Citation Nr: 1338903	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  10-40 573	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure.

2.  Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II.

3.  Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus, type II.

4.  Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus, type II.

5.  Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, type II.

6.  Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, type II.

REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Anthony M. Flamini, Counsel 


INTRODUCTION

The Veteran served on active duty from March 1970 to February 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for erectile dysfunction and peripheral neuropathy of the extremities 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.  The Veteran served at U-Tapao Royal Thai Navy Airfield during the Vietnam Era as an Avionics Communications Specialist and had duties on the flight line near the air base perimeter; exposure to herbicides is thus conceded. 

2.  Diabetes mellitus, type II, is a disability that is presumed related to herbicide exposure. 


CONCLUSION OF LAW

Diabetes mellitus, type II, is presumed to have been incurred in active military service.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In this decision, the Board grants entitlement to service connection for diabetes mellitus, type II.  This award represents a complete grant of the benefit sought on appeal.  Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 
 
Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. 
§ 3.303(a).  Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In order to establish service connection, the evidence must generally show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 

Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden elements can be established through a demonstration of continuity of symptomatology.  The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013).  For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). 

Diabetes mellitus is listed as a chronic condition under 38 C.F.R. § 3.309(a).  Therefore, service connection can be granted for diabetes mellitus on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b).  In addition, such may be presumed to have been incurred in service if it becomes manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A.         §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. 

Additionally, the law provides that "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); 38 C.F.R. § 3.307.  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: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), ischemic heart disease (including coronary artery disease), all chronic B-cell leukemias, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).

Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  38 C.F.R. § 3.307(d)(6)(i).  Agent Orange is generally considered an herbicide agent and will be so considered in this decision.

Here, the Veteran claims exposure to herbicides while stationed at U-Tapao Royal Thai Navy Airfield in Thailand.  VA has also established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era.  See 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 is extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases.  This allows for presumptive service connection of the diseases associated with herbicide exposure.

The majority of U.S. servicemen 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 these 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, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q).

Preliminarily, the Board observes that correspondence from the Veteran's private physician dated in March 2009 indicated that he has been diagnosed as having diabetes mellitus, type II, and has been prescribed insulin to treat it .  As such, the Board finds the Veteran has established a current disability for the purpose of service connection.  See Shedden, supra.  Additionally, diabetes mellitus, type II, is enumerated by 38 C.F.R. § 3.309(e) as a disease presumptively associated with herbicide exposure.

Additionally, the Veteran's service personnel records confirm that he was stationed at U-Tapao Royal Thai Navy Airfield in Thailand from February 1973 to February 1974.  This duty period was during the "Vietnam era" during which VA has acknowledged that herbicides were used near the air base perimeter of certain bases in Thailand.  Accordingly, if the Veteran is found to have served on or near the air base perimeter during his time in Thailand, then the evidence will qualify for presumptive exposure to herbicide.

The Veteran's service personnel records show that he served as an Avionics Communications Specialist attached to the 307th Avionics Maintenance Squadron, Consolidated Aircraft Maintenance Wing, Provisional, during his time at U-Tapao Royal Thai Navy Airfield.  This is not one of the listed military occupational specialties identified in the MR21-1MR that has been shown to have served on or near the air base perimeter.

However, the Veteran has indicated that he worked on the flight line at U-Tapao Royal Thai Navy Airfield.  Furthermore, his service personnel records confirm that his job duties included identifying and solving problems involving the radio systems installed on Boeing B-52 Stratofortresses and KC-135 Stratotankers.  Review of the layout of U-Tapao Royal Thai Navy Airfield reveals that the flight line was in close proximity to the air base perimeter.  

Upon review, the Board finds the evidence supports the presumption of exposure to herbicides for the purpose of establishing entitlement to service connection for diabetes mellitus, type II.  The evidence of record shows that the Veteran served in Thailand during the Vietnam era, the period in which VA has acknowledged that herbicides were used near the air base perimeter at U-Tapao Royal Thai Navy Airfield.  While the record does not clearly identify whether the Veteran was exposed to herbicides while stationed at U-Tapao Air Base, the Board highlights that there is no basis in the record to question the Veteran's credibility regarding his statements.  The statements by the Veteran indicate that he regularly was in close proximity to the base perimeter while performing his duties as Avionics Communications Specialist on the flight line, which was adjacent to the base perimeter.  The Veteran's statements as to the type of duties performed by him while stationed in Thailand are competent lay evidence of what the Veteran observed during his period of service.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a 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 Avionics Communications Specialist is not one of the military occupational specialties conceded to have been exposed to herbicides in Thailand, the Board finds the Veteran's testimony credible.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also 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.).  As there is no evidence of record that contradicts the Veteran's claim as to the duties performed on the U-Tapao flight line during his service in Thailand, they must be presumed to be accurate.  Any reasonable doubt regarding the accuracy of the Veteran's statements is resolved in favor of the Veteran.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's statements, taken in conjunction with the information regarding herbicide use in Thailand, support a finding that the Veteran was exposed to herbicides during service.  As the Veteran's post-service records reflect a diagnosis of diabetes mellitus, type II, service connection is warranted as this disability is presumed to have been incurred during active duty service based on the Veteran's exposure to herbicides during service in Thailand.



ORDER

Entitlement to service connection for diabetes mellitus, type II, is granted.


REMAND

The Veteran also seeks entitlement to service connection for erectile dysfunction, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity, all claimed as secondary to his diabetes mellitus, type II, which is now service connected.  Remand is required to obtain a VA examination in order to determine whether or not the Veteran has erectile dysfunction as well as peripheral neuropathy of the extremities and if so, the probable etiology of those disabilities.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In addition, as discussed above, the record contains correspondence dated in March 2009 from the Veteran's private physician indicating that he is being treated for diabetes mellitus, type II, with insulin.  However, no treatment records have been associated with the claims file.  As such, remand is also required so that any outstanding records may be obtained.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Contact the Veteran and ask that he identify or submit any additional pertinent evidence in support of his claims, to include treatment records from D. Mohlman, D.O.  Ask that the Veteran provide those records or authorization for those records to be obtained.  If authorization is provided, request all treatment records from the authorized facilities.  Additionally, if the Veteran indicates that he receives any VA treatment, then obtain those VA treatment records from the appropriate facility(ies) and associate them with the claims file.

Document all attempts to secure this evidence in the claims file.  If the records cannot be obtained, then notify the Veteran in a letter that identifies the unavailable records; briefly explains the efforts made; and describes any further action to be taken with respect to the claims.  Give the Veteran and his representative an opportunity to respond.

2.  Next, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiologies of any erectile dysfunction and neurological disorders of the extremities.  The claims file must be made available to the examiner for review prior to the examination.  All necessary tests should be performed.

The examiner should specifically determine if erectile dysfunction as well as peripheral neuropathy of the extremities are present and if so, offer an opinion as to the probable etiologies of these disabilities.  Based on the examination and review of the record, the examiner should address whether it is at least as likely as not (50 percent or greater probability) that any diagnosed peripheral neuropathy or erectile dysfunction is caused or aggravated by the Veteran's service-connected diabetes mellitus, type II.

Aggravation is defined as a permanent worsening beyond the natural progression of the disease.

A complete rationale for any opinion offered must be provided.

3.  After completion of the foregoing and all other necessary development, readjudicate the claims for entitlement to service connection.  If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs