Citation Nr: 21012933 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-37 628 DATE: March 8, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure and TCDD (dioxin), is remanded. Entitlement to service connection for abdominal cancer, to include as due to herbicide exposure and TCDD (dioxin), is remanded. REASONS FOR REMAND 1. & 2. The claims for entitlement to service connection for diabetes mellitus, type II, and for abdominal cancer, to include as due to herbicide exposure, are remanded. In September 2019, the Board remanded the claims, specifically instructing the Regional Office to take all appropriate steps to verify the Veteran’s contention that he was exposed to herbicide agents and TCDD (dioxin) while serving in Guam. In sum, the Veteran has asserted that he was exposed to herbicides, and not just Agent Orange but also TCDD dioxin, when he served at Anderson Air Force base in Guam. He stated that he was assigned to the open bay barracks of the Marbo Annex the first couple of months of his 18 months of service in Guam (August 1966-February 1968) and that reports have shown that dioxins were found in the soil and water table of Guam, with one of the worst areas being in the Marbo Annex of the Anderson Air Force Base. See August 2016 Veteran’s Statement. However, insufficient development has been done as to the alleged TCDD dioxin exposure. In fact, the Joint Service Records Research Center (JSRRC) was not consulted. Thus, the Board finds that the Agency of Original Jurisdiction has not substantially complied with the Boards prior remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A remand is warranted to comply with Stegall. Id. In addition, the Board notes that under 38 C.F.R. § 3.307 (c), “herbicide agent” is defined as “a chemical in an herbicide,” and “specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and Picloram.” If the evidence shows that the Veteran was exposed to commercial herbicides with formulations of 2,4-D and 2,4,5-T that are distinct from the tactical herbicide agents of the type identified in 38 C.F.R. § 3.307 (a)(6)(i), the special presumptions for tactical herbicides may not apply; however, development may nevertheless be warranted to determine whether the actual chemical exposure may be etiologically significant to the later onset of a claimed disease. The United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a nonpresumptive direct-incurrence basis. Based on the above, the Board finds that a remand to determine the Veteran’s claimed exposure to herbicides is necessary. The matters are REMANDED for the following action: 1. Take all appropriate steps, including contacting the U.S. Army and Joint Services Records Research Center (JSRRC), the National Personnel Records Center (NPRC) and /or any other appropriate depository to verify the Veteran’s contention that he was exposed to herbicide agents (including commercial herbicide agents) and TCDD (dioxin) while stationed at the Anderson Air Force Base in Guam. All steps taken must be documented and associated with the claims file. Personnel records indicate that the Veteran served at Anderson Air Force base in Guam from August 1966 to February 1968. He stated that he was assigned to the open bay barracks of the Marbo Annex the first couple of months of his 18 months of service in Guam (August 1966-February 1968) and that reports have shown that dioxins were found in the soil and water table of Guam, with one of the worst areas being in the Marbo Annex of the Anderson Air Force Base. See August 2016 Veteran’s Statement; see also April 2019 Board Hearing Transcript. 2. After step 1 is complete, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s diabetes mellitus, type II, and residuals of abdominal cancer. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including claimed exposure to herbicides (including commercial herbicides) and TCDD (dioxin). The examiner must opine as to whether it is at least as likely as not the disability (1) began during active service, (2) manifested within [presumptive period] after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38C.F.R. §§3.158, 3.655. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.