Citation Nr: 21014709 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-06 924 DATE: March 15, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran had active service from March 1968 to January 1972. He had service in Thailand during the Vietnam War Era. He received the Vietnam Service Medal with one Bronze Service star, among other citations. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Wichita, Kansas, the Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in October 2018, at which time it was remanded for further development. 1. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure The Veteran, who is pursuing this matter without representation, contends that service connection for diabetes mellitus, type II, is warranted due to in-service exposure to herbicide agents in Thailand. As the Veteran is unrepresented in this case, VA has a duty to construe his claims liberally. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Certain specified diseases, including diabetes mellitus type II, are presumed to be associated with herbicide exposure. The availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C.§1116(a); 38 C.F.R. §§ 3.303(d); §§3.307(a)(6), 3.307(d)(1), 3.309(e); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA has determined that herbicides were used along the fenced-in perimeters of military bases in Thailand to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide exposure on a facts-found basis is extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. See Guidance provided in the VA Adjudication Procedure Manual M21-1, IV.ii.H.5.b. The Veteran’s personnel records show that he was stationed at Korat Air Force Base in Thailand from January 1971 to January 1972, where his duty position was administration clerk. Service treatment records indicating that the Veteran was treated for chest pain verify that the Veteran was stationed at U-Tapao Air Force Base in March 1970. In a June 2019 statement the Veteran submitted photos that he claimed indicated such service. Based on the evidence of record, including the service treatment records, photos, and the Veteran’s competent and credible statements, the Board finds that he was stationed at U-Tapao AFB from September 1969 to March 1970. A performance report for the Veteran from July 1971 shows that the Veteran was working at Korat AFB as an administrative specialist with an Automatic Digital Network Switching Center, where he was responsible for maintenance of the operational file of publications and prepared communications such as letters and messages, and maintained files. VA procedures require that even if a veteran did not hold a job which has been acknowledged to involve duties on the perimeter of the base, if he has provided information regarding the dates, location, and nature of his exposure to herbicide agents in Thailand, the case must be referred to the Joint Services Records Research Center coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. The case must then be adjudicated on a facts-found basis regarding whether the evidence indicates that the Veteran was exposed to herbicide agents in service. In a statement received in August 2013, the Veteran wrote that he had two tours of duty in Thailand and that his living quarters at U-Tapao Air Force Base was not far from the airplane runways. He wrote that there was a smell of chemicals. He stated that he worked in personnel and at times he would go to the flight line to provide information to new arrivals when they landed. He also stated that at Korat AFB, Thailand where he worked at the audition switching station, an open-air complex, and would be transported by military bus to and from an adjacent army base. He remembered the area being sprayed with a chemical several times to keep foliage around the perimeter clear. He wrote that there was also dead foliage around his living quarters. In a June 2014 statement, he stated that he could see a mist of herbicide spray that made his eyes burn and that he had to travel to a relay station which exposed him to the herbicide spray off base. In November 2013, VA’s Compensation Service provided a Memorandum for Record - Herbicide Use in Thailand that did not indicate records of the use or tactical herbicides relevant to the Veteran's claim. However, it was recommended, that unless the claim was inherently incredible, clearly lacked merit, or there was no reasonable possibility that further VA assistance would substantiate it [see 38 C.F.R. § 3.159(d)], regional offices should send a request to JSRRC for any information that the organization can provide to corroborate the Veteran's claimed exposure. Further, in its October 2018 remand, the Board directed the AOJ to contact the Joint Services Records Research Center (JSRRC) coordinator and any other appropriate organization to obtain additional information regarding the Veteran’s service and duties while stationed at Korat Air Force Base in Thailand from January 1971 to January 1972 and any service at U-Tapao Air Force Base from September 1969 to March 1970. Nonetheless, unfortunately, this matter was not referred to the JSRRC for a determination as to the circumstances of the Veteran’s service, including the duties he performed while stationed in Thailand, necessitating another remand for that action to occur. Stegall v. West, 11 Vet. App. 268 (1998). Following the above development, a new opinion is required, addressing whether it is at least as likely as not that the Veteran’s diabetes mellitus is related to service, including as due to herbicide exposure. Even if the Veteran does not qualify for a presumption of exposure to herbicides, he may establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Pursuant to the Board’s prior remand, VA obtained a medical examination and opinion regarding the possible nexus between his claimed exposure to herbicides and diabetes mellitus in October 2019. Bloodwork indicated a glucose result of 97 mg/dL. The examiner noted a diagnosis of impaired fasting glucose. The examiner found there was insufficient objective evidence with which to diagnose diabetes mellitus. Therefore, he opined that the Veteran’s diabetes was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In a July 2020 Supplemental Statement of the Case (SSOC), the AOJ indicated that it had sought an opinion from an independent examiner. The examiner reviewed the Veteran’s post-VA treatment records, and the VES examination and medical opinion of October 2019. The independent examiner provided a medical opinion that it is less likely than not that the Veteran’s diabetes mellitus was due to his military service. He stated that “There is insufficient objective evidence with which to diagnose diabetes mellitus.” The AOJ determined that without a positive medical opinion from a doctor who has reviewed the Veteran’s entire claims file with the legally binding language “at least as likely as not” linking the Veteran’s diabetes mellitus to military service, the AOJ found that entitlement to service-connection for diabetes mellitus was not established. Contrary to the above finding, the record provides evidence noting a past diagnosis of diabetes mellitus, type II, to include in a December 2009 VA primary care physician outpatient note, a November 2012 private treatment note, a May 2013 VA nursing operative assessment notes non-insulin dependent diabetes mellitus (NIDDM), a January 2019 VA primary care note indicates a high glucose reading of 104, and January 2020 to May 2020 VA primary care notes indicate a history of impaired fasting glucose, necessitating life-style changes. The Board finds that after a review of the Veteran’s file, including the above cited medical evidence, the Veteran had a diagnosis of diabetes type II during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board further finds that VA opinions are inadequate as they are internally inconsistent and failed to address evidence in the record that is favorable to the Veteran without providing reasons for rejecting such evidence. Barr v. Nicholson, 21 Vet. App. 303 (2007); Thompson v. Gober, 14 Vet. App. 187, 188 (2000). The examiners and the AOJ simultaneously indicate there is no diagnosis of diabetes and then find service connection cannot be granted without a medical opinion linking the Veteran’s diabetes to service. Contrary to the remand directives, the examiner did not discuss the Veteran’s lay statements that his job as an administrative specialist required him to travel to Relay Stations through areas where he could see herbicide spray and dead foliage. In addition, in October 2019, the Veteran was diagnosed with “impaired fasting glucose” pursuant to a VA examination. The examiners did not address the Veteran’s diagnosis of impaired fasting glucose in relation to his service connection claim. VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013). The requested new opinion should also address impaired fasting glucose. The matters are REMANDED for the following action: 1. Contact the Joint Services Records Research Center (JSRRC) coordinator to obtain additional information regarding the Veteran’s service and duties while stationed at Korat Air Force Base in Thailand from January 1971 to January 1972 and at U-Tapao Air Force Base from September 1969 to March 1970. 2. Request that JSRRC attempt to verify or determine the likely extent of any exposure to herbicides while stationed at either or both Korat and U-Tapao Air Force Bases. This should include addressing any evidence of frequent travel back and forth to Relay Stations which the Veteran has reported. This should also include discussion of the Veteran’s lay statements, including that he went to the airfield to greet new incoming personnel in the course of his duties. After a response is received, the Veteran must be notified of the response and of any further actions that will be taken with respect to the claim. 3. Obtain a VA medical opinion from a physician addressing whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s diabetes mellitus had its onset during or was otherwise caused by his service, including exposure to herbicide agents while serving in Thailand. The physician must discuss the Veteran’s lay statements, including that his job duties required him to travel to Relay Stations through areas where he could see herbicide spray mist and dead foliage. The physician must also discuss the Veteran’s assertion that he went to the airfield to greet new incoming personnel in the course of his duties. The reviewing physician should also address the Veteran’s diagnosis of impaired fasting glucose in relation to the Veteran’s claim. A complete explanatory rationale must be provided for any opinion offered. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.