Citation Nr: 21027365 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-28 376 DATE: May 5, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1968 to November 1972, and from January 1973 to March 1978. During his periods of service, he earned the Air Force Longevity Service Award with one (1) Oak Leaf Cluster, National Defense Service Medal, Air Force Good Conduct Medal, Vietnam Service Medal, and Small Arms Expert Marksmanship Badge. The issue of entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected pes planus, was previously before the Board in September 2019. In that decision, the Board denied entitlement to service connection. In a September 2020 Joint Motion for Remand (Joint Motion), the United States Court of Appeals for Veterans Claims (Court) indicated that the Board erred by failing to ensure satisfaction of VA's duty to assist, and by providing an inadequate statement of reasons or bases to support its decision. The parties agreed that the Board's decision finding that Veteran was not entitled to service connection for diabetes mellitus, type II, should be vacated and the matter remanded to the Board for actions consistent with the Joint Motion. In October 2016, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer with the Board. A transcript of the hearing is of record. In a February 2021 letter, VA advised the Veteran of his right to testify at a hearing before a different Veterans Law Judge who would decide the claim. In March 2021, the Veteran verified that he did not wish to appear at another Board hearing. Hence, under 38 C.F.R. § 19.3(b), this appeal may be reassigned to another Veterans Law Judge for a decision. Entitlement to service connection for diabetes mellitus, type II The Veteran contends that he is entitled to service connection for diabetes mellitus, type II, as due to in-service herbicide exposure; or, in the alternative, as secondary to service-connected pes planus. For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, to include Agent Orange, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). Here, the Veteran does not contend that he served in the Republic of Vietnam, but instead had a period of foreign service in Thailand. As for Agent Orange exposure in Thailand, VA's Adjudication Procedures Manual (Manual) indicates that special consideration of herbicide exposure on a factual basis should be extended to certain Veterans whose duties placed them on or near the perimeters of Thailand military bases. See VA Adjudication Manual, M21-1MR, part IV, subpart ii, 1.H.5.b. The Manual indicates that herbicide exposure on a factual basis should be conceded for Veterans of either the United States Air Force or the United States Army who served at one of several Royal Thai Air Force Bases, and who served as a security policeman, security patrol dog handler, member of the security police squadron, or were otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. Here, the Veteran contends that he was exposed to herbicide agents during service while stationed at the Royal Thai Air Force Base in Nakhon Phanom, Thailand from August 1970 to August 1971. In lay statements associated with the record, the Veteran indicated that he was assigned to patrol the perimeter outside the base with a military policeman, as well as on the flight line. The Veteran also testified at his May 2015 Board hearing that he served on a special unit performing guard duty near the inside perimeter of the base. While available military personnel records confirm that the Veteran was stationed as Nakhon Phanom RTAFB, his DD-214 reflects that the Veteran's military occupational specialty (MOS) was administration specialist. His airmen performance reports dated throughout his period of service in Thailand establish that his duties were administrative and clerical in nature and provide no mention of guard duty along or near the inside perimeter of the base. Additionally, all other personnel records documenting the Veteran's assignment, duties, and training while in Thailand are negative for any indication that he served on or near the perimeter of the base. However, as noted in the September 2020 Joint Motion, it was unclear whether the Veteran's complete service personnel file, to include records pertaining to his period of service in Thailand, was requested in connection with adjudicating the claim. As these records may contain information pertinent to the Veteran's claim, to include information to corroborate his alleged in-service exposure to herbicide agents, a remand is warranted to obtain and associate a complete copy of the Veteran's service personnel record with the claims file. Further, the Veteran contends that his diabetes mellitus, type II, is secondary to his service-connected pes planus. Specifically, the Veteran contends that his service-connected pes planus is directly related to his obesity, which is directly related to his diabetes. Here, the examination findings of records appear to be contradictory, and thus, require clarification. In this regard, during his September 2011 VA flatfoot examination, the examiner noted pain that was accentuated on use and manipulation of the left foot. Upon examination in June 2014, the Veteran reported pain in the inner aspect of the left foot on weightbearing. He further reported that he was able to walk two to three city blocks before stopping due to severe pain. He can climb one flight of stairs, but cannot walk fast, jog or run. The examiner noted pain that was accentuated on use and manipulation of the left foot, as well as characteristic calluses bilaterally. The Veteran most recently appeared for a VA diabetes mellitus examination in November 2016. The examiner opined that was less likely than not that the Veteran's diabetes mellitus was caused or aggravated by his service-connected pes planus. In so finding, the examiner explained that the Veteran worked as a supervisor for the U. S. Postal Service after his discharge from service, and as a part-time special education teacher for a school district after retiring. He noted the Veteran's report of walking an average of three miles per day to 15 miles per week; thus, he stated that it was unlikely that the Veteran's pes planus aggravated his diabetes mellitus due to limited physical activity. While the November 2016 VA examiner provided substantially different findings as to the severity of Veteran's service-connected pes planus than what was reported in the prior VA examinations, the examiner did not provide any discussion to reconcile the differing findings. Moreover, the examiner did not provide an opinion as to the etiology of the Veteran's obesity. The Board notes that obesity is not recognized by VA as a disease or disability for compensation purposes; however, obesity may serve as an intermediate step when considering secondary service connection under 38C.F.R. §3.310. See VAOPGCPREC 1-2017. In Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020), the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Accordingly, a remand is warranted to determine whether the Veteran's diabetes mellitus was caused or aggravated by his service-connected pes planus, to include whether the Veteran's obesity was an intermediate step to establish proximate causation between his diabetes mellitus and service-connected pes planus. The matters are REMANDED for the following action: 1. Obtain and associate the Veteran's entire service personnel record, to include all records pertaining to his period of service in Thailand, with claims file. 2. Conduct all necessary development regarding the Veteran's alleged exposure to herbicide agents while stationed at the Nakhon Phanom RTAFB, noting his lay statements regarding proximity to the perimeter and flight line. Specifically, the case should be referred to the Joint Service Records Research Center (JSRRC) Coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist or that sufficient information exists to determine that exposure to herbicides can be acknowledged on a direct or facts-found basis. 3. After any additional records are associated with the claims file and evidentiary development for herbicide agent exposure is completed, schedule the Veteran for an examination with the appropriate medical examiner to determine the nature and etiology of his diabetes mellitus, to include as due to herbicide exposure. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. All tests and studies deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's diabetes mellitus had its onset in service or is otherwise etiologically related to active service, to include exposure to herbicide agents? In providing the opinion, the examiner must elicit from the Veteran a full and complete history of his active service, including his daily work duties while stationed at the Nakhon Phanom RTAFB in Thailand. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's diabetes mellitus is caused or aggravated by his service-connected pes planus? In providing this opinion, the examiner should address the theory that obesity is an intermediate step between diabetes mellitus and service-connected pes planus. Thus, the examiner should address: i. whether the Veteran's service-connected pes planus (1.) caused the Veteran to become obese or (2.) aggravated the Veteran's obesity? Both causation and aggravation must be addressed. ii. if so, whether obesity was a substantial factor in causing the Veteran's diabetes mellitus? iii. whether the Veteran's diabetes mellitus would not have occurred but for obesity caused or aggravated by the service-connected pes planus? In providing the opinions, the examiner should attempt to reconcile November 2016 diabetes mellitus examination findings that the Veteran walked an average of three miles per day to 15 miles per week, with findings from the September 2011 and June 2014 VA examination reports, finding pain on use and manipulation, as well as walking distance limited to two or three city blocks due to pain. The examiner should also consider all lay statements submitted by the Veteran regarding his disability, to include his May 2015 testimony that his service-connected pes planus "caught up [with him] because the weight caught on and [his] ankles started swelling." See May 2015 hearing transcript. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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 that particular question(s). 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 271. Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.