Citation Nr: 1648524	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  12-33 757	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, to include as due to in-service exposure to herbicide agents.

2.  Entitlement to service connection for non-Hodgkin's lymphoma, to include as
due to in-service exposure to herbicide agents.

3.  Entitlement to service connection for chronic lymphocytic leukemia/small lymphocytic lymphoma, to include as due to in-service exposure to herbicide
agents.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Anthony Flamini, Counsel


INTRODUCTION

The Veteran had active service from July 1968 to August 1972, and from June 1976 to May 1996.

This appeal comes to the Board of Veterans' Appeals (Board) from May 2010 and
July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional
Office (RO) in San Diego, California, which, in pertinent part, denied service
connection for diabetes, non-Hodgkin's lymphoma, and chronic lymphocytic
leukemia/small lymphocytic lymphoma.  

In a July 2015 notice of disagreement, the Veteran seemed to raise issues of entitlement to service connection for a kidney stone, entitlement to an increased evaluation for colonic polyps status post excision, and whether new and material evidence has been received to reopen claims of entitlement to service connection for hypertension and diverticulitis.  As these issues have been raised by the record but not adjudicated by the RO, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.



REMAND

The Veteran asserts that he has diagnoses of diabetes mellitus, non-Hodgkin's lymphoma, and chronic lymphocytic leukemia/small lymphocytic lymphoma, which are the result of exposure to herbicides during active duty service off the coast of Vietnam and, as such, he is entitled to presumptive service connection.  Specifically, the Veteran states that he was exposed to herbicides while serving aboard the USS Coral Sea (CV-43) in the Gulf of Tonkin via aircraft returning from the landmass of Vietnam.  At his September 2016 Board videoconference hearing, he conceded that he never set foot on the Vietnam landmass, but indicated that all of his alleged herbicide exposure came from contact with Grumman A-6 Intruder aircraft after they returned to the USS Coral Sea from missions over Vietnam, at which time he tied down and removed foliage from the aircraft.  The Veteran's DD Form 214 confirms that he served as an Aviation Structural Mechanic during his time aboard the USS Coral Sea.

In the alternative, at his September 2016 Board videoconference hearing, the Veteran indicated that his disabilities may have also been caused by exposure to methyl ethyl ketone (MEK) from 1976 to 1980 at Naval Air Station Miramar (currently Marine Corps Air Station Miramar) in Miramar, California.  Specifically, the Veteran indicated that he was exposed to MEK while removing paint from the Douglas A-4 Skyhawk aircraft of the Fleet Composite Squadron Thirteen (VC-13) in his capacity as an Aviation Structural Mechanic in the Airframes Division, without the use of respirators or gloves.  

In an April 2009 memorandum, the Joint Services Records Research Center (JSSRC) indicated that it had found no evidence that indicated Navy or Coast Guard
ships transported tactical herbicides from the United States to the Republic of
Vietnam, or that ships operating off the coast of Vietnam used, stored, tested, or
transported tactical herbicides.  Additionally, the JSRRC indicated that it could not document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam.  As such, the JSRRC could provide no evidence to support a veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era.  

Moreover, VA's Adjudication Procedure Manual includes a list of ships which operated temporarily in Vietnam's inland waterways or those which docked to the shore.  See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b.   However, the USS Coral Sea (CV-43) is not included on this list.

In a response received in April 2010, the Defense Personnel Records Information Retrieval System (DPRIS) indicated that it was unable to determine whether or not the Veteran served in the Republic of Vietnam.  While the Veteran served aboard the USS Coral Sea, which operated in the official waters of the Republic of Vietnam, there was no conclusive proof of in-country service.  Furthermore, there were no documents evidencing exposure to herbicides.  

However, even if the Veteran does not meet the criteria to establish service connection on a presumptive basis, the Veteran can still establish service connection on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Circ. 1994).  In correspondence dated in September 2016, the Veteran's private primary care physician opined that, "[The Veteran's] diabetes and B-cell cancers definitely falls into the lists provided in the studies of Agent Orange and Methyl Ethel Ketone.  I believe that he has been subjected to one or both of these agents especially since he is the only one in his family with B-cell cancer."

The Board notes that the Veteran has not been provided with VA examinations with respect to the disabilities on appeal.  Generally, a VA medical examination is required for a service connection claim only when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  Here, given the Veteran's current diagnoses, his credible testimony, and the opinions of his private primary care physician, the Board finds that the low threshold requirement for finding that a disability may be associated with service is satisfied.  McLendon, 20 Vet. App. at 83.  

Accordingly, the claims must be remanded for a VA examination(s) to determine the likely natures and etiologies of the Veteran's diabetes mellitus and B-cell cancers.  Consideration must be given to the Veteran's military occupational specialties in service.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for appropriate VA examination(s) to ascertain the natures and etiologies of his diabetes mellitus and B-cell cancers (non-Hodgkins lymphoma and chronic lymphocytic leukemia).  The entire claims file must be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided. 

The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that any diagnosed diabetes mellitus and/or B-cell cancers (non-Hodgkins lymphoma and chronic lymphocytic leukemia) are related to the Veteran's periods of active duty service, including to any exposure to toxins or chemicals in service. 

The examiner should specifically address the following:

(a) the Veteran's military occupational specialty of Aviation Structural Mechanic; (b) the details of the exposure to the various chemicals or toxins as reported by the Veteran; (c) the September 2016 correspondence from the Veteran's private primary care physician; (d) medical principles which apply to the facts and medical issues at hand, to include the known causes of diabetes mellitus and B-cell cancers (non-Hodgkins lymphoma and chronic lymphocytic leukemia) and whether in-service exposure to specific toxins or chemicals is consistent with his current diagnoses; and (e) the Veteran's lay statements.

2.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If any claim remains denied, then a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2015).

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s