Citation Nr: 0518697 Decision Date: 07/11/05 Archive Date: 07/20/05 DOCKET NO. 03-07 069 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for Type II diabetes mellitus, to include on the basis of exposure to herbicides. 2. Entitlement to service connection, to include on a secondary basis, for hypertension, including on the basis of exposure to herbicides. 3. Entitlement to service connection, to include on a secondary basis, for pancreatitis, including on the basis of exposure to herbicides. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from September 1968 to April 1970. He also had a period of active duty for training from October 1963 to February 1964, as well as service in the U.S. Army National Guard and Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the case was thereafter transferred to the RO in Huntington, West Virginia. The veteran testified from the Huntington RO before the undersigned, seated in Washington, DC, at a videoconference hearing in June 2004. The issues of entitlement to service connection for hypertension and pancreatitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. It is presumed that the veteran was exposed to herbicides while serving at the demilitarized zone (DMZ) in Korea. 2. The veteran has Type II diabetes mellitus as the result of his exposure to herbicides in service. CONCLUSION OF LAW The veteran has Type II diabetes mellitus that is presumed the result of a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of the VCAA or the implementing regulations. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service incurrence of diabetes mellitus during wartime service may be presumed if manifested to a compensable degree within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 Diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Factual background Service medical records are silent for any complaints, finding or diagnosis of diabetes. Service personnel records show that the veteran served in the Republic of Korea from April 1969 to April 1970 as a field switchboard operator with C Battery, 7th Battalion, 17th Artillery. VA treatment records on file for March 1984 to December 2002 show that the veteran was considered morbidly obese by his treating physicians, but are silent for any reference to diabetes until September 1999. During a course of hospitalization in September 1999 he demonstrated persistently elevated blood sugar levels; he was diagnosed with new onset diabetes mellitus. Subsequent hospital reports and treatment notes show that the veteran's diabetes is considered Type II in nature. In March 2002 he underwent an Agent Orange Registry evaluation, at which time he reported that while he did not handle herbicides when working as a field wireman in service, he did recall watching the substance sprayed. The examiner concluded that the veteran's diabetes could be related to Agent Orange exposure. On file is the report of a September 2000 VA examination of the veteran, at which time physical examination showed that he was markedly obese; the examiner diagnosed Type II diabetes mellitus. In a May 2002 statement, a VA physician's assistant (PA) informed the veteran that his March 2002 Agent Orange Registry examination disclosed the presence of Type II diabetes mellitus, which the PA indicated was related to Agent Orange exposure. Received from the veteran in October 2002 is a signed but undated certificate indicating that he had been presented with the "Imjin Scout" insignia for service along the DMZ in Korea while a member of Battery C, 7th Battalion, 17th Artillery, 2nd Infantry, from April 1969 to March 1970. In a February 2003 statement, the U.S. Armed Services Center for Unit Records Research (CURR) indicates that the veteran's unit in Korea was located approximately 6.82 miles from the Demilitarized Zone (DMZ). The CURR explained that herbicides were used in Korea between 1967 to 1969 along the southern boundary of the DMZ by the Republic of Korea Armed Forces in counter infiltration operations. The CURR further explained that the herbicides were applied using hand sprayers and trailer-mounted decontamination apparatus. The CURR notes that while Republic of Korea personnel were advised in the use of herbicides by U.S. Army non-commissioned officers, no U.S. personnel were known to actually have been involved in the application of herbicides. The CURR lastly explained that the Agent Orange herbicide in particular was used in Korea from April 1968 to August 1968. At his June 2004 hearing the veteran testified that he arrived in Korea in April 1969. He explained that his unit was stationed about 6 miles south of the DMZ, but that he nevertheless received hazard and/or combat pay for his activities in the DMZ area. He indicated that over a six- month period he would spend a week at a time away from his base camp on assignment close to Freedom Village, and that his duties on those occasions included operating searchlights focused on the DMZ. The veteran also indicated that his treating physicians have linked his diabetes to herbicide exposure. Analysis Service medical records are silent for any reference to diabetes mellitus, and there is no post-service evidence of diabetes until 1999, more than 25 years after his discharge. The veteran nevertheless contends that he is entitled to service connection for Type II diabetes mellitus under the presumptions established in 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e). The Board initially points out that the only veterans entitled to a presumption of exposure to herbicides are those who served in the Republic of Vietnam between certain dates. See 38 C.F.R. § 3.307(a)(6)(iii). The veteran did not serve in Vietnam, and this is not in dispute. He is not precluded, however, from demonstrating that he was nevertheless actually exposed to herbicides while serving in locations other than the Republic of Vietnam, such as the Republic of Korea. In this case the evidence supports the veteran's contention that he was exposed to herbicides while temporarily serving along the DMZ in Korea. The veteran testified that he would serve for a week at a time as a searchlight operator at the DMZ, at which time he was close enough to witness herbicide spraying operations. The Board finds his testimony credible, and supported by his receipt of the Imjin Scout insignia, which research suggests was awarded to those members of the 2d Infantry who patrolled and manned guard posts along the DMZ at some point during their tour. The February 2003 statement by the CURR indicates that the veteran's unit was located a little more than 6 miles from herbicide spraying operations along the DMZ, but does not address whether he was ever temporarily located at the DMZ. The CURR also did not indicate when in 1969 the use of herbicides along the DMZ was discontinued, although the agency did note that Agent Orange in particular was not used after 1968. Moreover, given the CURR's awareness that VA was requesting their assistance in the context of a claim for presumptive service connection under 38 U.S.C.A. § 1116, the Board finds it reasonable to conclude that the "herbicides" the CURR indicated were used in 1969 were "herbicide agents" as defined in 38 C.F.R. § 3.307(a)(6)(i). In short, the February 2003 statement by CURR does not provide any information which contradicts the veteran's account of his exposure in service to the herbicides recognized as associated with the development of Type II diabetes mellitus. In short, the veteran's account of his exposure to herbicides in service is corroborated by other evidence in the record. Although VA treatment records show that he has been morbidly obese for a number of years, there is no competent evidence suggesting an intercurrent cause for the onset of the veteran's diabetes, or otherwise providing a basis for rebutting the presumption established in 38 C.F.R. § 3.309(e). In light of the evidence showing exposure to herbicides in service and the subsequent development of Type II diabetes mellitus, the Board finds that the evidence supporting the claim is at least in equipoise with that against the claim, and that he is consequently entitled to the presumption that his diabetes mellitus was caused by his exposure to herbicide agents in service. Accordingly, service connection is in order for Type II diabetes mellitus. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for Type II diabetes mellitus is granted. REMAND The veteran contends that his hypertension and pancreatitis either originated in service (including from exposure to herbicides), or were caused or chronically worsened by his diabetes mellitus. The Board notes in passing that neither condition is one subject to presumptive service connection under 38 U.S.C.A. § 1116 or 38 C.F.R. § 3.309(e). Service medical records are silent for any complaints, finding or diagnosis of hypertension or pancreatitis. He presented in November 1968 with stomach problems which were attributed to viral gastroenteritis. He also presented with a diastolic blood pressure reading of 90 on several occasions, although his blood pressure at his separation examination was 132/78. VA treatment records for March 1984 to December 2002 show that in December 1996 he was noted to have a five-year history of hypertension. In April 1997 he was hospitalized with recent onset abdominal pain; he was diagnosed with pancreatitis. The veteran at that time denied using alcohol or any medications known to cause pancreatitis. A February 1998 treatment note indicates that the pancreatitis was most likely idiopathic, and a March 2000 hospital report indicates that the etiology of the pancreatitis episodes was unknown. The treatment records do not otherwise address the etiology of his hypertension or pancreatitis. At his June 2004 hearing the veteran testified that his treating VA physicians have linked his hypertension and pancreatitis to his diabetes. The record reflects that the veteran has not been afforded a VA examination addressing the etiology of his hypertension or pancreatitis. Under the circumstances, and particularly as service connection has been granted for the veteran's diabetes, the Board is of the opinion that VA examination of the hypertension and pancreatitis disorders is warranted. See generally 38 C.F.R. § 3.159(c)(4). The Board additionally notes that the veteran is apparently in receipt of Social Security Administration (SSA) disability benefits, which were awarded effective September 1999. Records associated with his receipt of such benefits are potentially relevant to the remaining issues on appeal and should be obtained. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to the claims remaining on appeal. With any necessary authorization from the veteran, the RO should attempt to obtain and associate with the claims file any medical records identified by the veteran which have not been secured previously. 2. If the RO is unsuccessful in obtaining any medical records identified by the veteran, it should inform the veteran and his representative of this and ask them to provide a copy of the outstanding medical records. 3. The RO should attempt to obtain a copy of any SSA decision awarding the veteran disability benefits, as well as a copy of the record upon which the veteran's award of SSA disability benefits was based. 4. Thereafter, the RO should schedule the veteran for a VA cardiovascular examination by a physician with appropriate expertise to determine the nature and etiology of the claimant's hypertension. All indicated studies should be performed, and all findings should be reported in detail. The examiner should be requested to provide an opinion as to whether it is at least as likely as not that the veteran's hypertension is etiologically related to service or was present within one year of discharge therefrom, or was caused or chronically worsened by the claimant's service-connected diabetes mellitus. The claims file, including a copy of this remand, must be made available to the examiner for review. 5. The RO should also schedule the veteran for a VA examination by a physician with appropriate expertise to determine the nature and etiology of the claimant's pancreatitis. All indicated studies should be performed, and all findings should be reported in detail. The examiner should be requested to provide an opinion as to whether it is at least as likely as not that the veteran's pancreatitis is etiologically related to service, or was caused or chronically worsened by the claimant's service-connected diabetes mellitus. The claims file, including a copy of this remand, must be made available to the examiner for review. 6. Thereafter, the RO should review the record and ensure that all development actions have been conducted and completed in full. The RO should then undertake any other action required to comply with the notice and duty-to-assist requirements of the VCAA and the implementing regulations. Then the RO should re-adjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case and provide the veteran and his representative with an appropriate opportunity to respond. After the veteran has been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ K. Parakkal Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs