Citation Nr: 22013239 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-57 539 DATE: March 9, 2022 REMANDED Entitlement to service connection for a heart disorder, to include coronary artery disease (CAD), is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from June 1990 to September 1990, and from January 1991 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In an April 2020 decision, the Board denied entitlement to service connection for a heart disorder and for diabetes mellitus, type II. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court granted a March 2021 Joint Motion for Remand (JMR), returning the issues to the Board. The Board remanded the case in September 2021 for action consistent with the terms of the JMR. The matter now returns for further appellate review. Unfortunately, remand is warranted for additional inquiry into the claims for service connection for a cardiac disorder, to include CAD, and for diabetes mellitus, type II. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As an initial matter, the Veteran was advised in March 2014, that his complete service treatment records could not be located. Where service records are destroyed or missing, VA has a heightened duty to assist a Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit of the doubt rule. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board is still, however, required to determine whether the balance of the evidence is in favor of the claim before a claim can be granted. 1. Entitlement to service connection for a heart disorder, to include CAD, is remanded. 2. Entitlement to service connection for diabetes mellitus, type II is remanded. The Veteran seeks service connection for a heart disorder, to include CAD, and for diabetes mellitus, type II, which he contends was caused by his in-service exposure to herbicide agents and/or other toxins while he was stationed at Fort McClellan, Alabama. The Veteran's DD-214 confirms his service at Fort McClellan during his period of active service from June 1990 to September 1990. Additionally, the Veteran's April 2017 Affidavit indicates that he "spent a lot of time all over the base," "spent a lot of time at the firing ranges, to include Pelham range for weapons training and field exercises," and that during boot camp, he was required to participate in physical training every morning, "which involved spending a lot of time in the woods, mud, dirt, and rain." The Veteran further reported that he spent "one week in a bivouac located in the woods near creeks and streams," and that he had to "march a few miles every day on right of ways, in the road, in the fields, and through the woods and nearby creeks and streams." He reported that he was at times "responsible for cleaning up outside, raking leaves in the grass as well as policing around the main post," and that he "went into Anniston" where he would "spend a lot of time outside and would explore the town for outdoor recreation and go out to eat at local restaurants." It is through these instances that the Veteran claims he was exposed to herbicide agents and/or other toxins. At the outset, the Board notes that the Veteran's claims hinge on whether he was exposed to qualifying herbicide agents and/or other toxins in service. In the March 2021 JMR, the parties agreed that the Board failed to adequately explain its finding that the Veteran was not exposed to chemicals during service. The Board notes that "herbicide agents" is statutorily defined as "a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram." 38 C.F.R. § 3.307(a)(6)(i). The Veteran has submitted a report titled "Likelihood of exposure to herbicide agents used in the Vietnam War by Veterans who served on Fort McClellan in Anniston, AL" authored by H.M., Ph.D., a report titled "Combined Environmental Exposure Report" prepared by the Veteran's representative, and other argument supported by medical treatises regarding the military use of herbicide agents and/or other toxins similar to those used in Vietnam, generally at Fort McClellan and in the city of Anniston, Alabama. Here, the April 2020 Board decision references multiple efforts previously undertaken by the AOJ to verify the Veteran's exposure to qualifying herbicide agents and/or other toxins during his service at Fort McClellan. However, given the necessity of a remand, as discussed below, the Board finds the AOJ should undertake additional development regarding the Veteran's alleged exposure to herbicide agents and/or other toxins during his service at Fort McClellan from June 1990 to September 1990, while performing his duties on the base. The reports and the argument citing to medical treatises submitted by the Veteran make clear that his contention is that he was exposed to herbicide agents and/or other toxins in the ground or water at Fort McClellan and/or in the city of Anniston, Alabama during his period of service there. In this regard, Dr. H.M. states in her report that it was her professional opinion as a weed scientist that it is more likely than not, and even to a reasonable degree of certainty, that those serving and/or living at Fort McClellan between 1974-1976 were exposed to the herbicide agents and/or toxins similar to the ones used in Vietnam and discussed within her report. While Dr. H.M.'s opinion is limited to a date range prior to when the Veteran served at Fort McClellan, an October 2017 report prepared by the Veteran's representative cites to a study indicating that in 1991, soil samples along the eastern perimeter of Fort McClellan's Pelham range tested positive for polychlorinated biphenyls (PCBs). Additionally, while the reports and opinion submitted by the Veteran shed light on the use of herbicide agents and/or other toxins at Fort McClellan and in the city of Anniston, Alabama generally, the mere presence of toxins is insufficient to establish that the Veteran was exposed to those toxins without any discussion of the likely nature of the Veteran's specific exposures. In this regard, an addendum VA medical opinion was obtained in November 2021. The examiner stated that it is outside her scope to comment on whether the Veteran was actually exposed to herbicide agents while stationed at Fort McClellan. The examiner, however, indicated the Veteran had a "very strong family history of cardiovascular disease" and that the Veteran was "diagnosed with type II diabetes in approximately 2005, when his BMI was over 35." The examiner explained that studies have consistently shown that obesity, particularly in younger individuals, substantially increases the lifetime risk of developing diabetes and cardiovascular disease. The examiner, therefore, found that when consideration is given to the potential level of exposure to PCBs or other associated chemicals the Veteran experienced based on theoretical indirect exposure over the 84-day period in question, any potential role this exposure may have played "pales in significance" to the roles played by Veteran's known and medically recognized risk factors of family history and obesity. See November 2021 addendum VA medical opinion. The Board finds that the November 2021 addendum VA medical opinion provides only minimal probative weight. The examiner did not discuss whether the Veteran's exposure to herbicide agents and/or other toxins contributed to his cardiac disorder and/or diabetes, instead finding the risk between such in-service exposures and his cardiac disorder and diabetes "pales" in comparison to family history and obesity. Additionally, the examiner did not address the Veteran's April 2017 Affidavit wherein he reported that he had been told by his doctor that the diabetes he has is not the autoimmune type and is not related to weight or eating habits. Thus, an addendum opinion must be obtained from an appropriate professional to address the further question of whether the Veteran's cardiac disorder, to include CAD and/or diabetes mellitus, type II can be attributed to such in-service exposure to herbicide agents and/or other toxins during his service at Fort McClellan from June 1990 to September 1990. The matters are REMANDED for the following actions: 1. Furnish the available information with respect to the approximate dates, locations, and nature of the Veteran's alleged exposure to herbicide agents and/or other toxins to the Compensation Service with a request to review the DoD's inventory of herbicide operations to determine whether herbicides agents and/or other toxins noted were used as claimed. Consideration should be given to the Veteran's assertions with respect to his belief that herbicide agents and/or other toxins were present in the ground and water at Fort McClellan during his period of service there. Consideration should also be given to the Combined Environmental Exposure Report submitted for Fort McClellan; the report and opinion of Dr. H.M.; and other medical treatises of record regarding the military's use of herbicide agents and/or other toxins. 2. If the Compensation Service's review does not confirm that herbicide agents and/or toxins were used as alleged, the AOJ should send another request containing the same information to the National Archives and Records Administration (NARA), Fort McClellan, and the U.S. Army for verification of exposure to those herbicide agents and/or other toxins. 3. After the foregoing development has been completed to the extent possible, ask a professional with appropriate expertise to review the record and address the matter of the likely duration, extent, and intensity of each of the exposures in question, as they pertain to the Veteran individually. The final report should contain a list of each of the substances to which exposure is alleged, along with a description of the likely duration, extent, and intensity of each. In so doing, the professional should consider the Combined Environmental Exposure Report for Fort McClellan, the report of Dr. H.M., and the other medical treatises of record regarding the military's use of herbicide agents and/or other toxins. If the professional reviewing the record cannot provide an opinion as to any particular exposure without resort to speculation, he or she must provide an explanation as to why that is so. In so doing, the professional should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing the information sought. 4. Thereafter, arrange to have a VA examiner with appropriate expertise review the record and provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's cardiac disorder, to include coronary artery disease and/or diabetes mellitus, type II, can be attributed to any of the alleged exposures, either alone or in combination. In so doing, the examiner should discuss the medical significance, if any, of Dr. H.M.'s opinion regarding herbicide agent and/or other toxin exposure at Fort McClellan. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. In formulating the opinion, 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. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.