Citation Nr: 21031110 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-49 978A DATE: May 20, 2021 REMANDED Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to November 1970 and January 1971 to November 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2019, the Veteran presented sworn testimony before the undersigned Veterans Law Judge at a Board videoconference hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. Although the Board sincerely regrets the additional delay, all claims currently on appeal must be remanded to the RO for further evidentiary development to ensure that the Veteran's appeal has been afforded every consideration. 1. Entitlement to service connection for type II diabetes mellitus is remanded. 2. Entitlement to service connection for prostate cancer is remanded. In the October 2016 VA form 9, Substantive Appeal, and at the October 2019 Board hearing, the Veteran alleged that his type II diabetes mellitus and prostate cancer with residuals were the result of exposure to herbicide agents while serving in the Republic of Vietnam or in/near the Korean Demilitarized Zone (DMZ). In the Substantive Appeal, the Veteran also vaguely asserted his conditions could be due to alleged service in Saudi Arabia during Desert Shield and Desert Storm. Initially, the Board notes that the Veteran was previously denied entitlement to service connection for prostate cancer in a final and unappealed June 2007 rating decision. Likewise, the Veteran was previously denied entitlement to service connection for type II diabetes mellitus in a February 2015 rating decision. Subsequent to these rating decisions, the RO submitted a June 2015 request for service department records, and additional relevant service department records, which were in existence but unavailable at the time of the June 2007 and February 2015 rating decisions, were received. As such, the claims shall be reconsidered on a de novo basis pursuant to 38 C.F.R. § 3.156(c). The record affirmatively establishes the presence of type II diabetes mellitus and prostate cancer residuals within the appellate period. In May 2003, the Veteran had elevated prostate-specific antigen levels and a biopsy revealed malignancy. The Veteran was treated with radiation therapy, and as of September 2014, his prostate cancer condition was stable and without recurrence. He continued to utilize medication to treat lower urinary tract symptoms. Test results from October 2014 showed a second reading of elevated HgA1C sufficient for a clinical diagnosis of type II diabetes mellitus. Both type II diabetes mellitus and prostate cancers are disabilities presumed to have been caused by in-service exposure to herbicide agents, if the disabilities manifest to a degree of 10 percent or more after service, and the Veteran served during active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ during the period beginning on September 1, 1967, and ending on August 31, 1971. See 38 C.F.R. §§ 3.307(a)(6)(ii)-(iv), 3.309(e); 38 U.S.C. § 1116, 1116B. (Note: 38 C.F.R. § 3.307(a)(6)(iv) has not been updated to reflect the liberalizing law of 38 U.S.C. § 1116B, which became effective on January 1, 2020). At the October 2019 Board hearing, the Veteran testified that he traveled to the Republic of Vietnam on three separate occasions during his initial period of service to transport prisoners. At an August 2006 VA examination, the Veteran reported that he served in the Republic of Vietnam on three different occasionsone for a 10-day period of time, another for a 3-day period of time, and a third time for a period of 40 dayssometime between 1968 and 1970 while escorting prisoners. The Veteran's service treatment records do not show in-service complaints or treatment for type II diabetes mellitus or prostate cancer, and the Veteran's service department records do not confirm any service in the Republic of Vietnam or exposure to herbicide agents. The RO is requested to contact the Veteran and request that he provide more specific information regarding his alleged service in the Republic of Vietnam, such as specific dates, locations, and/or his military unit. If enough information is received to allow for a meaningful research of archived records, the RO is requested to contact the Joint Services Records Research Center (JSRRC), or other appropriate government records repositories, and attempt to verify the Veteran's allegation of in-country service in the Republic of Vietnam between 1968 and 1970. Additionally, the Veteran has alleged that he served in or near the Korean DMZ during his initial period of service, which has not yet been confirmed. At the Board hearing, he alleged that he served in an artillery unit with the 2nd Infantry Division at Camp Stanley. The Veteran's service department records confirm that the Veteran served in Korea from October 1966 to March 1968 and from November 1970 to November 1974, although it is not confirmed that he served in or near the Korean DMZ during this time period. Army Post Office box information (APO 96571) suggests that the Veteran served near Seoul, Korea during some portion of this time period. Additionally, service department records confirm later service at Camp Stanley, Korea in 1975 and 1976. As the dates of the Veteran's Korean service during the known period of Korean DMZ herbicide agent use have been established, the Board finds that the claims must be remanded for a records repository search of whether the Veteran or his unit were in or near the Korean DMZ during the time period beginning on September 1, 1967, and ending on August 31, 1971. Lastly, the Veteran has vaguely asserted that his type II diabetes mellitus and prostate cancer and associated residuals may qualify as undiagnosed illnesses or medically unexplained chronic multisymptom illnesses (MUCMI) pursuant to 38 C.F.R. § 3.317 due to unverified service in Saudi Arabia during Desert Shield and Desert Storm. While such service has not been verified, presumptive service connection under 38 C.F.R. § 3.317 is not for application for these disabilities. Both type II diabetes mellitus and prostate cancer have been clinically diagnosed based on history, physical examination, and laboratory testing; thus they are not undiagnosed illnesses. By regulation, diabetes mellitus is not a MUCMI as it has a partially understood etiology or pathophysiology. See 38 C.F.R. § 3.317(a)(2)(ii). Furthermore, prostate cancer is not a MUCMI because it has a partially understood etiology or pathophysiology. Id.; See also National Academy of Sciences (NAS), Veterans and Agent Orange, Update 11 (2018), p. 292 (stating prostate cancer is associated with factors such as occupational heavy metal exposure, Western diets, and certain vitamin supplements); see also Euzebio v. McDonough, 989 F.3d 1305 (2021) (NAS Agent Orange update is constructively of record since it is relevant and reasonably connected to the Veteran's claim). As such, the Board finds no additional evidentiary development is warranted in relation to this theory of entitlement. [Continued on Next Page] 3. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. 4. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. The Veteran seeks entitlement to service connection for bilateral lower extremity peripheral neuropathy claimed as due to alleged in-service herbicide agent exposure and/or secondary to his type II diabetes mellitus. The Board has fully reviewed the record but finds no probative evidence establishing that the Veteran has been diagnosed with peripheral neuropathy or any other clinically significant neurological disabilities affecting the lower extremities during the appellate period. In fact, the results of an electromyogram conducted in June 2015 showed no definite electrodiagnostic evidence of peripheral neuropathy in the lower extremities or right lumbosacral radiculopathy or plexopathy. Nevertheless, at the October 2019 Board hearing, the Veteran implied that he suffered from a lower extremity neurological disability. The electronic claims file shows that VA treatment records since August 2015 have not been obtained. Additionally, there is evidence that the Veteran treats with multiple private, Non-VA health providers, to include primary care physician Dr. V and urologist Dr. F. Granting the Veteran the benefit of the doubt, the Board shall remand these claims to obtain these outstanding treatment records, which may show the presence of a current bilateral lower extremity neurological disability during the appellate period. A review of the October 2019 Board hearing transcript suggests that the Veteran submitted additional evidence for consideration on the date of the hearing, however nothing has been associated with the record in this regard. Upon remand, the RO is requested to contact the Veteran and clarify whether he submitted any documents at the October 2019 Board hearing, and if so, they are requested to obtain an additional copy for the electronic claims file. The Board notes that early-onset peripheral neuropathy is a condition eligible for presumptive service connection due to herbicide agent exposure under 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307(a)(6) and 3.309(e), only if it manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent while in service. While in-service exposure to herbicide agents remains unverified, the Veteran's service treatment records do not contain any evidence showing symptoms, complaints, or diagnoses of peripheral neuropathy in either lower extremity during his active duty service. ONLY IF the outstanding private and VA treatment records confirm a current diagnosis of left and/or right lower extremity neurological disability AND in-service exposure to herbicide agents is confirmed, should a VA examination be obtained to determine whether the Veteran's disability is etiologically related to his in-service herbicide agent exposure and/or secondary to his type II diabetes mellitus under 38 C.F.R. § 3.310. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2015 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for the records of any relevant private health care providers, to include Dr. V and Dr. F. If such authorization is provided, make two requests for the authorized records from the identified private health care providers unless it is clear after the first request that a second request would be futile. 3. Contact the Veteran and clarify whether he submitted any additional evidence at his October 2019 Board hearing. If so, request that he resubmit that evidence to be included in the electronic claims file. 4. Contact the Veteran and request that he provide specific information regarding his claimed in-service exposure to herbicide agents during his alleged in-country service in the Republic of Vietnam, to include specific date ranges, particular locations, and/or military unit assignments. ONLY IF additional information is provided and will allow for a meaningful search of archived records, should the RO send a request to the JSRRC, or any other appropriate records repository, to research and attempt to verify the Veteran's claimed in-country service in the Republic of Vietnam. If there is insufficient information to allow for a meaningful search of appropriate record repositories, or such research produces negative results, the RO is requested to issue a formal finding with adequate notice to the Veteran and his representative. 5. Send a request to the JSRRC, or any other appropriate records repository, to research whether the Veteran or his unit served in or near the Korean DMZ during the time period beginning on September 1, 1967, and ending on August 31, 1971. If such research produces negative results, the RO is requested to issue a formal finding with adequate notice to the Veteran and his representative. 6. ONLY IF the private and VA treatment records received in response to directives (1) and (2) above confirm a diagnosis of left and/or right lower extremity neurological disability AND in-service exposure to herbicide agents is confirmed, should a VA medical opinion be obtained regarding the etiology of such disabilities. Following a complete review of the electronic claims file, an appropriate VA examiner should opine on the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left and/or right lower extremity neurological disability is etiologically related to the Veteran's active duty service, to include in-service exposure to herbicide agents? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left and/or right lower extremity neurological disability is proximately due to or the result of the Veteran's type II diabetes mellitus? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left and/or right lower extremity neurological disability underwent any aggravation (i.e., any incremental increase in disability, regardless of its permanence) due to the Veteran's type II diabetes mellitus? For question 6(c), the term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. [Continued on Next Page] The VA examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience and medical expertise; established medical principles; and citation to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante 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.