 2008 Buddy Statement by Dr. WML (the Veteran’s brother); May 2011 VA Form 9. As such, the cause of death claim is inextricably intertwined with the other remanded claims herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other); Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error). The matters are REMANDED for the following action: 1. Obtain a medical opinion to determine: (a) whether it is at least as likely as not that exposure to formaldehyde during dog autopsies caused the Veteran’s cancer. The examiner should consider pertinent evidence of record, including, but not limited to the evidence discussed above in the Remand body: (a) the December 2002 VA Form 21-526; (b) the February 2003 Statement; (c) the April 2003 Third Party Correspondence; (d) June 2003 Notice of Disagreement; (e) May 2004 VA Form 9; (f) November 2005 Congressional Letter; (g) March 2008 VA Form 21-534; (h) June 2008 Statement; (i) September 2008 private opinion by Dr. TAB and a September 2008 Buddy Statement by Dr. WML; (j) May 2011 VA Form 9; (k) April 2015 photographs; (l) June 2016 Board hearing transcript; (m) February 2016 e-mail (submitted in July 2016); (n) July 2016 Buddy Statements by KP; (o) July 2016 Third Party Correspondence; (p) July 2016 Statement; (q) October 2019 Buddy Statement by Dr. WML; (r) November 2019 Brief; (s) January 2021 Brief; and (t) various internet articles in support of the contention that the Veteran was exposed to herbicide agents in service. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.