Another Vet Earns Agent Orange Recognition - Outside Vietnam!

Thanks to Paul Sutton who forwarded a Blue Water Navy discovery, we now have another example of the VA awarding service connection for Agent Orange-presumptive illness to a veteran who came into contact with the toxin outside Vietnam...in this case, the Philippines. 

The decision by the Board of Veterans' Appeals is great news to us...it gives precedence which clearly shows our road to getting our own cases decided correctly. In his case, he patrolled the fence line of an air base which had Agent Orange freighted through the base. In our case, we have "boots on the airplane" aboard C-123K aircraft which the Air Force itself certified as "heavily contaminated, extremely dangerous, extremely hazardous" and which led to our exposure.


Many of us have claims before the VA now, and we cannot count on every Rating Officer (RO) knowing of this decision regarding Agent Orange exposure outside Vietnam, so it might be beneficial to your case to submit a copy of the decision as additional evidence.


Here is the decision, so very vital to us. It certainly shows how differently the BVA treats veterans represented by competent attorneys!
---------------------

Citation Nr: 1117698  

Decision Date: 05/09/11    Archive Date: 05/17/11 

DOCKET NO.  09-19 872 )   DATE 

On appeal from the Department of Veterans Affairs Regional Office in St. 

Petersburg, Florida 

THE ISSUES 

1.  Whether there is new and material evidence to reopen a claim for 

service connection for Type II Diabetes Mellitus, including as due to 

herbicide exposure. 

2.  Entitlement to service connection for Type II Diabetes Mellitus, 

including as due to herbicide exposure. 

3.  Entitlement to service connection for peripheral neuropathy of the 

upper extremities, including as secondary to the Type II Diabetes 

Mellitus. 

4.  Entitlement to service connection for peripheral neuropathy of the 

lower extremities, including as secondary to the Type II Diabetes 

Mellitus. 

5.  Entitlement to service connection for a kidney order, including as 

secondary to the Type II Diabetes Mellitus. 

6.  Entitlement to service connection for hypertension, including as 

secondary to the Type II Diabetes Mellitus. 

7.  Entitlement to service connection for a heart disorder, including as 

secondary to the Type II Diabetes Mellitus. 

8.  Entitlement to service connection for a bilateral foot disorder, 

including as secondary to the Type II Diabetes Mellitus. 

9.  Entitlement to service connection for a bilateral eye disorder, 

including as secondary to the Type II Diabetes Mellitus. 

10.  Entitlement to service connection for a lung disorder, including as 

due to herbicide exposure. 

REPRESENTATION 

Appellant represented by: Matthew D. Hill, Attorney 

WITNESS AT HEARING ON APPEAL 

The Veteran 

ATTORNEY FOR THE BOARD 

Rochelle E. Richardson, Associate Counsel 

    INTRODUCTION 

The Veteran had active military service from December 1968 to October 

1971. 

This appeal to the Board of Veterans' Appeals (Board) is from an April 

2008 rating decision of the Department of Veterans Affairs (VA) Regional 

Office (RO) in St. Petersburg, Florida. 

In that April 2008 rating decision, the RO denied the Veteran's petitions 

to reopen his previously denied, unappealed, claims for service 

connection for Type II Diabetes Mellitus and residuals of a head injury - 

concluding there was not new and material evidence concerning these 

claims.  However, the RO reopened his previously denied, unappealed, 

claim for service connection for a left knee disorder, though continued 

to deny this claim on its underlying merits.  The RO also denied his 

claims for service connection for peripheral neuropathy of the upper and 

lower extremities, a kidney condition, high blood pressure, a heart 

condition, a bilateral foot condition, a bilateral eye condition, facial 

skin cancer, a lung condition, depression, and venereal disease.  As 

well, the RO denied his claim for permanent and total disability and 

eligibility for Dependents' Educational Assistance. 

In his July 2008 notice of disagreement (NOD) with that decision, the 

Veteran contested the RO's denials of his claims for Type II Diabetes 

Mellitus, peripheral neuropathy of his upper and lower extremities, a 

kidney condition, high blood pressure, a heart condition, a bilateral 

foot condition, a bilateral eye condition, facial skin cancer, a lung 

condition, depression, the head injury, and a left knee condition.  In 

May 2009, the RO issued a statement of the case (SOC) concerning these 

claims and, in response, he submitted a timely substantive appeal (VA 

Form 9), perfecting his appeal of these claims to the Board.  38 C.F.R. § 

20.200 (2010). 

In August 2009, following receipt and consideration of additional 

evidence, the RO confirmed and continued its prior determinations 

regarding the claims. 

In June 2010, as support for his claims, the Veteran testified at a 

hearing at the Board's offices in Washington, DC (Central Office hearing) 

before the undersigned Veterans Law Judge.  His wife was also present at 

the proceeding but did not testify. 

During that June 2010 hearing, the Veteran's attorney indicated the 

Veteran was withdrawing his left knee, head injury and depression claims.  

In July 2010, the Veteran's attorney submitted a letter reiterating this 

and indicated additionally that the Veteran also was withdrawing his skin 

cancer claim.  Therefore, those claims are no longer at issue.  See 38 

C.F.R. § 20.204. 

Since certification of this appeal to the Board - including during and 

since that June 2010 hearing, the Veteran and his attorney have submitted  

additional evidence and waived their right to have the RO initially 

consider it.  See 38 C.F.R. §§ 20.800, 20.1304(c). 

In this decision, the Board is reopening the claim for service connection 

for Type II Diabetes Mellitus because there is new and material evidence.  

The Board also is deciding the underlying claim for service connection 

for this condition, as well as the claims for some of the alleged 

complications - namely, for peripheral neuropathy of the lower 

extremities, a bilateral eye disorder, and a kidney disorder.  The Board 

is remanding the remaining claims for service connection for peripheral 

neuropathy of the upper extremities, hypertension, a heart disorder, a 

bilateral foot disorder, and a lung disorder because these remaining 

claims require further development before being decided. 

FINDINGS OF FACT 

1.  Although the Veteran did not appeal the RO's December 2002 rating 

decision denying his claim for service connection for Type II Diabetes 

Mellitus, additional evidence since submitted is not cumulative or 

redundant of evidence already of record and previously considered, 

relates to an unestablished fact necessary to substantiate this claim, 

and raises a reasonable possibility of substantiating it. 

2.  Although the Veteran did not serve in Vietnam, there is probative, 

i.e., competent and credible, evidence of record indicating it is as 

likely as not that he nonetheless was exposed to herbicides elsewhere, 

while stationed in the Philippines, and has consequent Type II Diabetes 

Mellitus. 

3.  As well, there is probative medical evidence of record indicating he 

has multiple complications of this Type II Diabetes Mellitus - namely, 

peripheral neuropathy of his lower extremities, a bilateral eye disorder 

(retinopathy and a history of glaucoma and cataracts that have been 

extracted), and a kidney disorder (nephropathy). 

CONCLUSIONS OF LAW 

1.  The RO's December 2002 rating decision denying the Veteran's claim 

for service connection for Type II Diabetes Mellitus is final and binding 

on him based on the evidence then of record because he did not appeal 

that decision; however, there is new and material evidence since that 

decision to reopen this claim.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 

C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2010). 

2.  Resolving all reasonable doubt in his favor, the Veteran's Type II 

Diabetes Mellitus was presumptively incurred in service.  38 U.S.C.A. §§ 

1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 

3.102, 3.303, 3.307, 3.309 (2010). 

3.  The peripheral neuropathy of the Veteran's lower extremities, 

bilateral eye disorder (retinopathy, etc.), and kidney disorder 

(nephropathy) are proximately due to, the result of, or aggravated by 

this service-connected disability, the Type II Diabetes Mellitus.  38 

U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 

(2010). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 

I.  The Duties to Notify and Assist 

The Veterans Claims Assistance Act (VCAA) enhanced VA's duties to notify 

and assist Veterans with claims for VA benefits.  The VCAA was codified 

at 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126, and the 

implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 

3.159, 3.326(a). 

Because the Board is reopening the claim for service connection for Type 

II Diabetes Mellitus on the basis of new and material evidence, the Board 

need not determine whether there has been sufficient VCAA notice to 

comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), 

wherein the U.S. Court of Appeals for Veterans Claims (Court) held that 

VA must both notify a claimant of the evidence and information that is 

necessary to reopen the claim and of the evidence and information needed 

to establish entitlement to the underlying benefit being sought, i.e., 

service connection.  To satisfy this requirement, VA adjudicators are 

required to look at the bases of the denial in the prior decision and 

provide the claimant a notice letter describing what evidence would be 

necessary to substantiate those elements required to establish service 

connection that were found insufficient in the previous denial.  See also 

VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of 

General Counsel issued informal guidance interpreting Kent as requiring 

the notice to specifically identify the kind of evidence that would 

overcome the prior deficiency rather than simply stating the evidence 

must relate to the stated basis of the prior denial).  This claim is 

being reopened, regardless. 

Furthermore, since the Board is also granting in full the underlying 

claim for service connection for Type II Diabetes Mellitus, as well as 

the derivative (secondary) claims for peripheral neuropathy of the lower 

extremities, a bilateral eye disorder (retinopathy, etc.), and a kidney 

disorder (nephropathy), there is no need to discuss whether there has 

been compliance with even the remaining notice-and-duty-to-assist 

provisions of the VCAA.  This is because even were the Board to assume, 

for the sake of argument, there has not been, this is ultimately 

inconsequential and, therefore, at most nonprejudicial, i.e., harmless 

error.  38 C.F.R. § 20.1102; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

All of these claims are being granted, regardless. 

II.  Whether there is New and Material Evidence to Reopen the Claim 

for Service Connection for Type II Diabetes Mellitus 

The RO originally considered and denied this claim in December 2002.  

That same month, the RO sent the Veteran a letter notifying him of that 

decision and apprising him of his procedural and appellate rights.  In 

January 2003, in response, he submitted a notice of disagreement (NOD) 

with that decision denying this claim.  In March 2004, the RO issued a 

statement of the case (SOC) continuing to deny this claim.  However, the 

Veteran did not in response then submit a timely substantive appeal (VA 

Form 9 or equivalent statement) to complete the steps necessary to  

perfect his appeal of this claim.  Therefore, that December 2002 RO 

decision became final and binding on him based on the evidence then of 

record and not subject to revision on the same factual basis.  38 

U.S.C.A. § 7105(c); see also 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 

20.302, 20.1103. 

The Veteran did not submit any additional evidence or correspondence in 

relation to this claim until several years later, in January 2007, when 

he submitted several documents and a statement that he believed 

constituted new and material evidence to reopen this claim. 

In February 2007, the RO sent the Veteran a letter informing him that his 

claim potentially could be affected by a then pending court case, Haas v. 

Nicholson, and that his claim would be decided upon guidance from VA's 

General Counsel.  The Federal Circuit Court since has clarified that 

service in the Republic of Vietnam, for purposes of presuming a Veteran 

was exposed to Agent Orange, requires service on the landmass of Vietnam 

or inland waterways.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert 

denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). 

So, in April 2008, the RO issued the rating decision at issue denying the 

Veteran's petition to reopen this claim on the grounds that no new and 

material evidence had been received. 

Since the RO has previously considered and denied this claim, and the 

Veteran did not timely appeal the earlier decision, the first inquiry is 

whether new and material evidence has been submitted to reopen this 

claim.  38 C.F.R. § 3.156(a).  And irrespective of whether the RO 

determined there was new and material evidence to reopen this claim, so, 

too, must the Board make this threshold preliminary determination, before 

proceeding further, because it affects the Board's jurisdiction to 

adjudicate this claim on its underlying merits, i.e., on a de novo basis.  

Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. 

Brown, 9 Vet. App. 167, 171 (1996).  If the Board finds that new and 

material evidence has not been submitted, then its analysis must end, as 

further analysis is neither required nor permitted.  See Barnett, 83 F.3d 

at 1383-4.  See, too, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 

2001); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply 

with its own regulations by ignoring issue of whether any new and 

material evidence had been submitted to reopen the Veteran's previously 

and finally denied claims); and VAOPGCPREC 05-92 (March 4, 1992). 

If, on the other hand, there is new and material evidence, then the Board 

must reopen this claim and review its former disposition.  38 U.S.C.A. § 

5108. 

For a petition to reopen, as here, filed on or after August 29, 2001, new 

evidence means existing evidence not previously submitted to agency 

decisionmakers; and material evidence means existing evidence that, by 

itself or when considered with previous evidence of record, relates to an 

unestablished fact necessary to substantiate the claim.  New and material 

evidence can be neither cumulative nor redundant of the evidence already 

of record at the time of the last prior final denial of the claim sought 

to be opened, and it must raise a reasonable possibility of 

substantiating the claim.  38 C.F.R. § 3.156(a). 

In determining whether evidence is "new and material," the credibility of 

the evidence in question must be presumed.  Justus v. Principi, 3 Vet. 

App. 510, 513 (1992).  But see, too, Duran v. Brown, 7 Vet. App. 216 

(1994) ("Justus does not require the Secretary [of VA] to consider the 

patently incredible to be credible"). 

The RO's December 2002 rating decision that originally considered and 

denied service connection for diabetes is the most recent final and 

binding decision on this claim, so it marks the starting point for 

determining whether there is new and material evidence to reopen it.  See 

Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to 

review for newness and materiality only the evidence submitted by a 

claimant since the last final disallowance of a claim on any basis to 

determine whether a claim should be reopened and readjudicated on the 

merits). 

In that earlier December 2002 rating decision, the RO denied the 

Veteran's claim for service connection for diabetes because he did not 

serve in the Republic of Vietnam during the Vietnam era and, therefore, 

was not presumptively exposed to Agent Orange.  See 38 C.F.R. § 3.2(f).  

Therefore, new and material evidence would consist of competent and 

credible evidence either establishing his service in the Republic of 

Vietnam during the Vietnam era or alternatively indicating his diabetes 

is otherwise attributable to his military service - including from 

exposure to Agent Orange elsewhere, outside of Vietnam.  See 38 U.S.C.A. 

§ 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  See also Watson v. Brown, 4 Vet. 

App. 309, 314 (1993). 

The additional evidence submitted since that December 2002 rating 

decision includes, among other things, a copy of a September 1966 Report 

of Staff Visit, Philippines, Taiwan, and Okinawa, forwarded by the 

Veteran's Congressman and received by the RO in November 2008, discussing 

recommendations and procedures for handling herbicides. 

This additional evidence is both new and material to this claim because 

it relates to an unestablished fact necessary to substantiate this claim 

and raises a reasonable possibility of substantiating it - specifically, 

by supporting the Veteran's assertion that his diabetes is due to his 

exposure to herbicides (Agent Orange) while serving in the Philippines, 

so outside of Vietnam.  See 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 

3.307(a)(6), 3.309(e).  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 

2000) (direct service connection generally requires evidence of a current 

disability with a relationship or connection to an injury or a disease or 

some other manifestation of the disability during service).  See, too, 

Evans, 9 Vet. App. at 284 (indicating the newly presented evidence need 

not be probative of all the elements required to award the claim, just 

probative as to each element that was a specified basis for the last 

disallowance); and Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) 

(wherein the Federal Circuit Court reiterated this, noting that new 

evidence could be sufficient to reopen a claim if it could contribute to 

a more complete picture of the circumstances surrounding the origin of a 

claimant's injury or disability, even where it would not be enough to 

convince the Board to grant a claim).  Therefore, this claim for service 

connection for diabetes is reopened. 

III.  Entitlement to Service Connection 

Service connection is granted if the evidence shows a current disability 

resulted from an injury or a disease that was incurred or aggravated 

during active military service in the line of duty.  38 U.S.C.A. § 1110; 

38 C.F.R. § 3.303(a). 

Stated somewhat differently, direct service connection generally 

requires: (1) medical evidence of a current disability; (2) medical, or 

in certain circumstances, lay evidence of in-service incurrence or 

aggravation of a relevant disease or injury; and (3) medical evidence of 

a nexus or link between the claimed in-service disease or injury and the 

current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. 

Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). 

Diabetes Mellitus will be presumed to have been incurred in service if 

manifested to a compensable degree of at least 10-percent disabling 

within one year after service.  This presumption, however, is rebuttable 

by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 

1113; 38 C.F.R. §§ 3.307, 3.309(a). 

According to 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, this minimum 

compensable rating of 10 percent for diabetes mellitus is warranted when 

the condition is manageable by restricted diet only. 

Also, as already alluded to, diseases associated with exposure to certain 

herbicide agents used in support of military operations in the Republic 

of Vietnam during the Vietnam era will be presumed to have been incurred 

in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  The 

presumption requires exposure to an herbicide agent and manifestation of 

the disease to a degree of 10 percent or more within the time period 

specified for each disease.  38 C.F.R. § 3.307(a)(6)(ii).  Furthermore, 

even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), 

he or she is presumed to have been exposed to herbicides if he or she 

served in Vietnam between January 9, 1962, and May 7, 1975, unless there 

is affirmative evidence establishing he was not exposed to any such agent 

during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. §3.307(a)(6)(iii).  

This list of diseases presumptively associated with exposure to Agent 

Orange in Vietnam includes Type II Diabetes Mellitus.  38 U.S.C.A. § 

1116(a)(2); 38 C.F.R. § 3.309(e) (2009 and Supp. 2010); see Notice, 75 

Fed. Reg. 168, 53202-16 (Aug. 31, 2010). 

In October 2009, the Secretary of VA announced the decision to establish 

presumptions of service connection, based upon exposure to herbicides 

used in the Republic of Vietnam during the Vietnam era, for three new 

conditions:  ischemic heart disease, Parkinson's disease, and B-cell 

leukemias.  In November 2009, the Secretary directed the Board to stay 

action on all claims for service connection that could not be granted 

under current law but may potentially be granted based on the planned new 

regulations.  Chairman's Memorandum No. 01-09-25 implemented this stay.  

In August 2010, the Secretary published in the Federal Register a final 

rule amending 38 U.S.C.A. § 3.309(e) to establish a presumption of 

service connection for these three new conditions.  In October 2010, the 

Secretary issued a memorandum lifting the stay of appeals affected by the 

new herbicide-related presumptions.  Chairman's Memorandum No. 01-10-37 

lifted this stay, effective October 30, 2010.  These diseases, along with 

those specified in 38 C.F.R. § 3.309(e), which, again, includes Type II 

Diabetes Mellitus, must have become manifest to a degree of 10 percent or 

more at any time after service, except that chloracne (or other acneform 

disease consistent with chloracne) must become manifest to a degree of 10 

percent or more within a year after the last date on which the Veteran 

was exposed to an herbicide agent during active military, naval, or air 

service.  See 38 C.F.R. § 3.307(a)(6)(ii). 

So service connection is established either by showing direct service 

incurrence or aggravation or by using applicable presumptions, if 

available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

A disorder may be service connected if the evidence of record reveals the 

Veteran currently has a disorder that was chronic in service or, if not 

chronic, that was seen in service with continuity of symptomatology 

demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. 

Gober, 10 Vet. App. 488, 494-97 (1997).  Establishing continuity of 

symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of 

satisfying the second and third Shedden requirements to establish 

chronicity (permanency) of disease or injury in service and, in turn, 

link current disability to service.  See also Clyburn v. West, 12 Vet. 

App. 296, 302 (1999). 

Service connection may be granted for any disease diagnosed after 

discharge, when all the evidence, including that pertinent to service, 

establishes the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Evidence relating a current disorder to service must be medical unless it 

concerns a disorder that may be competently demonstrated by lay 

observation.  Savage, 10 Vet. App. at 495-97.  For the showing of chronic 

disease in service, there is a required combination of manifestations 

sufficient to identify the disease entity, and sufficient observation to 

establish chronicity at the time, as distinguished from merely isolated 

findings or a diagnosis including the word "chronic."  38 C.F.R. § 

3.303(b). 

Disability that is proximately due to, the result of, or chronically 

aggravated by a service-connected condition shall also be service 

connected on this secondary basis. See 38 C.F.R. § 3.310(a) & (b).  See 

also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In order to establish 

entitlement to service connection on this secondary basis, there must be:  

(1) evidence of a current disability; (2) evidence of a  

service-connected disability; and (3) medical evidence establishing a 

nexus (i.e., link) between the service- connected disability and the 

current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); 

McQueen v. West, 13 Vet. App. 237 (1999); Velez v. West, 11 Vet. App. 

148, 158 (1998). 

Where the determinative issue involves medical causation or medical 

diagnosis, there generally must be competent medical evidence; lay 

assertions regarding this generally are insufficient.  Grottveit v. 

Brown, 5 Vet. App. 91, 93 (1993).  A layperson generally is incapable of 

opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. 

App. 183, 186 (1997).  See also Bostain v. West, 11 Vet. App. 124, 127 

(1998). 

There are exceptions to this general rule, however.  Lay testimony is 

competent to establish the presence of observable symptomatology and "may 

provide sufficient support for a claim of service connection."  Layno v. 

Brown, 6 Vet. App. 465, 469 (1994).  When, for example, a condition may 

be diagnosed by its unique and readily identifiable features, the 

presence of the disorder is not a determination "medical in nature" and 

is capable of lay observation.  In such cases, the Board is within its 

province to weigh that testimony and make a credibility determination as  

to whether that evidence supports a finding of service incurrence and 

continuity of symptomatology sufficient to establish service connection.  

See Barr v. Nicholson, 21 Vet. App. 303 (2007). 

Lay evidence can be competent and sufficient to establish a diagnosis of 

a condition when (1) a layperson is competent to identify the medical 

condition, (2) the layperson is reporting a contemporaneous medical 

diagnosis, or (3) lay testimony describing symptoms at the time supports 

a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 

F.3d 1372 (Fed. Cir. 2007). 

So medical evidence is not always or categorically required in every 

instance when the determinative issue involves either medical etiology or 

diagnosis, but rather such issue may, depending on the facts of the case, 

be established by competent lay evidence under 38 U.S.C. § 1154(a).  See 

Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Board must 

consider the type of condition specifically claimed and whether it is 

readily amenable to lay diagnosis or probative comment on etiology.  See 

Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this 

axiom in a claim for rheumatic heart disease). 

The determination as to whether the requirements for service connection 

are met is based on an analysis of all the evidence of record and the 

evaluation of its credibility and probative value.  Baldwin v. West, 13 

Vet. App. 1, 8 (1999). 

When there is an approximate balance of positive and negative evidence 

regarding any issue material to the determination, the benefit of the 

doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 

C.F.R. § 3.102. 

A.  Type II Diabetes Mellitus 

As explained, the first and indeed perhaps most fundamental requirement 

for any service-connection claim is there must be competent and credible 

evidence confirming the Veteran has the claimed condition.  Boyer, 210 

F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Without 

this minimum level of proof, usually in the way of a relevant diagnosis, 

there can be no valid claim because there is no current disability to 

attribute to his military service. 

Here, the report of the Veteran's January 2007 VA Agent Orange 

examination provides a diagnosis of Type II Diabetes Mellitus.  So there 

is no disputing he has this claimed condition.  Therefore, the 

determinative issue is whether it is attributable to his military 

service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A 

determination of service connection requires a finding of the existence 

of a current disability and a determination of a relationship between 

that disability and an injury or a disease incurred in service.").  See, 

too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. 

West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 

546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 

1998). 

Concerning this, although the Veteran acknowledges he did not serve in 

Vietnam, he maintains that he nonetheless was exposed to Agent Orange 

elsewhere, in particular, while stationed in the Philippines, so is still 

entitled to the presumption of service connection.  He alternatively 

argues that exposure to toxic water at Camp LeJeune, North Carolina, may 

have caused or contributed to his diabetes.  See his attorney's July 2010 

letter. 

As is readily conceded, neither the Veteran nor the record suggests he 

served in Vietnam as might entitle him to presumptive service connection.  

That is, although his service records indicate he served during the 

Vietnam Era, there is no indication he served in Vietnam.  Indeed, his 

claims file shows that in June 2002 the RO requested information from the 

National Personnel Records Center (NPRC), a military records repository, 

regarding any service he might have had in Vietnam.   

The NPRC's response was that he did not have Vietnam service.  So the 

Board need not presume that he was exposed to herbicides (Agent Orange) 

during his service or that his Type II Diabetes Mellitus is a necessary 

consequence. 

But in determining whether service connection is warranted, VA 

adjudicators must consider all potential basis of entitlement reasonably 

raised by the record.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. 

Cir. 2004).  Therefore, if it is instead established that he was exposed 

to Agent Orange elsewhere, outside of Vietnam, he would then still be 

entitled to the presumption that his Type II Diabetes Mellitus is a 

consequence. 

When VA proposed to amend 38 C.F.R. § 3.309(e) in 2001, VA invited the 

submission of written comments concerning the proposed amendment.  With 

respect to herbicide exposure outside of Vietnam, one commenter suggested 

that VA amend the proposed regulation to include Veterans who did not 

serve in Vietnam, but who were nevertheless exposed to herbicides while 

in service.  The response to that suggestion provides that 38 U.S.C.A. § 

1116(a)(3) establishes a presumption of exposure to certain herbicides 

for any Veteran who served in Vietnam between January 9, 1962 and May 

1975, and has one of the diseases on the list of diseases subject to 

presumptive service connection.  However, if a Veteran who did not serve 

in Vietnam was exposed to such an herbicide in service and has a disease 

on the list of diseases subject to presumptive service connection, VA 

will presume that the disease is due to the exposure to herbicides.  

Therefore, there was no need to revise the regulation based on this 

comment.  See 66 Fed.Reg. 23166 (May 8, 2001). 

Nevertheless, to establish his entitlement to this presumption, the 

Veteran must still establish that he was exposed to such herbicides while 

in service.  And for the reasons and bases discussed below, the Board 

finds this Veteran has. 

The Veteran has submitted several lay statements from himself and fellow 

servicemen, generally describing their exposure to containers marked with 

orange paint and other markings that were leaking and generally believed 

to contain Agent Orange.  These statements indicate the Veteran was a 

security guard at Subic Bay, Philippines, and that his duties involved 

patrolling the pier where munitions and chemicals - including Agent 

Orange, were shipped in and stored, prior to being shipped out in support 

of the Vietnam Conflict.  See his attorney's July 2010 letter. 

While, generally, the Veteran and his fellow servicemen are competent to 

provide evidence of their personal observations - including that his 

duties and responsibilities in service involved patrolling the pier where 

munitions and substances were stored and that they saw containers marked 

with orange paint that were leaking fluids, the exact contents of those 

containers remains unknown.  Their assertions tend to suggest they 

believed or suspected these containers held Agent Orange - largely 

because of the orange paint and/or other symbols on them, but they have 

not provided any indication as to how they would come to know that these 

containers did, in fact, contain Agent Orange, as opposed to being marked 

or painted in that manner for some other reason.  So while they are 

competent to say the Veteran saw and perhaps even had occasion to handle 

these containers, this is not tantamount to concluding this resulted in 

his exposure to Agent Orange because even they concede they do not know 

what the containers actually contained.  See Washington v. Nicholson, 19 

Vet. App. 363 (2005) (A Veteran is competent to report what occurred in 

service because testimony regarding firsthand knowledge of a factual 

matter is competent.) 

That said, the records concerning the Veteran's military service confirm 

he served in Subic Bay from January 1970 to September 1971.  These 

records also confirm his assertion that his military occupational 

specialty (MOS) was security guard.  So the Board finds his and his 

fellow servicemember's lay testimony regarding his duties including 

patrolling of the pier are substantiated by the record and, therefore, 

credible.  So, to this extent, their statements are probative.  See 

Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 

465, 469 (1994) (distinguishing between competency ("a legal concept 

determining whether testimony may be heard and considered") and 

credibility ("a factual determination going to the probative value of the 

evidence to be made after the evidence has been admitted")). 

In further support of his claim, the Veteran also has submitted several 

internet articles discussing herbicides and their use during the Vietnam 

Era - including a proposal for studies relating to the use of herbicides 

in the Philippines and Vietnam and articles more generally discussing the 

association of certain diseases with exposure to herbicides.  As well, 

and perhaps most notably, he submitted news articles indicating the New 

Zealand government manufactured Agent Orange for the United States and 

sent it to Subic Bay en route to Vietnam.  And although these articles 

are inconclusive as to whether he was personally exposed to Agent Orange 

or any other herbicide, where it to be shown that Agent Orange or any 

other such herbicide was routinely shipped in containers to Subic Bay 

during the time he served there as a security guard or that it was 

routinely used there, this would in turn tend to support the notion that 

he came into contact with the substance.  Cf. Pentecost v. Principi, 16 

Vet. App. 124 (2002) (indicating the mere fact that the Veteran was 

stationed with a unit that was present while enemy attacks occurred 

strongly suggests that he was, in fact, exposed to those attacks). 

Further concerning this, in October 2008 the Veteran's Congressman 

submitted a letter in support of the Veteran's claim of having been 

exposed to herbicides while in service.  This Congressman's letter 

includes a copy of a September 1966 Report of Staff Visit, Philippines, 

Taiwan, and Okinawa.  This report indicates that an Air Force 

representative visited several named locations in August 1966 - including 

Subic Bay, Philippines, specifically to participate in a joint  

Navy-Air Force Pest Control Conference and to review base programs and 

assist individual bases with the establishment of safer and more 

effective programs.  Specifically, the items addressed were certification 

of pest control personnel, pest control chemicals, pest control 

equipment, termite control procedures, roach control procedures, 

microscopes for pest control shop, manning for pest control shop, and 

herbicides.  And as specifically concerning these herbicides, the report 

provides that herbicide literature was handed out at the Subic Bay 

conference and samples mailed.  It was noted additionally that 

restrictions on herbicide usage applied as they did for other pesticides 

and herbicide usage and should be "backed-up" by usage sheets from each 

manufacturer.  The recommendations addressed herbicide spraying, securing surgeon's approval of nonstandard herbicides, securing data sheets on each product, and procuring sprayers. 

The Veteran served at Subic Bay from January 1970 to September 1971, so 

over 3 years after the conference discussed in the September 1966 letter 

provided by his Congressman.  But articles reporting that herbicides were 

manufactured in and shipped from New Zealand to Subic Bay suggest there 

was a regular flow of these toxins to and from the pier where he 

patrolled.  Indeed, a conference was held at Subic Bay regarding the use 

and handling of herbicides, as a means of technical assistance.  So 

considering this evidence in the aggregate, it is just as likely as not 

the Veteran was exposed to herbicides while at Subic Bay.  And in this 

circumstance this reasonable doubt is resolved in his favor, allowing the 

Board to in turn presume that service involved exposure to Agent Orange.  

See 38 C.F.R. § 3.102. 

VA's response to the suggested comment regarding whether Veterans should be entitled to presumptive service connection on the basis of proving actual exposure to herbicides clearly anticipates that such cases would exist.  

That is, the statute, by its language, contemplates situations 

like the Veteran's, where there was exposure to herbicides outside of 

Vietnam.  See 66 Fed.Reg. 23166 (May 8, 2001).  Proving such exposure to 

herbicides during his service should not be an insurmountable task.  And, 

again, because this determination is material to the ultimate disposition 

of his claim, he should be afforded the benefit of all reasonable doubt.  

Therefore, having established that he has Type II Diabetes Mellitus - a 

disease specified in 38 C.F.R. § 3.309(e) as presumptively associated 

with exposure to herbicides, and have established his exposure to these 

herbicides (albeit outside of Vietnam), the requirements for presumptive 

service connection are met.  See again 38 C.F.R. § 3.309(e).  See also 

Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely 

accurate" determination of etiology is not a condition precedent to 

granting service connection, nor is "definite" or "obvious" etiology). 

B.  Conditions Secondary to the Type II Diabetes Mellitus, i.e., Multiple 

Complications 

The Veteran claims he has several other disabilities on account of his 

diabetes, namely, peripheral neuropathy of his lower extremities, a 

bilateral eye disability, and a kidney disability.  See his attorney's 

July 2010 letter. 

So these derivative claims are predicated on the notion that these 

additional disabilities are secondary to the now service-connected Type 

II Diabetes Mellitus.  See again 38 C.F.R. § 3.310(a) and (b) permitting 

service connection on this secondary basis for disability that is 

proximately due to, the result of, or aggravated by a service-connected 

condition. 

Because the Board has determined the Veteran's Type II Diabetes Mellitus 

is a service-connected disability, meaning a disability that, here, is 

presumptively related to his military service (and, in particular, to his 

exposure to Agent Orange outside of Vietnam at Subic Bay), he need only 

establish that these additional conditions are residual complications of 

his diabetes to also establish his entitlement to service connection for 

them, as well, on this alleged secondary basis.  See again Wallin v. 

West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 

(1999); Velez v. West, 11 Vet. App. 148, 158 (1998).   

(i) Peripheral Neuropathy of the Lower Extremities 

The report of the Veteran's January 2007 VA Agent Orange Examination 

indicates he has bilateral lower extremity peripheral neuropathy.  So 

there is no disputing he has this claimed condition.  See again Boyer, 

210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

There need only be linkage of this condition to his diabetes to confirm 

it is a complication of it. 

The report of that January 2007 VA Agent Orange Exam indicates the 

Veteran first had symptoms of peripheral neuropathy involving his lower 

extremities in 1991, about the same time it was determined he had 

elevated blood sugar.  Nerve conduction velocity studies confirmed this 

diagnosis.  And after clinical evaluation of the Veteran and review of 

his medical history, this VA examiner concluded the Veteran's bilateral 

lower extremity peripheral neuropathy is indeed a complication of his 

diabetes. 

The Veteran's VA treatment records support this assessment.  These 

records include "diabetic neuropathy" among his active problems and have 

consistently considered his peripheral neuropathy of his lower 

extremities as related to his diabetes.  Therefore, these records support 

the January 2007 VA examiner's conclusion that these conditions are 

etiologically related. 

(ii) Bilateral Eye Disability 

The report of that January 2007 VA Agent Orange Exam also provides 

diagnoses of diabetic retinopathy and history of cataracts, extracted and 

glaucoma, controlled.  So there is no disputing the Veteran has bilateral 

eye disability.  See again Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 

3 Vet. App. 223, 225 (1992).   

Diabetic retinopathy is a retinopathy associated with diabetes mellitus, 

which may be of the background type, progressively characterized by 

microaneurysms, intraretinal punctuate hemorrhages, yellow exudates, 

cotton-wool spots, and sometimes macular edema that can compromise 

vision; or of the proliferative type, characterized by neovascularization 

of the retina and optic disk, which may project into the vitreous, 

proliferation of fibrous tissue, vitreous hemorrhage, and eventually 

retinal detachment with blindness.  See DORLAND'S ILLUSTRATED MEDICAL 

DICTIONARY, 1659 (31st ed., 2007). 

The report of that January 2007 VA Agent Orange Exam indicates the 

complications of the Veteran's diabetes also include difficulties with 

his vision in both eyes.  He had laser surgery for micro aneurysms and 

retinal bleeding.  He lost vision at one time due to his vitreal bleeding 

and required a vitrectomy.  Glaucoma has been present and he has had 

bilateral cataract extraction.  Fundoscopic examination revealed 

background "diabetic retinopathy."   

The Veteran's VA treatment records support this assessment.  For example, 

the report of a May 2007 comprehensive eye examination notes his 

glaucoma, cataracts, and vision problems and provides a diagnosis of 

"diabetic retinopathy."  This exam report also indicates his eye problems 

are manifestations of his diabetes.  His more recent treatment records 

continue to support and reflect these diagnoses. 

The Veteran's private treatment records also consistently reflect and 

reiterate these diagnoses.  For example, a July 2002 medical report from 

a private physician, Dr. J.S., indicates a fundoscopic examination 

revealed scattered micro aneurysms, provides a diagnosis of diabetic 

retinopathy, and indicates the Veteran has had "diabetic damage in both 

eyes." 

(iii) Kidney Disability 

As well, the report of that January 2007 VA Agent Orange Exam provides 

diagnoses of bilateral renal disease and diabetic nephropathy, so there 

also is no disputing he has kidney disability.  See again Boyer, 210 F.3d 

at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).   

Diabetic nephropathy is the nephropathy that commonly accompanies later 

stages of diabetes mellitus; it begins with hyperfiltration, renal 

hypertrophy, microalbuminuria, and hypertension; in time, proteinuria 

develops, with other signs of renal failure leading to end-stage renal 

disease.  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1261 (31st ed., 2007). 

The report of that January 2007 VA Agent Orange Exam indicates the 

Veteran's nephropathy, like the other conditions already discussed, is a 

complication of his diabetes.  So it, too, is deserving of service 

connection. 

ORDER 

The claim for service connection for Type II Diabetes Mellitus is 

reopened and granted on its underlying merits. 

Service connection also is granted on a secondary basis for the several 

complications - namely, for peripheral neuropathy of his lower 

extremities, a bilateral eye disability (retinopathy), and a kidney 

disability (nephropathy). 

REMAND 

Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability 

compensation (service-connection) claims, VA must provide a VA medical 

examination when there is:  (1) competent evidence of a current 

disability or persistent or recurrent symptoms of a disability, and (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 a service-

connected disability, but (4) insufficient competent medical evidence on 

file for the VA to make a decision on the claim.  See also 38 U.S.C.A. § 

5103A(d)(2) and 38 C.F.R. § 3.159(c)(4).  Consequently, for the reasons 

and bases discussed below, the Board must remand the remaining claims. 

Like the peripheral neuropathy affecting his lower extremities, the 

Veteran claims he also has upper extremity peripheral neuropathy as a 

consequence or complication of his Type II Diabetes Mellitus.  He 

additionally relates his hypertension, heart disability, and bilateral 

foot disability to his diabetes.  See his attorney's July 2010 letter. 

(i) Peripheral Neuropathy of the Upper Extremities 

The Veteran's VA medical records indicate he has received treatment for 

peripheral neuropathy.  However, while peripheral neuropathy of his lower 

extremities was noted in during his January 2007 VA Agent Orange Exam, 

peripheral neuropathy of his upper extremities was not.  And while his VA 

treatment records discuss the neurological manifestations of his 

diabetes, generally, unlike his bilateral lower extremity peripheral 

neuropathy, there is no diagnosis of bilateral upper extremity peripheral 

neuropathy as related to his diabetes. 

That notwithstanding, the Veteran is competent, for example, to proclaim 

having experienced numbness and weakness in his upper extremities, just 

as he apparently has in his lower extremities.  So there is at least the 

suggestion that these symptoms affecting his upper extremities have the 

same source or cause as those affecting his lower extremities. 

The Veteran has not been provided a VA compensation examination for a 

medical opinion specifically concerning whether he has bilateral upper 

extremity peripheral neuropathy.  And if he does, there equally is no 

medical nexus opinion in the file regarding its etiology, and in 

particular insofar as whether it is an additional complication of his 

diabetes. 

When determining whether a VA examination is required under 38 U.S.C. § 

5103A(d)(2), the law requires competent evidence of a disability or 

symptoms of a disability, but does not require competent evidence of a 

nexus, only that the evidence indicates an association between the 

disability and service or a service-connected disability.  See Waters v. 

Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). 

(ii) Hypertension 

The Veteran's VA treatment records list hypertension among his ongoing 

diagnoses, so there is no disputing he has this claimed condition. 

He also has submitted several articles generally suggesting a 

relationship between herbicide exposure and various disabilities - 

including hypertension.  See, e.g., the article titled, "Experts tie 

Agent Orange to blood pressure risks."  A medical article or treatise can 

provide important support when combined with an opinion of a medical 

professional.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  See, too, 

Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence 

from a scientific journal combined with doctor's statements was "adequate 

to meet the threshold test of plausibility").  Where medical article or 

treatise evidence, standing alone, discusses generic relationships with a 

degree of certainty such that, under the facts of a specific case, there 

is at least plausible causality based upon objective facts rather than on 

an unsubstantiated lay medical opinion, a claimant may use such evidence 

to meet the requirement for a medical nexus.  Wallin v. West, 11 Vet. 

App. 509 (1998).  However, an attempt to establish a medical nexus 

between service and a disease or injury solely by generic information in 

a medical journal or treatise "is too general and inclusive."  Sacks v. 

West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that 

contained a generic statement regarding a possible link between a 

service-incurred mouth blister and a present pemphigus vulgaris condition 

did not satisfy the nexus element). 

The Veteran has not been provided a VA compensation examination 

specifically addressing this claim.  And while his January 2007 VA Agent 

Orange Exam noted hypertension, there was no opinion regarding whether 

there is an etiological relationship between his hypertension and his 

service-connected diabetes, his exposure to herbicides during service, or 

his service in general.  So the Board needs medical comment concerning 

these possibilities before deciding this claim. 

(iii) Heart Disability 

The Veteran's VA treatment records show that coronary artery disease 

(CAD) and paroxysmal atrial fibrillation are among his active problems 

and indicate he has a history of myocardial infarction (i.e., heart 

attack).  So there is no disputing he has heart disability.  See again 

Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 

(1992). 

Because of the recent revisions mentioned, ischemic heart disease is now 

listed among the diseases presumptively associated with exposure to 

herbicides.  38 C.F.R. § 3.309(e) (2009 and Supp. 2010); see Notice, 75 

Fed. Reg. 168, 53202-16 (Aug. 31, 2010). 

The Veteran has not been provided a VA compensation examination 

addressing this claim.  And while his January 2007 VA Agent Orange Exam 

noted CAD and hypertensive cardiovascular disease, it did not provide an 

opinion regarding whether there is an etiological relationship between 

this heart disability and his diabetes or his military service in 

general. 

(iv) Bilateral Foot Disability 

While the Veteran's VA treatment records document his bilateral lower 

extremity peripheral neuropathy - which the Board has found to be 

service-connected, it is unclear whether the symptoms he describes 

affecting his feet especially are part and parcel of this neuropathy 

versus some other disability.  So a medical opinion is needed to assist 

in making this important determination.  See Mittleider v. West, 11 Vet. 

App. 181, 182 (1998) (when it is not possible to separate the effects of 

the service-connected condition from a nonservice-connected condition, 38 

C.F.R. § 3.102, which requires that reasonable doubt on any issue be 

resolved in the Veteran's favor, dictates that such signs and symptoms be 

attributed to the service-connected condition.)  A VA regulation, 

however, prohibits the pyramiding of ratings - that is, assigning 

separate ratings based on the same manifestations of a disability.  38 

C.F.R. § 4.14.  The Board, consequently, is requesting a medical opinion 

concerning this claim as well. 

(v) Lung Disability, Claimed as due to Herbicide Exposure 

The Veteran's private medical records show he has been treated for  

respiratory-related symptoms and resultantly received diagnoses of 

various relevant conditions, including asthma and bronchitis.  See, e.g., 

his June and July 2007 treatment records from Dr. R.R.  So there is 

competent medical evidence of lung disability.  See again Boyer, 210 F.3d 

at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).   

In support of his claim that his lung disability is attributable to 

herbicide exposure during his military service, the Veteran has cited 

several articles discussing military toxic substances and lung and 

respiratory problems.  These articles, as mentioned, "can provide 

important support when combined with an opinion of a medical 

professional."  See Mattern v. West, 12 Vet. App. 222, 228 (1999).  

However, because the Veteran has not been provided an examination 

concerning this claim, there is no medical opinion addressing this 

causation issue. 

Accordingly, these remaining claims are REMANDED for the following 

additional development and consideration: 

1.  Schedule appropriate VA examinations for medical nexus opinions 

concerning the etiology of the remaining claimed conditions at issue - 

namely, for peripheral neuropathy of the upper extremities, hypertension, 

heart disability, bilateral foot disability, and lung disability.   

Should the examiner diagnose peripheral neuropathy of the upper 

extremities, to confirm the Veteran has it, the examiner must then 

provide an opinion as to the likelihood (very likely, as likely as not, 

or unlikely) this upper extremity peripheral neuropathy is proximately 

due to, the result of, or aggravated by the service-connected Type II 

Diabetes Mellitus or is otherwise attributable to the Veteran's military 

service. 

Similarly, the examiner should provide an opinion as to the likelihood 

(very likely, as likely as not, or unlikely) the Veteran's hypertension 

and heart disease are proximately due to, the result of, or aggravated by 

his diabetes, alternatively related to his exposure to herbicides in 

service, or otherwise attributable to his military service, including 

whether these conditions initially manifested within one year of his 

discharge from service. 

In providing this opinion, the examiner should clarify whether the 

Veteran has ischemic heart disease, which, as a result of the amendments 

to the applicable VA regulation, would require presuming it was incurred 

in service from exposure to Agent Orange. 

Still additional medical comment is needed concerning whether the Veteran 

has a bilateral foot disability (that is, with symptoms distinguishable 

from those attributable to the now service-connected peripheral 

neuropathy affecting his lower extremities).  Should the examiner 

diagnose additional foot disability, he or she must provide an opinion as 

to the likelihood (very likely, as likely as not, or unlikely) this 

additional foot disability is proximately due to, the result of, or 

aggravated by the Veteran's diabetes or otherwise attributable to his 

military service. 

A medical nexus opinion is needed, as well, concerning the likelihood 

(very likely, as likely as not, or unlikely) the Veteran has lung 

disability, including asthma or bronchitis, as a result of exposure to 

herbicides during his military service or otherwise related or 

attributable to his military service. 

The term "as likely as not", i.e., at least 50 percent probability, does 

not mean merely within the realm of medical possibility, rather, that the 

weight of medical evidence both for and against a conclusion is so evenly 

divided that it is as medically sound to find in favor of causation as it 

is to find against it. 

To facilitate making these important determinations, it is imperative the 

designated examiner(s) review the evidence in the claims file, including 

a complete copy of this decision and remand, for the pertinent medical 

and other history. 

The examiner(s) must discuss the rationale of all opinions provided, 

whether favorable or unfavorable, if necessary citing to specific 

evidence supporting or against the claim(s). 

The Veteran is hereby advised that failure to report for his 

examination(s), without good cause, may have detrimental consequences on 

these pending claims for service connection.  See 38 C.F.R. § 3.655. 

2.  Then readjudicate these remaining claims in light of the additional 

evidence.  If any claim is not granted to the Veteran's satisfaction, 

send him and his attorney a supplemental statement of the case (SSOC) and 

give them an opportunity to submit additional evidence and/or argument in 

response before returning the file to the Board for further appellate 

consideration of these remaining claims. 

The Veteran has the right to submit additional evidence and argument 

concerning the claims the Board has remanded.  Kutscherousky v. West, 12 

Vet. App. 369 (1999). 

These claims 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 Supp. 2010). 

______________________________________________ 

KEITH W. ALLEN 

Veterans Law Judge, Board of Veterans' Appeals 

Department of Veterans Affairs