Citation Nr: 1629473	
Decision Date: 07/25/16    Archive Date: 08/04/16

DOCKET NO.  12-16 300	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II, as a result of exposure to herbicides.

2.  Entitlement to service connection for hypertension as a result of herbicide exposure and/or secondary to diabetes.

2.  Entitlement to service connection for high cholesterol as a result of herbicide exposure and/or secondary to diabetes.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Alexander Panio, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from September 1963 to August 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. 

The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The evidence shows that the veteran served in the Republic of Vietnam during the Vietnam era and has been diagnosed as having diabetes mellitus type 2.

2.  The Veteran's high cholesterol is not a disability that can be service-connected. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus, type II, have been met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2015).

2.  The criteria for service connection for high cholesterol have not been met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).
 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran has been diagnosed with diabetes mellitus, type II, which is managed by oral hypoglycemic agents and hyperlipidemia (high cholesterol) during the course of the appeal period.  The Veteran does not contend, and the record does not reflect that either of these conditions manifested during service or within a year of separation.  Instead, the Veteran asserts that he was exposed to Agent Orange or another listed herbicide while he was on temporary duty assignment (TDY) in the Republic of Vietnam.  The Veteran maintains, and has provided buddy statements to the effect that he was stationed in Cam Ranh Bay, Vietnam, for 63 consecutive days between May 1967 and August 1967.  The Veteran states that his diabetes mellitus is due to herbicide exposure and that his hypertension and high cholesterol are secondary to his diabetes mellitus.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Service connection may be granted on a primary basis if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Veterans exposed to Agent Orange or other listed herbicides are presumed service-connected for certain conditions, including diabetes mellitus even if there is no record of such disease during service.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  To qualify for entitlement to service connection on a presumptive basis, the disability must become manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii).   A veteran who, during active military service, served in the Republic of Vietnam between January 1962 and May 1975 shall be presumed to have been exposed to herbicide agents, including Agent Orange.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309.  

The question of whether the Veteran's diabetes mellitus should be service connected turns then on whether he actually served in Vietnam.  The Board finds that although his report of having served 63 consecutive days in Vietnam is not credible, it is at least as likely as not that he set foot in Vietnam on at least one day.  

In his initial claim, the Veteran stated he was in Vietnam from June 1967 to August 1967 at Cam Ranh Bay.  Statements received from the Veteran's sisters in December 2009 state that the Veteran was in Cam Ranh Bay in July and August 1967.  In his May 2012 substantive appeal the Veteran stated that he was mistaken and that he was actually in the Republic of Vietnam from the latter part of May 1967 to the latter part of July 1967.  Statements from other service personnel received in April and May 2012 indicate that the submitting service members were on TDY with the Veteran in July 1967.  In March 2015 the Veteran stated that he was in Cam Ranh Bay part of June, all of July and part of August 1967 and that he was there 63 consecutive days.  

There is no reference to Vietnam in either the Veteran's military personnel records or service treatment records.  Personnel records do indicate that the Veteran did have 63 days of TDY in Southeast Asia during his 4 years on active duty, but there is no indication that any of it was spent in the Republic of Vietnam.  Personnel records indicate that for the period in question (May-August 1967), the Veteran was stationed at Naha Air Force Base in Okinawa, Japan.  The evidence of record also contains documentation from the Air Force Historical Research Agency that while the Veteran's unit did deploy a number of personnel to Cam Ranh Bay; there was no record that the Veteran was one of them.

The service treatment records show that the Veteran was treated on numerous occasions at Naha Air Force Base in Okinawa during the period when he was purportedly deployed to Vietnam; including on June 15, 1967, June 26, 1967, July 12, 1967, July 14, 1967, July 19, 1967, and August 17, 1967.  However, in light of the above service and lay evidence, the Board finds that the Veteran likely served at least one day in Vietnam.  Moreover, the medical evidence shows that his diabetes mellitus is compensably disabling under Diagnostic Code 7913.  As such, service connection is warranted for diabetes mellitus type 2.

The Board notes finally that the Veteran's hyperlipidemia/high cholesterol is actually a characterization of laboratory results and is not, in and of itself, a disability for which service-connection may be granted.  See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996).  As such, service connection for high cholesterol is denied. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1992).  


ORDER

Service connection for diabetes mellitus, type II, is granted.

Service connection for high cholesterol is denied.


REMAND

The Board herein grants service connection for diabetes mellitus herein.  The Veteran has claimed that his diagnosed hypertension may be due to his diabetes mellitus.  As such, an examination is necessary in order to make a decision on the claim.  38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4).  Any outstanding VA treatment records should be obtained and associated with the Veteran's file prior to the examination.  See 38 U.S.C.A. § 5103A(c).

Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his hypertension and its relation to his diabetes mellitus.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

2.  Obtain and associate with the file any outstanding VA treatment records that pertain to the Veteran. 

3.  Then schedule the Veteran for an examination by an appropriate VA medical professional in order to determine whether it is at least as likely as not that the Veteran's hypertension (1) is related to or had its onset in service or within one year of discharge, to include as due to his presumed Agent Orange exposure;(2) was caused by his diabetes mellitus or (3) has been aggravated by his diabetes mellitus.  

If the examiner finds that the Veteran's hypertension was not caused by his diabetes mellitus but has been aggravated by it, then he/she should state the baseline level of severity of the hypertension, established by the earliest available medical evidence, and describe the extent to which the condition was permanently worsened by the Veteran's diabetes mellitus.

A response regarding both direct causation and aggravation must be provided or the examination report will be returned as inadequate.

The examiner should review the Veteran's claims file, conduct any necessary testing,  and provide an explanation for all elements of his/her opinion, citing to clinical findings, claims file documents, and/or medical literature as appropriate.  

The examiner should specifically indicate the reasons and bases for his/her conclusions.

4.  Then readjudicate the issue on appeal.  If any of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board. 

The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




____________________________________________
Steven D. Reiss 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs