Citation Nr: 22018602 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 20-13 122 DATE: March 29, 2022 REMAND Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus type II is remanded. Entitlement to service connection for obstructive sleep apnea as secondary to diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision and an August 2018 of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey (Agency of Original Jurisdiction (AOJ)). The Veteran and his wife testified at a virtual hearing before the undersigned in July 2021. A transcript of the proceeding is of record. 1. Entitlement to service connection for diabetes mellitus type II is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus type II is remanded. 4. Entitlement to service connection for obstructive sleep apnea as secondary to diabetes mellitus type II is remanded. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran specifically contends that he was exposed to an herbicide as defined by 38°C.F.R. §°3.307(a)(6)(i) - specifically 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. A presumption of service connection for diseases associated with herbicide exposure, such as type II diabetes mellitus, applies to veterans who establish actual exposure to herbicides. See Disease Associated with Exposure to Certain Herbicide Agents: Type 2 Diabetes, 66 Fed. Reg. 23,166, 23,166 (May 8, 2001) (VA explaining that, in adding diabetes mellitus type II to the list of diseases in 38 C.F.R. § 3.309(e), there was "no need to revise the regulation" because any veteran who was exposed to an herbicide agent defined in 38 C.F.R. § 3.307(a)(6) during active military service would be entitled to the presumptions that certain disease are due to herbicide exposure). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends that his diabetes mellitus type II is etiologically related to his active duty service. Specifically, he believes he was exposed to herbicide agents via the duties associated with his military occupational specialty (MOS) as a supply warehouseman. He testified during his July 2021 virtual hearing that he served in Okinawa, Japan between 1966 and 1967 and his primary responsibilities included unloading ships and stock into storage yards. He stated that most of this equipment came from Vietnam and believed it was contaminated by herbicide agents and retrograde materials. He claims that he did not utilize gloves or other protective gear when handling this equipment. The Veteran also contends that his hypertension is due to his exposure to herbicides in service, and that his obstructive sleep apnea and erectile dysfunction are due to his are proximately due to his diabetes mellitus. The Veteran served as a general warehouseman, and was stationed at Camp Lejuene on multiple occasions as well as Camp Hansen, Okinawa with the Supply Company, Supply Battalion, 3rd Force Service Regiment. In support of his claim, the Veteran submitted lay testimony from his fellow servicemembers. A letter provided by J.H.K. recounted how he worked alongside the Veteran handling retrograde materials (herbicide chemicals) and neither man was issued masks, gloves, or clothing to prevent exposure to these chemicals. Another letter from J.D. recorded similar recollections; he recalled handling and transporting vehicles and supplies that had come from Vietnam, exposing them to retrograde materials without any safety precautions or handling instructions. Photographs submitted by the Veteran depict crates of equipment that was reportedly used in Vietnam and shipped back to Okinawa for repairs; he contends these materials were exposed to retrograde contaminants. At the time of submission of the substantive appeal, the Veteran also supplied a February 2018 Environmental Exposure Assessment performed by a Dr. D.M.S. The environmental specialist cited to several military documents describing that retrograde materials were present in Okinawa and regularly handled by military personnel like the Veteran's unit. One such memorandum stated that the U.S. Army "openly stored large amounts of hazardous materials and hazardous wastes along the shoreline of Camp Kinser." Other materials, including retrograde pesticides and herbicides from Vietnam were allegedly also stored at Camp Kinser. It was indicated that the Veteran's exposures from contaminants returning from the combat theatre included polycyclic, aromatic hydrocarbons (PAHs), oils, grease and metallic elements such as arsenic, lead, cadmium and mercury. The expert also cited the contaminants known to have existed at Camp Lejeune. With respect to herbicides, the expert cited a report from the National Academy of Sciences stating that, once TCDD penetrates a surface (e.g., canvas gear, cloths, paints, any porous surfaces), it can remain stationary for an indefinite period of time (i.e., years). The examiner concluded that "it would have been impossible" for the Veteran not to have been exposed. The expert also referred to other documents in asserting that herbicides were actually stored in Okinawa. The expert opined that the Veteran's diabetes was caused by his exposure to herbicides. Other examiners have opined that the Veteran's hypertension is due to his herbicide exposure, and that the Veteran's erectile dysfunction and obstructive sleep apnea are proximately due to diabetes mellitus. On review of the record, the Veteran has provided an expert opinion that herbicides were present in Okinawa either via shipment of retrograde materials from Vietnam or actual storage of herbicides in Okinawa. Currently, VA has not determined that herbicides were present in Okinawa. Notably, the expert referenced multiple source documents which are not associated with the claims folder that are pertinent to determining the accuracy of the expert opinion. On this record, the Board finds that further development is necessary to determine whether the Veteran was, in fact, exposed to herbicides in service. Accordingly, these matters are REMANDED for the following: 1. The AOJ should request the Veteran to submit for the record all documents referenced in the February 2018 opinion section entitled "Sources of Herbicides and Agent Orange Chemicals, and additional Contaminants..." that refers documents suggesting that actual herbicides were being stored in Okinawa, and any other pertinent source documents tending to show that the Veteran was actually exposed to an herbicide in Okinawa. 2. The AOJ should forward to the appropriate entity a copy of the February 2018 expert report and request verification as to whether herbicides were present at Okinawa in 1966 and 1967 as asserted in the section entitled "Sources of Herbicides and Agent Orange Chemicals, and additional Contaminants..." 3. The AOJ should obtain the following: unit records for Supply Company, Supply Battalion, 3rd Force Service Regiment for the time period from August 1966 to September 1967 as well as unit records for the Unserviceable Stock Platoon; and the declassified "Organizational Summary for the Supply Company dated February 8, 1967" which discusses the unloading and receiving of materials by the Unserviceable Stock Platoon. 4. The AOJ should seek to obtain an opinion from an environmental toxicologist as to whether there is a nearly equal chance or greater that retrograde materials shipped from the Republic of Vietnam to Okinawa from August 1966 to September 1967 would contained residual contamination 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram? The examiner's attention is directed towards the February 2018 opinion (see Medical Treatment Record Non-Government Facility received March 13, 2020) which refers to the following: military documents discussing retrograde military shipments; a reference to a National Academy of Sciences report stating that, once TCDD penetrates a surfaces such as canvas gear, cloths, paints and any porous surface, it can remain stationary for an indefinite period of time (i.e. years); and the section entitled "Sources of Herbicides and Agent Orange Chemicals, and additional Contaminants..." that refers to documents regarding stating that herbicides were being stored in Okinawa. If the toxicologist disagrees with the February 2018 assessment that "it would have been impossible" for the Veteran not to have been exposed to residual herbicide exposure, the toxicologist should fully explain the basis for that determination. I. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.