Citation Nr: 21030094 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-07 178 DATE: May 17, 2021 REMANDED Service connection for ischemic heart disease is remanded. Service connection for diabetic neuropathy, left lower extremity is remanded. Service connection for diabetes mellitus is remanded. Service connection for diabetic neuropathy, left upper extremity is remanded. Service connection for kidney condition is remanded. Service connection for diabetic neuropathy, right upper extremity is remanded. Service connection for severe neuropathy is remanded. Service connection for eye condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1956 to September 1958. These matters come before the Board of Veterans' Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the above claimed conditions. The Board issued a decision in July 2020 that denied service connection for ischemic heart disease, diabetes mellitus, diabetic neuropathy of the right and left upper extremities, diabetic neuropathy of the left lower extremity, severe neuropathy, kidney condition, and an eye condition. The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Joint Motion for Remand (JMR) in March 2021. The parties agreed that the Board erred when it did not provide an adequate statement of reasons or bases for its conclusions when it found that the herbicide agents the Veteran may have been exposed to while stationed in Puerto Rico were commercial in nature. The JMR indicated that while the Board noted that "[b]oth 2, 4-D and 2, 4, 5-T were commonly used in commercial herbicides at the time" and found these "chemicals were part of commercial herbicides, not Agent Orange or other 'rainbow agents,'" the relevant statute and regulation did not distinguish between tactical and commercial herbicides. Further, 2, 4-D was mentioned as an herbicide of concern. While the definition of an herbicide agent for purposes of presumptive service connection include places at which it was employed (other than where the Veteran served) and times at which it was employed (other than when the Veteran served), it identifies chemicals. See 38 C.F.R. 3.307(a)(6). The record reflects some of these chemicals were found in commercial herbicides used at the time of the Veteran's service, (and continue to be used). The relevant medical opinions of record to date appear to discuss only Agent Orange as understood in the presumptive service connection regulations. As such, the Board will remand for a clarifying opinion that considers if the Veteran's claimed conditions are at least as likely as not related to any other herbicide exposure between May 1958 and July 1958, that would have included the chemicals 2, 4-D and 2, 4, 5-T. The matters are REMANDED for the following action: 1. Provide an appropriate examiner with the Veteran's claims file. The examiner should review the claims file, including the evidence the Veteran submitted related to herbicide agents and the responses received from Compensation Service detailing the types of herbicide agent used in Puerto Rico. 2. Then, provide a clarifying opinion addressing whether the Veteran's conditions, including ischemic heart disease, diabetes mellitus, diabetic neuropathy of the right and left upper extremities, diabetic neuropathy of the left lower extremity, severe neuropathy, kidney condition, and eye condition, are at least as likely as not (50 percent probability or greater) caused by or otherwise etiologically related to the Veteran's active service, to include his claimed exposure to herbicides between May 1958 and July 1958, that included the chemicals 2, 4-D and 2, 4, 5-T. If the examiner cannot provide the requested opinions without examining or interviewing the Veteran, that should be arranged. 3. The rationale for the opinions expressed should be provided, and if it is not possible to provide the requested opinions, or information, an explanation for that conclusion should be given. (Continued on the next page) 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.