Citation Nr: 21014964 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-38 225A DATE: March 16, 2021 REMANDED Entitlement to service connection for bronchial asthma, to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for a full body rash, to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for diabetes, to include as a result of exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as a result of exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1970 to December 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Buffalo, New York in April 2012. It was previously before, and remanded for additional development by, the Board in October 2018. 1. Entitlement to service connection for bronchial asthma, to include as a result of exposure to herbicide agents, is remanded. 2. Entitlement to service connection for a full body rash, to include as a result of exposure to herbicide agents, is remanded. 3. Entitlement to service connection for diabetes, to include as a result of exposure to herbicide agents, is remanded. 4. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as a result of exposure to herbicide agents, is remanded. The Veteran claims that he was exposed to Agent Orange while stationed at McGuire Air Force Base (AFB) in New Jersey and while unloading cargo from planes that were flying there from Vietnam, and he claims that said exposure caused the conditions that he is seeking service connection for herein. The Veteran’s military personnel records show that he was stationed at McGuire AFB from May 1970 until some unspecified date, presumably around the time of his discharge from active service in December 1973. See Block 8c, DD Form 214. The Board remanded this appeal in October 2018, and in its remand, the Board directed the Agency of Original Jurisdiction (AOJ) to “[c]ontact the JSRRC to determine whether at any time during his active service, the Veteran worked on or serviced C-123 aircraft that were known to have sprayed herbicide agents during Vietnam service.” The Board added that “[i]t should be noted that the Veteran served on active duty from January 1970 to December 1973 and was an air cargo specialist at McGuire Air Force Base from May 1970.” Where the remand orders of the United States Court of Veterans Appeals or the Board of Veterans Appeals are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 269 (U.S. 1998). After and pursuant to the Board’s October 2018 remand, the AOJ sent a request to the JSRRC for verification of the presence of C-123 aircraft at McGuire AFB between January 1, 1971 and February 24, 1971. In the JSRRC’s response, it stated the following: We researched the available January 1971 through March 1971 unit history submitted by the 438th Military Airlift Wing (MAW), higher headquarters for the 438th Aerial Port Squadron (APS) stationed at McGuire Air Force Base (AFB), New Jersey. However, the history was negative and did not report on or discuss Mr. [REDACTED], or unit personnel being exposed to Agent Orange (AO) or tactical herbicides while performing daily duty assignments on or around unit aircraft at McGuire AFB. The information also did not report on unit personnel being assigned to service, or worked on aircraft (C-123’s) that had returned from Southeast Asia. Information concerning Mr. [REDACTED] duty assignments during the specified time periods should be located in his Air Force (AF) Form 75 (USAF Airman’s Performance Reports) within his Official Military Personnel Files (OMPF). The Board’s October 2018 remand and the Veteran’s military personnel records reflect that he was an air cargo specialist at McGuire AFB from May 1970 and likely until about the time of his discharge, in December 1973. The JSRRC’s response clearly indicates that it only researched the period from January 1971 through March 1971. As only a portion of the period that the Veteran served at McGuire AFB has been researched, the Board finds that additional information is needed, and that, pursuant to Stegall, this appeal must be remanded once again. On remand, the AOJ should seek verification from the JSRRC of any exposure of the Veteran to herbicide agents (including Agent Orange), including through contact with C-123 aircraft. The matters are REMANDED for the following action: 1. Contact the JSRRC to determine whether, between May 19, 1970 and December 21, 1973, the Veteran: (a) was exposed to herbicide agents (including Agent Orange); or (b) worked on or serviced C-123 aircraft that were known to have sprayed herbicide agents during Vietnam service. 2. If the above development results in a response from JSRRC that indicates that the Veteran was exposed to herbicide agents or did have the contact with C-123 aircraft described above, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) for his claimed bronchial asthma, full body rash, and peripheral neuropathy of the lower extremities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s conditions manifest in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Is bronchial asthma at least as likely as not related to in-service exposure to herbicide agents? (b.) Is any full body rash at least as likely as not related to in-service exposure to herbicide agents? (c.) Does the Veteran have a diagnosis of early-onset peripheral neuropathy? (d.) Is peripheral neuropathy of the lower extremities at least as likely as not related to in-service exposure to herbicide agents? (e.) Is any peripheral neuropathy of the lower extremities at least as likely as not proximately due to diabetes mellitus type 2? (f.) Is any peripheral neuropathy of the lower extremities at least as likely as not aggravated, i.e., worsened beyond its natural progression, by diabetes mellitus type 2? The examiner is advised that a negative opinion regarding whether the aforementioned conditions are caused by exposure to herbicide agents cannot be based solely on the fact that the claimed disabilities are not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the opinion(s). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.