Citation Nr: 21024744 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-00 211A DATE: April 26, 2021 ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to diabetes mellitus, type II. 3. Entitlement to service connection for diabetic retinopathy, to include as due to diabetes mellitus, type II. 4. Entitlement to service connection for a heart disability, also claimed as ischemic heart disease, to include as due to herbicide exposure. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to diabetes mellitus, type II is remanded. Entitlement to service connection for diabetic retinopathy, to include as due to diabetes mellitus, type II is remanded. Entitlement to service connection for a heart disability, also claimed as ischemic heart disease, to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1966 to June 1969. These matters come before the Board of Veterans (Board) on appeal from April 2011 and January 2014 rating decisions issued by the Department of Veterans Appeals (VA) Regional Office (RO) in Detroit, Michigan. These issues were previously before the Board in August 2018, where it was noted that in September 2012, the Veteran filed a VA Form 9 in response to a March 2012 Statement of the Case (SOC). Generally, this would be deemed untimely, as the substantive appeal was not filed with 60 days from the date the RO mailed the Veteran the SOC. 38 C.F.R. §§ 20.200, 20.300, 20.302. The Board however waived the issue of timeliness regarding the substantive appeal and exercised jurisdiction over the matters, as the Veteran had relied on the fact that the RO appeared to accept his VA Form 9 through subsequent development and adjudicative actions. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in July 2017 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. As noted above, in August 2018 the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Having said that, the Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for diabetes mellitus, type II, and service connection for a heart disability, claimed as ischemic heart disease, both to include as due to herbicide exposure are each remanded. The Veteran contends that he is entitled to service connection for diabetes mellitus, type II, and for a heart disability, due to his claimed exposure to herbicides. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307 (d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Neither the Veteran, nor his Attorney, contend that the Veteran served in the Republic of Vietnam. Instead, they argue that he was exposed to herbicide agents while stationed at Camp Carroll in the Republic of Korea. VA regulations extend the presumption of herbicide exposure to certain veterans who served in Korea. Specifically, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. Notwithstanding, service connection for a disability claimed as being due to presumptive exposure may still be established by showing that the disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994) (citing 38 U.S.C. §§ 1113(b), 1116 and 38 C.F.R. § 3.303. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Again, the Veteran was given a hearing before the undersigned, where he testified that he was stationed at Camp Carroll in South Korea from March 1967 to May 1968. See Board hearing testimony, p.8. He testified that on one occasion he was required to move 55-gallon drums in a warehouse and he also referenced what he referred to as a “8,000 page report” which he says supported his position that Agent Orange was stored at Camp Carroll. Finally, his representative stated that all relevant medical evidence from the VA medical center had not been associated with the Veteran’s electronic claims folder. Specifically, he stated that one of the Veteran’s doctors provided a positive nexus between the Veteran’s diabetes and related disabilities and his in-service herbicide exposure. Based on the foregoing, the Board remanded the Veteran’s claim in August 2018. The RO was to obtain the missing treatment records from the Detroit VAMC, obtain the “8,000 page report” referenced by the Veteran, and then to contact the Joint Services Records Research Center (JSRRC), or any other appropriate service department agency, and request development to verify the Veteran’s allegations of exposure to Agent Orange (and/or other chemicals and compounds listed in 3.307(a)(6)) during his service in South Korea at Camp Carroll. The JSRRC was to consider the Veteran’s testimony that he moved two boxcars of 55 gallon drums in a warehouse at Camp Carroll, and they were to indicate whether there are any known environmental contamination studies of Camp Carroll, including any investigations as to whether herbicides and/or other chemicals were stored, buried or sprayed at Camp Carroll between 1967-1968. In following the remand directives, the RO has since associated Detroit VAMC records with the claims file, which is further confirmed by a November 2019 VA Memorandum. Correspondence from the RO from June 2019 indicates that the Veteran was contacted regarding the “8,000 page report,” that the report was consolidated into “447 pages of relevant Camp Carroll documents and 10 pages of photographs,” and that they were uploaded to the Veteran’s claims file. The Board has confirmed that those reports have been uploaded. Regarding the JSRRC inquiry, a response was given to the RO’s inquiry in March 2020. The JSRRC indicated that they were “unable to locate 1967-1968 unit histories submitted by the U.S. Army Camp Carroll Depot,” but that a station list documents the area of Camp Carroll in Waegwan, Korea. They concluded that “the chronology does not document the use, storage, spraying, or transporting of tactical herbicides to include Agent Orange.” There is no indication that the Veteran’s lay statements, his testimony, nor his MOS of supply clerk were considered when the response was provided. Furthermore, there is no mention of any known environmental contamination studies of Camp Carroll, nor any investigations as to whether herbicides and/or other chemicals were stored, buried or sprayed at Camp Carroll between 1967-1968. Since that JSRRC inquiry had been received in March 2020 however, the Veteran, through his Attorney, has submitted extensive evidence regarding potential herbicide use at Camp Carroll. The Veteran’s claims file now includes environmental impact studies, water treatment investigations, photographs of the Camp Carroll installation, testimony from other Veterans which discusses efforts to store and eventually bury 55-gallon drums of herbicides, U.S. Army memorandums on a Camp Carroll Groundwater Investigation from November 1992, and news reports, among other documents. Importantly, this information was included within the Veteran’s claims file after the March 2020 JSRRC response. Having said that, the JSRRC was specifically instructed to address any known environmental contamination studies and/or any investigations related to herbicide use of Camp Carroll. That discussion did not take place. The JSRRC was also to consider the Veteran’s lay statements and testimony that, given his MOS of supply clerk, he was charged with transporting 55-gallon drums of herbicides. That also was not mentioned. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The RO is requested to again contact the JSRRC, or any other appropriate service department agency, to assess if it is at least as likely as not that the Veteran may have been exposed to herbicides while stationed at Camp Carroll, in the Republic of Korea. The JSRRC is specifically directed to consider the Veteran’s lay statements, his testimony, his MOS of supply clerk, and the extensive amount of evidence provided by the Veteran’s Attorney regarding environmental contamination studies and/or any investigations related to herbicide use of Camp Carroll. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, and service connection for diabetic retinopathy, both to include as due to diabetes mellitus, type II are each remanded. The Veteran has claimed that his peripheral neuropathy of the bilateral lower extremities, as well as his diabetic retinopathy are each due to his diabetes mellitus, type II. Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As noted above however, the claim for entitlement to service connection for diabetes mellitus, type II, is being remanded herein. Thus, the claims of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities and diabetic retinopathy, each due to diabetes mellitus, type II, are inextricably intertwined with that outstanding claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claims must be remanded pending the development and readjudication of the service connection claims. The matters are REMANDED for the following action: 1. The RO should contact the JSRRC, or any other appropriate service department agency, and request that they determine if it is at least as likely as not that the Veteran was exposed to Agent Orange (and/or other chemicals and compounds listed in 3.307(a)(6)) while stationed in South Korea at Camp Carroll. The JSRRC should consider the Veteran’s lay statements and testimony that he moved two boxcars of 55-gallon drums in a warehouse at Camp Carroll, as part of his MOS of supply clerk. The JSRRC is to specifically address the environmental contamination studies and/or investigations related to whether herbicides and/or other chemicals were stored, buried or sprayed at Camp Carroll between 1967-1968. The JSRRC is reminded that several investigations, reports and studies have been uploaded to the Veteran’s claims file. 2. When the development requested has been completed, the case should be reviewed based on any additional evidence. After conducting any additional development deemed necessary, readjudicate the claims, to include the inextricably intertwined claims. If any benefit sought on appeal is denied, the Veteran and his Attorney should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.