Citation Nr: 1327831	
Decision Date: 08/30/13    Archive Date: 09/05/13

DOCKET NO. 12-00 776	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1. Entitlement to service connection for diabetes mellitus type 2, secondary to herbicide exposure.

2. Entitlement to service connection for coronary artery disease, secondary to herbicide exposure.

3. Entitlement to service connection for erectile dysfunction, secondary to diabetes mellitus type 2.

4. Entitlement to service connection for peripheral neuropathy of bilateral lower extremities, secondary to diabetes mellitus type 2.


REPRESENTATION

Veteran represented by:	James G. Fausone, Attorney


ATTORNEY FOR THE BOARD

Michael J. Adams, Associate Counsel


INTRODUCTION

The Veteran had active duty service from January 1968 to January 1972.

These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2011 (diabetes mellitus and coronary artery disease) and February 2012 (erectile dysfunction and bilateral lower extremity peripheral neuropathy) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.

The issues of entitlement to service connection for erectile dysfunction and peripheral neuropathy of bilateral lower extremities, secondary to diabetes mellitus type 2, 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 had active service in Thailand during the Vietnam War era.

2.  The Veteran is presumed to have been exposed to herbicide agents while in service in Thailand.

3.  The Veteran is currently diagnosed with diabetes mellitus type 2 and coronary artery disease.


CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus type 2 have been met.  38 U.S.C.A.  §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1(k), 3.102, 3.159, 3.303, 3.307, 3.309 (2012).

2.  The criteria for service connection for coronary artery disease have been met.  38 U.S.C.A.  §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1(k), 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants entitlement to service connection for diabetes mellitus type 2, and entitlement to service connection for coronary artery disease, which constitute a complete grant of the Veteran's claims.  Therefore, no discussion of VA's duty to notify or assist is necessary.

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.

For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a veteran must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure.  See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008).

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's service personnel records do not show that he served in Vietnam.  While the Veteran does claim to have flown through Saigon, he does not assert that he left the plane or spent any time on the ground.  Aside from the Veteran's assertions, there is no evidence of record indicating that the Veteran was ever on the ground in Vietnam.  See id.  Therefore, the Board concludes that the presumption of exposure to herbicides based on service in Vietnam does not apply.

Alternatively, the Veteran claims exposure to herbicides while stationed at the U-Tapao Air Force Base in Thailand.  VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era.  See 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.  This 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 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 the medical evidence of record, including VA treatment notes dated June 2012, reflect diagnoses of diabetes mellitus type 2 and coronary artery disease.  As such, the Board finds the Veteran has established current disabilities for the purpose of service connection.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  Additionally, both diabetes mellitus type 2 and coronary artery disease are enumerated by 38 C.F.R. § 3.309(e) as diseases presumptively associated with herbicide exposure.

The Veteran's service personnel records confirm that he was stationed at the U-Tapao Air Force Base (AFB) in Thailand from July 1968 to an unknown date (the Veteran's representative asserts that this was a full tour of duty but the record is unclear as to when the veteran actually departed).  He also returned to Thailand from April 1971 to June 1971 for temporary duty.  These duty periods are 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 tour in Thailand, the evidence will show presumptive exposure to herbicide.

The Veteran's service personnel records show that his period of service in Thailand was with the Strategic Air Command, 4258th Munitions Maintenance Squadron, at the U-Tapao Air Force Base.  His MOS is listed as munitions loader.  This is not one of the listed MOSs in the MR21-1MR that has been shown to have served on or near the air base perimeter.

However, in written statements the Veteran has reported that at the time that he was stationed at the U-Tapao airbase, he served as a munitions loader for the B-52s.  The Veteran asserts that this occupation required him to frequently travel along the perimeter road, the same road guarded by the Military Police, from the weapons depot to the B-52s on the runway.  To support his assertions the Veteran submitted photographs that reportedly show the close proximity of the B-52s and the runway to the perimeter of the base.  He also reported that his squadron's "hootch" and break room were close to the perimeter and that he observed soldiers spraying chemicals along the road on at least two occasions.

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 2 and coronary artery disease.  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 AFB.  While the record does not clearly identify whether the Veteran was exposed to herbicides while stationed at U-Tapao Air Base in Thailand, 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 had contact with the base perimeter while loading aircraft at the U-Tapao AFB.  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 munitions maintenance is not one of the MOSs 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 type of duties performed 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 medical records reflect diagnoses of diabetes mellitus type 2 and coronary artery disease, service connection is warranted as these disabilities are 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 2 is granted.

Entitlement to service connection for coronary artery disease is granted.


REMAND

Remand is required to obtain a VA examination in order to determine the etiology of the Veteran's currently diagnosed erectile dysfunction.  A VA examination is also required to determine whether or not the Veteran has bilateral lower extremity peripheral neuropathy and if so, the etiology of that neuropathy.

The Veteran contends that his erectile dysfunction and bilateral lower extremity peripheral neuropathy are the result of his now service connected diabetes.  VA outpatient notes from July 2012 reflect that the Veteran is currently diagnosed with erectile dysfunction.  The medical evidence also demonstrates that the Veteran underwent a diabetic foot exam in July 2012 the results of which indicate that he has slightly diminished sensation in his feet.  However, there is no current diagnosis of bilateral lower extremity peripheral neuropathy and the etiology of his symptoms is unknown.  The record is also negative for a medical opinion regarding the etiology of the Veteran's erectile dysfunction.

Because a VA examination is required to address the etiology of the Veteran's erectile dysfunction, as well as to diagnose and discern the origin of his symptoms of lower extremity neuropathy in his feet, a VA examination is warranted to address the specific allegations of the Veteran.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1. The RO/AMC should schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of his erectile dysfunction and lower extremity loss of sensation.  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 bilateral lower extremity peripheral neuropathy is present and if so, offer an opinion as to the etiology.  The examiner should also determine the etiology of the Veteran's erectile dysfunction.

Based on the examination and review of the record, the examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed bilateral lower extremity peripheral neuropathy or erectile dysfunction is related to the Veteran's service connected diabetes mellitus type 2.

A complete rationale for any opinion offered must be provided.

2. After completion of the foregoing and all other necessary development, the AMC/RO should re-adjudicate the claim for service connection for bilateral hearing loss.  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 Veteran 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).




______________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs