Citation Nr: 22019727 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 18-04 930 DATE: April 2, 2022 REMANDED 1. Entitlement to service connection for type 2 diabetes mellitus, to include as due to exposure to herbicide agents and chemical toxins, is remanded. 2. Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicide agents and chemical toxins, is remanded. 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for sleep apnea, to include as secondary to type 2 diabetes mellitus, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1968 to November 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2015 (that denied, in part, service connection for diabetes mellitus, sleep apnea, and bilateral hearing loss) and November 2015 (that denied service connection for Parkinson's disease) rating decisions. In December 2018, a videoconference hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript is in the record. In April 2019, the case was remanded for further development. In a February 2022 letter, VA informed the Veteran that the VLJ who had presided over the December 2018 hearing had retired and inquired as to whether or not he desired an additional hearing. In March 2022, he responded and indicated that he did not want another Board hearing. An April 2021 rating decision granted service connection for right parotid gland adenoma, and therefore, that issue is no longer before the Board. The Board notes that the Regional Office (RO) has proposed severance of service connection for right parotid gland adenoma, but the process has not been completed (and therefore such issue is not currently before the Board). On review of the record, the Board finds the November 2019 VA hearing loss examination (and November 2020 addendum opinion) received in response to the April 2019 remand request are less than fully responsive to the remand directives, and inadequate for rating purposes, and the development regarding the Veteran's alleged exposure to chemicals and toxic agents was also less than fully responsive to the remand directives, requiring corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 1., 2. Entitlement to service connection for diabetes mellitus and Parkinson's disease. In an August 2014 statement, the Veteran alleged that he was exposed to herbicide agents (particularly Agent Orange) while serving as a doctor at Aberdeen Proving Ground, Edgewood Arsenal. In an April 2016 statement, he asserted that his diabetes mellitus and Parkinson's disease were due to exposure to chemical, biological, and nerve agents such as dioxin and mustard, sarin, and VX gases and other chemicals that were found in the soil and water supplies on the base, such as copper, cyanide, lead, manganese, mercury, trichloroethene, and trichloroethylene, and cited to articles (submitted in September 2015 and April 2016) regarding soil and water contamination at Aberdeen Proving Ground. An October 2017 Defense Personnel Records Information Retrieval System (DPRIS) response notes that they were unable to locate 1970 unit records submitted by Edgewood Arsenal and directed that a request for information be sent to the Chemical and Biological Defense Information Analysis Center (CBIAC), and the Armed Forces Pest Management Board (AFPMB). A memorandum from the Department of Defense, Armed Forces Pest Management Board, dated October 23, 2017, states Herbicide Orange was used during the week of July 14, 1969, to test the effectiveness of defoliants in reducing the risk of ambush of US Navy riverine vessels. Naval Applied Science Laboratory and US Army Limited War Laboratory personnel applied Herbicide Orange to vegetation on the shoreline of Poole's Island, at the southeastern-most corner of the Aberdeen Proving Ground boundary, about 1 mile offshore. The island was off limits due to the presence of unexploded ordnance; no base facilities were located there, and there was no mention of participation by the Wounds Ballistic Research Team, Biomedical Department, or Biophysics Laboratory in the tests. A formal finding regarding the Veteran's alleged exposure to Agent Orange is not found in the record. At the December 2018 videoconference hearing, the Veteran and his spouse testified that he had not been to Poole's Island and did not conduct testing on any samples from Poole's Island. In response to the Board's April 2019 remand directives, in October 2019, VA sent a letter to the Chemical and Biological Defense Information Analysis Center regarding the possibility of the Veteran's exposure. A response was not received. A February 2020 report of general information notes that a representative in the Veteran's Congressman's office contacted VA and suggested that VA did not contact the correct facility regarding the develop for the chemical records. The representative requested that VA contact the U.S. Army Combat Capabilities Development Command Chemical Biological Center (CCDC) and provided detailed contact information to include a mailing address, email addresses, and phone numbers. An October 2020 VA letter to the Veteran notes that VA sent letters to the CCDC in August and September 2020, but no response was received, and it was determined that "the following records cannot be located and therefore are unavailable for review." Subsequently, no other agencies or organizations were contacted. The record does not show adequate development of the Veteran's claim with respect to the alleged exposure to environmental toxins. Specifically, although VA made the above attempts to obtain relevant information regarding the Veteran's alleged exposure to various toxins, the attempts seem to have focused more on records pertaining to his specific exposure (i.e., medical records) rather than researching his possible exposure to numerous chemicals because he served at Aberdeen Proving Ground from 1968-1970. A cursory search for articles regarding Aberdeen Proving Ground/Edgewood Arsenal notes the numerous problems the installation has had regarding chemical contamination for several years. The Environmental Protection Agency (EPA) has produced reports regarding contamination at the site, and in January 2022, the Veteran submitted 388 pages of information regarding contamination information at Aberdeen Proving Ground and an October 2008 Edgewood Area/Aberdeen Proving Ground Five Year Review, thereby confirming that information regarding his asserted possible exposure during service should be readily available. Therefore, the Board finds that the record does not include adequate development or findings regarding his alleged exposures to chemical, biological, and nerve agents such as mustard gas, dioxin, sarin, and VX, and chemicals such as copper, cyanide, lead, manganese, mercury, trichloroethene, and trichloroethylene in service, or adequate development of medical evidence regarding whether diabetes mellitus and Parkinson's disease may be related to exposure to such elements. If exposure to such elements in service is shown, a medical opinion addressing whether any of the claimed disabilities may be related to such exposures would be necessary. 3. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss from noise trauma in service. The record shows that he served as a doctor. At the December 2018 videoconference hearing, he testified that he worked as a researcher at Aberdeen Proving Ground studying the effects of various weapons and projectiles on animals without use of hearing protection. Private and VA medical records confirm he has a bilateral hearing loss disability (as defined in 38 C.F.R. § 3.385). On November 2019 VA hearing loss examination, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was related to his service. She noted that the Veteran's September 1966 service entrance audiometry showed normal hearing bilaterally from 500-6000 Hz and that an audiogram was not completed in conjunction with his Oct 1970 service separation examination. The examiner explained that although the Veteran was a physician who reported noise exposure to weapons in an enclosed space, he did not notice hearing problems until approximately 2015, when he started noticing problems possibly secondary to a parotid tumor. She indicated that the Veteran did not specifically attribute any hearing problems to his service, his service treatment records (STRs) were negative for complaints of ear or hearing issues, and that due to the onset time of symptoms as reported by the Veteran to be 40 years post-military noise exposure, it was less likely than not that there was a link between his military service and his present hearing loss. The RO found the above opinion to be inadequate because the examiner did not provide a likely alternate etiology for the Veteran's hearing loss. In a November 2020 addendum, the provider indicated that her previous opinion was unchanged and that it was her understanding that an audiologist's responsibility was to opine whether a hearing loss was service connected and not to determine the etiology of the hearing loss. She explained that the possibilities of etiology were numerous and that even with a complete, detailed record of his medical and work history from birth, one would not likely be able to identify an etiology with absolute certainty and that she would not attempt to identify the etiology of the Veteran's hearing loss. The Board finds that the opinion is inadequate because it is not responsive to the remand directives and that when the Board requests an etiology opinion, the standard is "more likely than not," rather than identifying an etiology "with absolute certainty." Additionally, the Veteran's claim centers on the fact that he contributes his current hearing loss with noise exposure in service, so it is not clear why the examiner indicated that he did not attribute any hearing problems to his time in service. Therefore, remand is necessary to obtain an adequate medical advisory opinion regarding the etiology of the Veteran's bilateral hearing loss. 4. Entitlement to service connection for sleep apnea. The Veteran claims that his sleep apnea is secondary to diabetes mellitus, for which service connection is sought. Consequently, the sleep apnea claim is inextricably intertwined with the diabetes mellitus issue on appeal, and consideration of the claim of service connection for sleep apnea must be deferred pending resolution of the diabetes mellitus claim. The matters are REMANDED for the following: 1. Arrange for all development in the matter deemed necessary, including obtaining any records available from such sources or repositories to specifically include (but not limited to) the EPA, the Department of the Army, and the chief of the Medical Investigation Department, U.S. Army Biological Center, at Ft. Detrick, Maryland, and after reviewing any records obtained and the documents and lays statements regarding site contamination and the Veteran's alleged exposure, make formal findings for the record regarding the occurrence, nature and extent of the Veteran's asserted exposures to mustard gas, dioxin, sarin, and VX, and other chemicals such as copper, cyanide, lead, manganese, mercury, trichloroethene, and trichloroethylene while stationed at Aberdeen Proving Ground, Edgewood Arsenal between 1968 and 1970. Request that as much information, as possible, be provided that relates to the Veteran's dates of active-duty service, his unit assignment(s), and his accounts of exposure(s) to chemicals or toxins in performing his duties as a medical professional. If, after undertaking all reasonable efforts to verify the Veteran's claimed in-service exposure, there is still insufficient information to verify exposure to such chemicals and/or toxic agents, issue a formal finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service exposure. 2. If, and only if, the Veteran is determined to have been exposed to mustard gas, dioxin, sarin, and VX, and/or other chemicals such as copper, cyanide, lead, manganese, mercury, trichloroethene, and trichloroethylene in service, forward the record to an appropriate physician for review and an advisory medical opinion regarding the likely etiology of his claimed diabetes mellitus and Parkinson's disease. The consulting provider should be advised of what environmental exposures are acknowledged by VA, and should offer an opinion that responds to the following: (a) Identify the likely etiology of the Veteran's:(i) diabetes mellitus; (ii) Parkinson's disease. Is it at least as likely as not (a 50% or greater probability) that such diseases were incurred or aggravated during the Veteran's active service, to include as due to any environmental exposures in service acknowledged by VA? (b) If the opinion is to the effect that the Veteran's diabetes mellitus and/or Parkinson's disease was/were not incurred in service (to include as due to any environmental exposures), identify the etiology considered more likely. All opinions must include rationale. 3. Arrange for the Veteran's record to be forwarded to an audiologist (other than the November 2019 examiner) for review and an advisory medical opinion regarding the likely etiology of his bilateral hearing loss. The entire record must be reviewed by the consulting provider. (a) The provider should opine whether it is at least as likely as not (a 50% or better probability) that the Veteran's current bilateral sensorineural hearing loss is etiologically related to his service, to include as due to his acknowledged exposure to noise therein. (b) If the hearing loss disability is determined to be unrelated to service, identify the etiology for the hearing loss that is considered to be more likely. (c) If an opinion requested cannot be provided without resort to mere speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required (and identification of such needed facts), or the examiner lacks the knowledge or training needed). The provider must include rationale with all opinions. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bayles, James J. 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.