Citation Nr: 1626318	
Decision Date: 06/30/16    Archive Date: 07/11/16

DOCKET NO.  11-26 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus type II (DM), to include as due to herbicide exposure.

2.  Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to DM.

3.  Entitlement to service connection for stroke, to include as due to herbicide exposure and as secondary to DM.

4.  Entitlement to service connection for heart disease, to include as due to herbicide exposure and as secondary to DM.

5.  Entitlement to service connection for erectile dysfunction (ED), to include as due to herbicide exposure and as secondary to DM.

6.  Entitlement to service connection for numbness in both hands, to include as due to herbicide exposure and as secondary to DM.
7.  Entitlement to service connection for numbness in both feet, to include as due to herbicide exposure and as secondary to DM.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Abrams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1964 to December 1967.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In November 2012, the Veteran testified before the undersigned Veterans' Law Judge (VLJ) via videoconference.  A copy of the hearing transcript is of record and has been reviewed.

This case was previously before the Board in July 2014 when it was remanded for additional development.  For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remand directives.  See Stegall v. West, 11. Vet. App. 268 (1998).

The issues of entitlement to service connection for hypertension,  stroke, ED, and numbness in both hands and feet, to include as due to herbicide exposure, and as secondary to DM, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A declassified Department of Defense document shows that herbicide agents were used at Don Muang Royal Thailand Air Force Base (RTAFB) during the Vietnam Era.

2.  The Veteran was in the U.S. Air Force (USAF) and served at the Don Muang RTAFB during the Vietnam Era.

3.  Based on the Veteran's credible assertions of serving at the Don Muang RTAFB, in October 1967, and resolving all reasonable doubt in his favor, the Veteran was exposed to herbicide agents during active service.

4.   Affording the Veteran the benefit of the doubt, his DM is presumed to be related to exposure to herbicide agents while serving in Thailand.

5.  Affording the Veteran the benefit of the doubt, his coronary artery disease is presumed to be related to exposure to herbicide agents while serving in Thailand.


CONCLUSIONS OF LAW

1.  The criteria for service connection for DM are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015).
2.  The criteria for service connection for coronary artery disease are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015).

Given the favorable dispositions of the claims of entitlement to service connection, the Board finds that all notification and development action needed to fairly adjudicate these claims have been accomplished.
II.  Legal Criteria 
Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. 
§ 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service.  38 C.F.R. § 3.303(d) (2015).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
Herbicide Presumption

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, 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 2014). 

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) (2015) 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) (2015).  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) (2015); 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 Don Muang RTAFB in Thailand.  38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307  (2015).

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).

III.  Analysis

As there is considerable overlap in the applicable evidence for the Veteran's appeals for entitlement to service connection for DM and heart disease, the Board will analyze both of these conditions together.

The Veteran asserts that he was exposed to herbicides in Thailand while stationed at Don Muang RTAFB.  

The Veteran meets the first threshold criteria for service connection, a current disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In May 2001 and October 2003 private treatment reports respectively, the Veteran was diagnosed with DM and mild coronary artery disease.

Affording the Veteran the benefit of the doubt, he meets the second threshold criteria for service connection, an in-service incurrence or aggravation of a disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015).  According to the Veteran's personnel records, he was stationed at Don Muang, with the 6th Aerial Port Squadron, in October 1967.  The Veteran asserted that while stationed at Don Muang in October 1967, he was exposed to chemicals used to clear the vegetation at the end of the runways, near the base perimeter, which was about a two or three mile area.  The Board notes that according to the Veteran's DD Form 214, his military occupational specialty (MOS) was as an A1C Air Passenger Specialist for the 6th Aerial Port Squadron.

Resolving all doubt in favor of the Veteran, the Board finds that service near the runways by the perimeter of the base has been established through the Veteran's lay statements and supporting documentation.  While 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, the Veteran has consistently reported that he was by the runways near the perimeter of the RTAFB, in Dong Muang, Thailand.  The records found in attempting to verify the Veteran's location during service show that he was part of the 6th Aerial Port Squadron, which would seem to include units that were near the perimeter fence around the base near the runways.  

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 Don Muang RTAFB.  His statements indicate that he had contact with the base perimeter while being near the base runways.  This description appears to be consistent with the duties of his military occupational specialty.  38 U.S.C.A. § 1154(a) (West 2014).  Moreover, his accounting as to the type of duties he performed 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) (noting 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 an A1C Air Passenger Specialist 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, and consistency with other evidence submitted on behalf of the Veteran.  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.  Those recollections are consistent with the corroborating service records.

Therefore, based on the recently Department of Defense document showing that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand, the Veteran's credible assertions of being on the runways along the perimeter of Don Muang RTAFB, 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 during active service, the presumption of service connection for DM and coronary artery disease attaches.  Therefore, service connection for DM and heart disease is warranted.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for DM, as due to herbicide exposure, is granted.

Entitlement to service connection for coronary artery disease, as due to herbicide exposure, is granted.




REMAND

The Veteran asserts that his hypertension, stroke, ED, and numbness in both hands and feet are a result of herbicide exposure, and were caused or aggravated by his DM.  The Board notes that in an April 2007 statement, the Veteran wrote that he did not have DM or any of his other secondary conditions while on active duty.  He asserted that he was exposed to herbicides while stationed at Don Muang in Thailand.  

The Board notes that the Veteran has never had a VA examination to determine the etiology of his hypertension, stroke, ED, and numbness in both hands and feet.  Because the Board is granting service connection for DM and heart disease, a VA examination is necessary to determine if the Veteran's conditions are etiologically related to active service, to as due to herbicide exposure, or were caused by or chronically aggravated by his service-connected DM and heart disease.

Accordingly, the case is REMANDED for the following actions:

1. Obtain copies of the complete updated VA clinical and private records of all evaluations and treatment the Veteran received for his hypertension, stroke, ED, and numbness in both hands and feet.  All requests for records and responses must be associated with the claims folder.

2. After the above has been completed, schedule the Veteran for an examination to determine if he is diagnosed with any condition related to hypertension, stroke, ED, and numbness in both hands and feet.  If so, the examiner should opine if these conditions are etiologically related to active service, to include herbicide exposure.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The claims file must be made available to the examiner, and the examiner must specify in the examination report that the claims file has been reviewed.  

The examiner is requested to opine as to:

a. Whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed conditions related to the Veteran's hypertension, stroke, ED, and numbness in both hands and feet are related to any incident or event in service, to specifically include herbicide exposure.  The examiner should note that the Board has determined that the Veteran was exposed to herbicides while stationed in Thailand.

b. Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected DM caused or chronically aggravated any condition related to his hypertension, stroke ED, and numbness in both hands and feet.

c. Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected heart disease caused or chronically aggravated any condition related to his hypertension, stroke ED, and numbness in both hands and feet.

3. A complete rationale for all opinions must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed.  

4. Thereafter, readjudicate the claims on appeal.  If the benefit sought on appeal remains denied in any respect, the Appellant and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond.

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).

These claims 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 2014).




______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs