Citation Nr: 21021824 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-22 800 DATE: April 14, 2021 REMANDED Service connection for diabetes mellitus, type II (diabetes), to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1966 until his honorable discharge in April 1970. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from an October 2010 rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which reopened the claim for service connection for diabetes and confirmed and continued denial of service connection. In February 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In May 2015, the Board reopened the Veteran’s claim for service connection for diabetes and remanded the case to the RO for further development. Specifically, the Board directed the RO to send a request to the Joint Service Records Research Center (JSRRC) to verify the Veteran’s exposure to herbicide agents consistent with his military occupational specialty (MOS) as a cook during his active service at Udorn Royal Thai Air Force Base (Udorn RTAFB) from February 1967 to March 1968. In a December 2019 decision, the Board denied the Veteran’s claim for service connection. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion to Remand (JMR) to the Court in which they stipulated that (1) the Board failed to address whether a JSRRC Coordinator Response substantially complied with the Board’s May 2015 remand order, and (2) the Board failed to address the Veteran’s lay statements about serving at the perimeter at Udorn RTAFB and his lay statements about having a layover in Vietnam on his way to and from Udorn RTAFB. The Court entered an order in November 2020 vacating the Board’s decision in full and remanding the matter to the Board for readjudication. The Board finds remand is necessary for additional development. First, consistent with the parties’ JMR before the Court, the Board finds the RO must substantially comply with the Board’s May 2015 remand directive. In a November 21, 2016, VA Administrative Decision, the JSRRC Coordinator stated, “Per the Air Force Historical Research Agency (AFHRA) Agent Orange was never used for vegetation control at USAF Bases in Thailand. Since a request to the Joint Services Records Research Center [ ] would be forwarded to the AFHRA, the AFHRA’s statement is all that is needed.” The Board’s May 2015 remand specifically directed the RO to submit a request to the JSRRC, which the RO did not do. It may well be that the JSRRC would forward the request to the AFHRA, but that does not permit the RO to avoid complying with the Board’s remand. Second, the Board is unable to locate any medical records within the Veteran’s claims file that indicate he has a diagnosis of diabetes. In his July 2008 VA Form 21-526, application for benefits, he reported his diabetes began in May 2008 and he was treated by Dr. J.H. at a private facility. In the Board’s December 2019 decision, it accepted the Veteran’s lay statement that he had diabetes. On further review, the Board finds a VA medical examination is necessary to confirm what type of diabetes the Veteran may have. Notably, presumptive service connection based on exposure to herbicide agents is only available for “Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes).” 38 C.F.R. § 3.309(e). If the Veteran has another type of diabetes, presumptive service connection will not be warranted. Furthermore, as the Veteran may be entitled to service connection on a direct, non-presumptive basis, determining what type of diabetes he has is important. In addition, the Board finds attempts to retrieve the Veteran’s private medical records should be made. Accordingly, the case is REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records from: (a.) Dr. J.H., at Searcy Medical Center; and (b.) Any other private treatment received for his diabetes. Reasonable attempts must be made to obtain relevant private medical records. 3. As directed by the Board’s May 2015 remand, submit appropriate requests to the Joint Service Records Research Center Division (JSRRC) requesting verification of the use of herbicide agents, to include Agent Orange, at Udorn Royal Thai Air Force Base (Udorn RTAFB) from February 1967 to March 1968 to verify his exposure to herbicide agents consistent with his military occupational specialty as a cook at that base. If multiple requests are required to obtain all the information sought, they should be made. All requests and responses received should be associated with the claims file. If the requested information is unavailable, a formal finding of unavailability should be prepared and associated with the claims file. The RO should pursue all development to its logical conclusion. In deciding whether the Veteran was exposed to herbicide agents, to include Agent Orange, while on active service at Udorn RTAFB, the RO should consider the following information: (a.) The Veteran’s lay statements and testimony that he was required to serve military service members at the perimeter of the Udorn RTAFB on a daily basis. 4. Obtain a VA examination from an appropriately qualified clinician addressing the Veteran’s diabetes. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Please identify what type of diabetes the Veteran has, if any. (b.) If the Veteran has an identifiable type of diabetes, please opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diabetes had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include as due to exposure to herbicide agents. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran’s statements that his in-service feet blisters are evidence of direct exposure to herbicide agents during his service at Udorn RTAFB. See May 1987 STR. (b.) The Veteran’s statements that he developed fungus on both of his feet and lost his left and right little toenails, which he claims was due to direct exposure to herbicide agents during his service at Udorn RTAFB. See July 2008 VA Form 21-526, Application for Benefits. The examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion of diabetes in service or the assertion that an in-service event, injury, or illness led to diabetes. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.