Citation Nr: 1305945 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-40 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II, including as secondary to herbicide exposure. 2. Entitlement to service connection for heart disability, including as secondary to herbicide exposure. 3. Entitlement to service connection for right upper extremity neuropathy, including as secondary to herbicide exposure. 4. Entitlement to service connection for left upper extremity neuropathy, including as secondary to herbicide exposure. 5. Entitlement to service connection for right lower extremity neuropathy, including as secondary to herbicide exposure. 6. Entitlement to service connection for left lower extremity neuropathy, including as secondary to herbicide exposure. 7. Entitlement to service connection for a skin disability to include cysts, including as secondary to herbicide exposure. 8. Entitlement to service connection for erectile dysfunction, including as secondary to diabetes mellitus, Type II. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from March 1968 to March 1970. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma dated in June 2009 and December 2009, which, inter alia, denied the Veteran's claims for service connection for the aforementioned disabilities. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2012. A transcript of the hearing is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The most recent VA medical records were added to the VVA file in August 2012. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he developed diabetes mellitus Type II, peripheral neuropathies, heart disability and a skin disability due to his Agent Orange exposure in the demilitarized zone (DMZ) in service. He claims that he has erectile dysfunction due to his diabetes. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For the showing of chronic disease in service, there is required a 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." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 . Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that such was manifested to a degree of 10 percent or more within one year following separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Also, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence that establishes that the Veteran was not exposed to any such herbicide agent. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii) . Effective February 24, 2011, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Diabetes mellitus Type II, acute and subacute peripheral neuropathies, ischemic heart disease and certain skin disorders to include chloracne are among the diseases deemed associated with herbicide exposure, under current VA law. 38 C.F.R. § 3.309(e). VA has received from the Department of Defense a listing of locations outside of Vietnam where Agent Orange was used or tested over a number of years. Agent Orange was used along the DMZ in Korea from April 1968 to June 1969. Fields of fire between the front line defensive positions and the south barrier fence were defoliated. The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence north of the "civilian control line." There was no indication that herbicides were sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that the effects of spraying were sometimes observed as far as 200 meters down wind. See M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C; see also Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003. If a Veteran served in Korea with one of the listed units between April 1968 and July 1969, exposure must be verified by the service department. Id. Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. The Federal Circuit determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). The Veteran testified before the undersigned that he arrived in Korea early in August 1969. He was assigned to the 7th Infantry Division, 4th and 76th Artillery. He was a battalion ammunitions sergeant. He was sent by his commanding officer along with 13 other soldiers to perform temporary guard duty to Camp Casey at the DMZ for a 14 day tour because 28 men there had come down with the flu. He served as a sentry directly along the DMZ fence and recalls touching the fence. He arrived at the camp and immediately met a longtime friend from home, J. S. J. S, has submitted a buddy statement indicating that he saw the Veteran north of the Freedom Bridge at the DMZ. The Veteran asserts that they had to dig bunkers in the dirt and sleep in an area that was obviously recently defoliated because the vegetation had been shriveled up and brown and there was only dirt and gravel. Service personnel records reflect that the Veteran served with the Army in Korea from August 4, 1069, to March 4, 1970. He was a cannoneer and gunner with Battery C, 4th Battalion, 76th Artillery, 7th Infantry Division. The Board notes that the Veteran has demonstrated through medical evidence that he currently has diabetes mellitus and he has also presented evidence of complaints and findings suggestive of the other aforementioned disabilities. Considering the most recent criteria set forth at 38 C.F.R. § 3.307(a)(6)(iv), which includes the dates during which the Veteran alleges he was ordered to the DMZ area, the Board finds that the claim should be remanded for additional development. Specifically, the Joint Records Research Center (JSRRC) should be contacted and an effort should be made to verify the Veteran's assertions as to this occurrence. The Veteran's claim must be remanded to ensure full compliance with the evidentiary development noted in M21-1MR, Part IV, Subpart ii, Chapter 1, Section D, para. 15(b) to determine, in essence, whether it is documented or likely that the Veteran's unit would have provided such support as described by him during the Veteran's period of assignment to the unit. The JSRRC should search unit histories for any documentation of personnel from the Veteran's unit providing such assistance to the DMZ. If possible, review of relevant unit Morning Reports should be undertaken. Accordingly, the case is REMANDED for the following action: 1. Based on the assertions contained in the Veteran's testimony and documented in the service personnel record, ensure compliance with all relevant evidentiary development law and directives. Contact the JSRRC to verify the Veteran's assertions as to his presence in the DMZ in August 1969 as described. Obtain morning reports for the Veteran's unit for the period from August 4, 1969, to March 4, 1970. Obtain the Veteran's complete service personnel records. Any negative responses should be documented in the claims file and the Veteran must be provided with an opportunity to provide such records. Make a formal finding related to whether the Veteran was exposed to herbicides in the DMZ area. 2. Thereafter, undertake any other development deemed warranted. 3. After the above is complete, readjudicate the Veteran's claims. If a complete grant of benefits requested is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).