Citation Nr: A25035449 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240930-478346 DATE: April 17, 2025 REMANDED Entitlement to service connection for diabetes type II is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 until March 1972. The rating decision on appeal was issued in November 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of diabetes type II, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). ? Service connection for diabetes type II. The Veteran contends that his diabetes type II is due to his active-duty service. Specifically, the Veteran contends "[he] was exposed to toxic chemicals and dangerous particles while working and living on the ship." The Veteran is currently diagnosed with diabetes type II. See November 6, 2019, Private Medical Record. In a May 2023 Higher Level Review, the AOJ identified a duty to assist error and returned the claim in order to get additionl records and PACT Act development. In an August 31, 2021, TERA Memorandum, the VA stated that exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The TERA memorandum was inadequate due to exclusively focusing on duty or visitation in Vietnam without considering or acknowledging any other possible TERA exposure while the Veteran served throughout his active-duty service. August 7, 1970, military records indicates the Veteran was exposed to mechanical foam, portable extinguishers, dry powder types and other chemicals while working as a firefighter on the USS York County. The Board also notes that at no time has the Veteran been afforded VA examination for his current diabetes type II. That a present disability "may be associated" with service is generally a low threshold analysis. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran's claim warrants a VA examination. The AOJ denied the claim without obtaining a VA examination or obtaining a proper TERA evaluation. These are pre-decisional duty to assist errors requiring a remand to correct. The matters are REMANDED for the following action: Schedule the Veteran for an examination regarding the full symptomatology and treatment for his diabetes type II. (A) Confirm the current diagnosis of diabetes type II. (B) The clinician must address whether it is at least as likely as not that the Veteran's diabetes type II is related to his active-duty service including any presumed exposure to TERA. (C) Conduct an adequate and appropriate TERA examination. In answering the above questions, the clinician must consider the following: 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (Continued on the next page) ? The clinician is asked to explain the reasons behind any opinions expressed and conclusions reached. The clinician is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martinezorta, Rafael 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.