Citation Nr: 1333123 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 05-25 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for Type II diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease (CAD), also claimed as secondary to diabetes mellitus or as due to herbicide exposure. 3. Entitlement to service connection for peripheral vascular disease (PVD), also claimed as secondary to diabetes mellitus or as due to herbicide exposure. 4. Entitlement to service connection for peripheral neuropathy, also claimed as secondary to diabetes mellitus or as due to herbicide exposure. 5. Entitlement to an initial compensable rating for a left inguinal hernia scar prior to August 2, 2008, and in excess of 10 percent as of August 2, 2008. REPRESENTATION Appellant represented by: Margaret A. Costello, Attorney ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to May 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board denied the Veteran's claims in February 2008. In August 2008, the Veteran's attorney and the VA's General Counsel filed a Joint Motion to vacate the Board's decision and remand the case with the United States Court of Appeals for Veterans Claims. The Court granted the motion. The Board again denied the Veteran's claims in November 2008. In July 2009, the Veteran's attorney and the VA's General Counsel filed a Joint Motion to vacate the Board's decision and remand the case with the Court. The Court granted the motion. In November 2008, the Board remanded the claim for an initial compensable rating for a left inguinal hernia for additional development. A January 2009 rating decision granted an increased 10 percent rating for left inguinal hernia scar, effective December 11, 2008. A May 2010 rating decision found that the increased rating of 10 percent for scar was warranted effective August 2, 2008. However, as higher ratings are available before and after August 2, 2008, and the Veteran is presumed to seek the maximum available benefit, the claim for a higher rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In January 2010, the Board remanded the claims for service connection on appeal for additional development. The issue of entitlement to higher ratings for a left inguinal hernia scar, and entitlement to service connection for peripheral neuropathy and PVD are REMANDED to the RO. FINDINGS OF FACT 1. A recently declassified Department of Defense document shows that herbicide agents were used at Korat Royal Thailand Air Force Base (RTAFB) during the Vietnam Era. 2. Based on the Veteran's credible assertions of serving along the perimeter of Korat RTAFB, and resolving all reasonable doubt in his favor, the Veteran is presumed to have been exposed to herbicide agents during service. 3. The Veteran's diagnosed diabetes mellitus, type II, and coronary artery disease are presumed related to exposure to herbicide agents while serving in Thailand. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for coronary artery disease are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Additionally, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2012). The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, soft tissue sarcoma, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), Parkinson's disease, and hairy cell leukemia and other chronic B-cell leukemias. 38 C.F.R. § 3.309(e) (2012). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e) (2012); 75 Fed. Reg. 53,202 (August 31, 2010). While all Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, the Veteran claims he is entitled to the presumption of herbicide exposure because he was stationed at Korat RTAFB in Thailand. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2012). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. That allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, that applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). The Veteran does not assert that he served in Vietnam. He claims that he was exposed to herbicides in Vietnam during brief stops while en route to Thailand. He contends that he was exposed to Agent Orange when a plane landed in Vietnam to refuel while en route to Thailand. In a January 2003 statement in support of claim, he explained that he was on the ground in some cases for two or more hours. In support of his claim, he submitted a June 2004 statement from a retired United States Air Force major and pilot who stated that it was common for military aircraft flying to Thailand to make en route stops at airbases in Vietnam. However, stops to Vietnam while en route to Thailand are not documented in the Veteran's service personnel records. Therefore, the Board finds that the evidence does not establish that the veteran served in Republic of Vietnam during the Vietnam era for purposes of the regulation governing the presumption of service connection for certain diseases due to herbicide exposure. Alternatively, the Veteran claims that he was exposed to herbicides while serving in Thailand from June 1964 to August 1964. That service is documented in the service personnel records. He specifically contends that there was local spraying of Agent Orange around the base for weed control. In a January 2003 statement in support of claim, he alleged that "they sprayed a lot in 1963" and that he arrived in 1964, was in the field, and ate local vegetables. In an October 2003 statement in support of claim, he stated that his unit was deployed to Korat, Thailand to build a motor pool. It was his understanding that dioxin was used around the area of the motor pool. The veteran submitted a series of articles to support his allegation of herbicide exposure while in Thailand. In correspondence dated in October 2003, the RO sought additional evidence from the United States Armed Service Center for Research of Unit Records (USASCRUR) regarding the veteran's claim of herbicide exposure in Thailand. In a February 2004 response, the USASCRUR stated that herbicides were not sprayed or stored near United States personnel in Thailand and that herbicides were only sprayed in Thailand for test purposes in the early and mid 1960s in remote jungle areas. While the correspondence appears to reference the name of another veteran, the facts are objective, non-specific to an individual veteran, and specific to the issue of exposure to herbicides and should not be discounted due to any clerical error. In September 2003, a consultant with the Compensation and Pension Service provided that according to the Department of Defense, extensive series of tests using Agents Orange and Purple were conducted in 1964 and 1965 at the Replacement Training Center of the Royal Thai Army near Pranburi, Thailand. The Veteran does not assert nor does the evidence show that he served near Pranburi. In September 2006, the National Archives and Records Administration provided written verification that the Veteran's unit was on a support mission in Thailand from June 25, 1964, to August 10, 1964. It was noted that the 725th Maintenance Battalion provided for the "CI-IG" automotive, armament, and signal inspections of all major units of the Division. In an October 2011 letter, G. D. Dunn, M.D., from the VA medical center in Nashville stated that the Veteran had diabetes and ischemic heart disease. The doctor stated that the Veteran served in Thailand and was exposed to herbicides. Those two conditions are on the list of diseases related to herbicides. The doctor opined that it was at least as likely as not that diabetes and ischemic heart disease were caused by the exposure to herbicides. In an April 2012 response from the Defense Personnel Records Information Retrieval System (DPRIS), it was noted that 1964 unit histories submitted by the 725th Maintenance Battalion and the 25th Infantry Division were reviewed. The histories document that the mission of the 725th Maintenance Battalion was to support all units of the 25th Infantry Division on Oahu, at Pohakuloa Training Area, and in Southeast Asia. The histories also document that Company B of the 725 Maintenance Battalion participated in a Support Mission in Thailand from June 25, 1964, to August 10, 1964. However, the records do not mention or document the exact location of the mission or that the unit was stationed at the Korat Royal Thai Air Force Base. Initially, the Board notes that the Veteran has a current diagnosis of diabetes mellitus, type II, and coronary artery disease. Service records, confirm that the Veteran was in Thailand. The remaining critical element as to whether the Veteran is entitled to the presumption of herbicide exposure is whether he served along the perimeter of Korat RTAFB. Resolving all reasonable doubt in favor of the Veteran, the Board finds that that service near the perimeter of the base has been established through the Veteran's lay statements, buddy statements, and supporting documentation. The Veteran submitted a copy of a June 1964 pay voucher indicating that the Veteran was located at APO 33, which appears to suggest that the Veteran was in Korat, Thailand during the VA-designated timeframe for which herbicide exposure in Thailand may be presumed. The Veteran's service separation form shows that the Veteran's military occupational specialty (MOS) was listed as fuel and electrical system repairman. The Board recognizes that the Veteran's MOS is not a listed MOS in the MR21-1MR that has been shown to have served on or near the air base perimeter. However, the Veteran has consistently reported that he worked on the construction of a motor pool near the perimeter of the Royal Thai Air Force Base, in Korat, Thailand. In addition, the Veteran submitted an October 2011 letter, from G.L.S. who stated that he served with the Veteran as a member of Company B 725th Maintenance Battalion, 25th Infantry Division. He asserted that in the middle of June 1964 they were deployed to Camp Friendship/RTAF in Korat, Thailand and that this was a small camp. They were there to do maintenance on all types of faulty equipment vehicles, weapons, and other items. That at times took them outside of the perimeters of the camp. They also worked with the Thai soldiers offering combat training and that took them outside of the perimeter of Camp Friendship in Korat, Thailand. The records found in attempting to verify the Veteran's location during service show that his unit armed and inspected all major units of the division, which would seem to include units stationed at the perimeter of the base and involve visiting the perimeter of the base during service. The Veteran has also indicated that his other duties that he performed put him near the perimeter base in Korat to include being on a clean up detail, which put him in close proximity to the base perimeter. In addition, he asserted that his sleeping area, latrines, and showers were near the perimeter as well. He also reported going to the air strip to watch planes take off and land and that placed him near the perimeter. The Veteran has also submitted pictures of "bare spots" in the vegetation, near or on the motor pool. In this case, the Board finds that there is no basis in the record to question the Veteran's credibility regarding his statements as to the nature and responsibilities of his service while at Korat RTAFB. His statements and those provided by fellow service member, D.L.S. indicate that he had contact with the base perimeter while constructing a motor pool. This description appears to be consistent with the duties of his military occupational specialty. 38 U.S.C.A. § 1154(a) (West 2002). Moreover, his accounting as to the type of duties he performed within the perimeter of Korat RTAFB are deemed competent lay evidence of what the Veteran observed during his period of service in Thailand. Layno v. Brown, 6 Vet. App. 465 (1994) (lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Further, although fuel and electrical system repairman is not an MOS conceded to have been exposed to herbicides in Thailand, the Board finds the Veteran's statements credible. The Board, when considering whether lay evidence is satisfactory, may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23 (2007). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. There is nothing in the available service records that would refute the Veteran's recollections or those of fellow service member, D.L.S. Those recollections are consistent with the corroborating service records. Therefore, based on the recently unclassified Department of Defense document showing that that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand, the Veteran's credible assertions of serving on various occasions along or in close proximity to the perimeter of Korat RTAFB, the October 2011 letter from fellow service member D.L.S, records showing that the Veteran's unit supplied and inspected all major units of the division, and resolving all reasonable doubt in his favor, the Board finds that the Veteran is presumed to have been exposed to herbicide agents during service. As the Veteran is shown to have been exposed to herbicides, the presumption of service connection for diabetes mellitus, type II and coronary artery disease, attaches. Therefore, service connection for diabetes mellitus, type II, and for coronary artery disease is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus, type II, is granted. Service connection for coronary artery disease is granted. REMAND Unfortunately, a remand is required for the remaining service-connection claims for peripheral neuropathy and for PVD, both including as secondary to service-connected diabetes mellitus or herbicide exposure and the claim for an initial higher rating for the service-connected left inguinal hernia scar. Service connection may be established on a secondary basis for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Secondary service connection is also warranted when a service-connected condition has aggravated a nonservice-connected disability. Compensation is limited to the degree of disability beyond the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). VA and private medical records show that the Veteran is diagnosed with PVD and peripheral neuropathy. PVD is not a disability for which presumptive service connection due to in-service exposure to herbicides is provided. For both disabilities, the matter of direct service connection must be considered, particularly in light of the now conceded in-service herbicide exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Board finds that a VA examination to determine the etiology of the Veteran's claimed PVD and peripheral neuropathy is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). With regard to the claim for higher initial ratings for a left inguinal hernia scar, the Board notes that the Veteran last underwent a VA examination to address the severity of that condition in August 2008. As it has been more than 5 years since the Veteran has been provided a VA skin examination, a remand is warranted to ensure that record contains evidence of the current severity of the Veteran's service-connected scar. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). Prior to arranging for the Veteran to undergo further examination, all outstanding VA records should be obtained and associated with the claims file. The claims file currently includes outpatient treatment records from the Nashville VA Medical Center (VAMC) dated through January 2009. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain from the Nashville VAMC all outstanding medical records from January 2009 to the present. 2. Thereafter, schedule the Veteran for a VA examination to determine the etiology of peripheral vascular disease and peripheral neuropathy. The examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. The examiner should provide the following: (a) Identify all diagnosed peripheral neuropathy and peripheral vascular disease (PVD) and opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed peripheral neuropathy or PVD is related to the Veteran's active service, to include conceded exposure to herbicides during service. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy or PVD was caused by the Veteran's service-connected diabetes mellitus or any other service-connected disability. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed peripheral neuropathy or PVD is aggravated by the Veteran's service-connected diabetes mellitus or any other service-connected disability. Aggravation means a permanent worsening of the disorder beyond the natural progress of the disorder. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 38 C.F.R. § 3.310 (2012). 3. Then, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the severity of the Veteran's service-connected left inguinal hernia scar. The examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should set forth all examination findings, with the complete rationale for all conclusions reached. All findings, including functional limitations, with respect to the scar should be set forth in the examination report. 4. Then, readjudicate the claims remaining on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs