Citation Nr: 21032787 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 13-25 541 DATE: May 28, 2021 ORDER Service connection for diabetes mellitus, type II, is granted. REMANDED Service connection for a kidney disorder, including kidney cancer, is remanded. Service connection for a lung disorder, including lung nodule, is remanded. FINDING OF FACT The Veteran's diabetes is presumed related to in-service exposure to herbicide agents at Fort Detrick. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus (diabetes) have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 to January 1968. These matters were previously remanded by the Board in August 2017 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of this appeal, the Veteran offered relevant testimony during three hearings (in October 2016, April 2018, and February 2020). Transcripts of these proceedings have been associated with the record. As the above hearings were presided over by three separate Veterans Law Judges (VLJs), the appeals will be adjudicated as a panel decision herein. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Service Connection The Veteran is currently pursuing direct service connection for diabetes mellitus. The Board will limit its analysis accordingly. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As to the first element, the Veteran's history of diabetes is well-established by the record. A September 2016 private treatment letter indicates that the Veteran was diagnosed with type II diabetes mellitus "several years ago" and requires ongoing treatment. This diagnosis was confirmed by a June 2018 VA examiner, and is otherwise noted throughout VA and private treatment records spanning the period on appeal. Thus, the first element of direct service connection has been met. As to the second element, the Veteran partly asserts that he was exposed to Agent Orange during service at Fort Detrick. Specifically, he reports that herbicide agents were produced and tested at a chemical plant located on base during his period of service. Testing sites included outdoor locations, which contaminated the soil and water supplies. Given the location of the testing sites, the Veteran also had to routinely cross these properties to access other parts of the base. As an initial matter, the Veteran's testimony is competent and credible evidence in support of this appeal. Generally, a veteran is competent to report events capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran's testimony is well-documented and consistent throughout the record, with no significant deviations observed at any time. Miller v. Wilkie, 32 Vet. App. 249 (2020); see, e.g., BVA transcripts dated October 2016, April 2018, and February 2020; lay statements dated January 2010, April 2010, June 2011, and January 2017. There is also no evidence of record which tends to directly contradict the Veteran's recollections. Rather, there is a significant body of evidence which supports the Veteran's reporting. Service personnel records (SPRs) confirm his assignment to Ft. Detrick from approximately August 1966 to January 1968. The claims file also contains multiple studies and reports which substantiate, at a minimum, that herbicide agents were tested at Ft. Detrick during the Veteran's period of service there. See, e.g., A Reporter at Large: Defoliation, dated February 1979 (noting that the testing of herbicide agents was "going forward very actively" at Ft. Detrick from 1941 until the present); Attachment: Summary of Available Information on Use, Testing, and Storage of Dioxin Containing Herbicides, dated September 2003 (identifying numerous special reports which document the testing of herbicide agents at Ft. Detrick, including during the Veteran's period of service); Preliminary Archives Search Report Findings for Use/Testing of 2,4,5-T Compounds, Fort Detrick, dated October 2010 ("Fort Detrick conducted anti-crop research with BW agents as well as chemical herbicides and defoliants" from 1942 to 1977; studies subsequently showed soil contamination at these sites); United States Environmental Protection Agency: Fort Detrick Federal Facility Agreement, dated December 2010 (noting that anticrop research, including the use of herbicide agents, was conducted at Ft. Detrick until 1973; waste pits were also utilized for herbicide agents from the early 1950s until approximately 1972); Memorandum for the Record, dated April 2013 (confirming that testing and evaluation of tactical herbicides were conducted at Ft. Detrick); Archives Search Report Operational History for Potential Environmental Releases, received in October 2016 (noting that anticrop research began at Ft. Detrick in October 1943, including the use of herbicides, and herbicide disposal pits were utilized in 1970-1971); Archives Search Report Herbicide Testing at Fort Detrick, received in October 2016 (logging the dates that herbicide agents were tested at Ft. Detrick, including during the Veteran's period of service there); see also Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). In contrast, the Board's August 2017 remand references a July 2010 National Personnel Records Center communication which reports no records of herbicide exposure for this Veteran; of note, the July 2010 response cannot currently be located in the claims file. Nonetheless, the matter was remanded for additional development as to the purported exposure. Such information was subsequently requested from VA's Compensation Service at the Agent Orange Mailbox. In an November 2017 electronic communication, it was noted that commercial herbicides were used at military bases worldwide. Further, a lab at Ft. Detrick coordinated the development of Agent Orange and other herbicides during the Vietnam War. However, only small-scale experiments were conducted on base, with large-scale experiments being conducted at offsite locations: "Any Veteran claiming [Agent Orange] exposure at Fort Detrick would need to provide evidence of working specifically on tactical herbicide projects because many other experimental projects were also being conducted there." As such, the matter was referred for further research. In May 2018, the Defense Personnel Records Information Retrieval System (DPRIS) reported that 1966 unit records were unavailable, such that the Veteran's purported exposure could not be documented. The above evidence weighs heavily in favor of the Veteran. As previously indicated, he has offered competent and credible testimony regarding the nature of his purported exposure throughout the period on appeal. The claims file also contains numerous government studies which directly confirm that herbicide agents were coordinated and tested at Ft. Detrick during the Veteran's period of service. Although the November 2017 and May 2018 communications weigh against the claim, the former does not identify the dates of onsite testing at Ft. Detrick or assess the likelihood that a veteran would have been exposed to herbicide agents under those circumstances reported here. As to the latter, the DPRIS response only searched for base records spanning April to October 1966, despite the Veteran's extended presence on base. Moreover, this opinion does not directly establish that the Veteran was not exposed to herbicide agents during serviceonly that the purported exposure could not be confirmed. In cases for veterans benefits, the standard of proof only requires that the evidence be at least evenly balanced in order to make a finding of fact in favor of the claimant. Here, resolving any reasonable doubt in favor of the claimant, the Board finds that the Veteran was exposed to herbicide agents during his service at Fort Detrick. This finding is specific to this Veteran, based on the facts presented and the research performed by his attorney; this finding should not be read as a blanket statement regarding such exposure for other claimants or to bind VA as to any specific policy for similarly situated claimants. Accordingly, the purported exposure is hereby conceded, and the second element of direct service connection met. Such a finding is dispositive in this case, as certain diseases are presumed to have been incurred in-service if they manifest to a compensable degree within specified periods, and even if there is no record of such diseases during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As type II diabetes is one such disease, the appeal succeeds on a presumptive basis. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. The record currently contains two nexus opinions for consideration: a positive October 2012 private nexus opinion, and a negative June 2018 VA nexus opinion. However, neither examiner offered a rationale in support of their opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, a remand is now warranted such that an addendum opinion, accompanied by a detailed rationale, may be obtained. The matters are REMANDED for the following action: Obtain an opinion addressing the questions below. If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate. Schedule an in-person examination only if deemed necessary to answer the questions below. The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred. In particular, the examiner should offer opinions as to the following: (1) Identify all kidney and lung disorders demonstrated by the Veteran during the period on appeal. In doing so, clarify whether the Veteran's lung nodules constitute respiratory cancer. (2) For each disorder, opine as to whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, including in-service exposure to herbicide agents at Ft. Detrick? Here, the examiner is advised that the Veteran's exposure has been conceded herein. The examiner must explicitly address the October 2012 private treatment letter suggestive of a nexus in this case. In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. [CONTINUED ON NEXT PAGE] A complete rationale must be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.