Citation Nr: 1638401 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 13-14 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 4. Entitlement to service connection for bilateral leg amputation. 5. Entitlement to service connection for prostate cancer, to include whether new and material evidence has been received to reopen a previously denied claim. 6. Entitlement to service connection for diabetes mellitus, to include whether new and material evidence has been received to reopen a previously denied claim. 7. Entitlement to service connection for hypertension, to include whether new and material evidence has been received to reopen a previously denied claim. 8. Entitlement to service connection for atrial fibrillation and transient ischemic attacks (TIAs), to include whether new and material evidence has been received to reopen a previously denied claim. 9. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include whether new and material evidence has been received to reopen a previously denied claim. 10. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include whether new and material evidence has been received to reopen a previously denied claim. REPRESENTATION Appellant represented by: Robert Legg, Attorney at Law ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from April 1957 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2012 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. Also on appeal is an April 2016 rating decision, which denied service connection for bilateral leg amputation. In a September 2014 decision, the Board denied the Veteran's claims. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By way of a May 2015 order, the Court incorporated a Joint Motion for Partial Remand (JMPR) dated earlier that month that requested vacatur of the portion of the September 2014 Board decision that denied service connection pursuant to the theory that the Veteran was exposed to herbicides while serving in Thailand for ischemic heart disease and peripheral neuropathy of the upper extremities, and insofar as it found new and material evidence was not submitted regarding the claims for service connection for prostate cancer, diabetes mellitus, hypertension, atrial fibrillation with TIAs, and peripheral neuropathy of the lower extremities. The part of the Board's decision that found that the Veteran had not set forth any other theory of entitlement other than exposure to herbicides during service for service connection for the claimed disabilities was affirmed. Upon return from the Court, the Board again denied the appeal in a July 2015 decision. The Veteran appealed the Board's July 2015 decision to the Court, which issued an order in March 2016 granting a Joint Motion for Remand (JMR) filed by the Veteran and VA's Office of the General Counsel ("the parties"). The Court's order remanded the matter for action consistent with the terms of the JMR. The issues of service connection for ischemic heart disease, bilateral leg amputation, hypertension, and atrial fibrillation and TIAs are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C.A. § 7107 (a)(2) (West 2015). FINDINGS OF FACT 1. The Veteran's service records show that he was transferred from a base in the United States to Thailand, he credibly asserts that this flight had a layover in Vietnam. 2. The RO denied service connection for prostate cancer, diabetes mellitus type II (diabetes), hypertension, atrial fibrillation with TIAs, and peripheral neuropathy of the lower extremities, most recently in an April 2011 rating decision. After proper notification, the Veteran did not file a notice of disagreement with respect to that decision. 3. The Board's instant determination that the Veteran was exposed to Agent Orange in Vietnam is a sufficient basis for reopening the claim of service connection. 4. The Veteran's diabetes and prostate cancer are presumptively due to his Agent Orange exposure. 5. Peripheral neuropathy of the upper and lower extremities is secondary to diabetes. CONCLUSIONS OF LAW 1. An April 2011 RO decision, which denied the Veteran's claims of service connection for prostate cancer, diabetes, hypertension, atrial fibrillation with TIAs, and peripheral neuropathy of the lower extremities, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302 , 20.1103 (2015). 2. The criteria for reopening the claims of service connection for prostate cancer, diabetes, hypertension, atrial fibrillation with TIAs, and peripheral neuropathy of the lower extremities, have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.310 (2015). 4. The criteria for service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.310 (2015). 5. The criteria for service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2014). 6. The criteria for service connection for diabetes have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2014). 7. The criteria for service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.310 (2015). 8. The criteria for service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection in this case on the basis of Agent Orange exposure. The Board will first address this theory of entitlement after which the underlying claims upon which this theory is based will be addressed. A. Agent Orange Exposure The parties to the most recent JMR found that remand was necessary for the Board to provide an adequate statement of reasons or bases including a further discussion of the Veteran's credibility as it pertains to Agent Orange exposure in Thailand. Since that time, the Court has issued a precedential decision in the case of Parseeya-Picchione v. McDonald, 28 Vet. App. 171 (2016). In that decision, the Court noted that the appellant in that case had submitted evidence stating that "it would be the exception [rather] than the rule where a flight [from a base not in Southeast Asia to a base in Thailand] would bypass [Ton Son Nhut Air Base in Vietnam, where the veteran's alleged layover took place]." The record also included an email from James S. Howard, an archivist from the Air Force Historical Research Agency, reporting that "[a]s a general rule, military cargo aircraft, especially those engaged in 'airlines' would stop over at Ton Son Nhut Air Base, Republic of Vietnam en[ ]route to bases in Thailand. Very few of this sort of flight were made 'direct' to bases in Thailand from bases outside Southeast Asia." The record also contained a letter from a retired Major Robert E. Copner, U.S. Air Force, asserting that "[b]ased on my experience, it was common for military aircraft flying to and from airbases in Thailand to land at Ton Son Nhut [Air Base] and other Vietnam airbases." Parseeya-Picchione, 28 Vet. App. at 176. The Court's case in Parseeya-Picchione is directly relevant in the instant Veteran's appeal. Most specifically, in a September 2008 statement, the Veteran wrote that he had a refueling stop at Ton Sun Nut Air Force Base (AFB) in Vietnam between September 20, 1969, and September 22, 1969. In his VA application form, which had been filed one month prior, he marked the box "No" where asked if he served in Vietnam, but handwrote immediately next to this box "But flew into Vietnam to refuel." In the narrative explanation portion of the application, he stated that the Continental Air Lines flight he flew on was on the ground in Vietnam for about 2 hours during which time everyone went into the terminal to wait. The Veteran's service personnel records show that he arrived in Thailand on September 22, 1969, after having been assigned to MacDill AFB in Florida. Thus, the issue of Agent Orange exposure in Vietnam is reasonably raised. There is some question as to whether this theory of entitlement is still within the Board's jurisdiction to address. The Board finds that it is. Specifically, in its first decision in the case, in September 2014, the Board explained that the Veteran maintained that he was exposed to Agent Orange while he was stationed in Thailand during the Vietnam War and that ischemic heart disease should be presumptively service connected as a disease associated with exposure to herbicide agents. The Board concluded that "[n]either the Veteran nor his representative has set forth any other theory of entitlement." The Board went on to determine that, as to whether the Veteran was exposed to herbicide agents during service, his service personnel records do not show that he served in the Republic of Vietnam during the Vietnam War. The Board concluded that other than the possibility of exposure to herbicide agents, the Veteran had not identified any injury, disease or event to which his ischemic heart disease could possibly be related, and the record did not reasonably raise any other theory. In the May 2015 JMPR, the parties noted that the Veteran "is waiving his appeal insofar as the Board found that he had not 'set forth any other theory of entitlement' other than exposure to herbicides during his service in Thailand for service connection. The parties asked that the Board's decision be affirmed in this regard. Generally, an issue abandoned or affirmed at the Court is not subject to further review by the Board. See Pederson v. McDonald, 27 Vet. App. 276 (2015); Cacciola v. Gibson, 27 Vet. App. 45, 57 (2014). Here, however, a close reading of the Board's September 2014 decision, and the consequent JMPR, shows that the Veteran was not abandoning the theory of Agent Orange exposure in Vietnam. Instead, the Veteran was abandoning the theory of entitlement to service connection on any basis other than Agent Orange exposure. Looking closer at the Board's first decision in September 2014, it is important that the Board expressly included a discussion as to whether the Veteran had Agent Orange exposure in Vietnam, but then omitted any discussion of any theory other than Agent Orange exposure. Thus, in context, it is clear that the Board decided that the Veteran had only abandoned any non-Agent Orange theories of entitlement. The subsequent JMPR must be read in this context to mean that the Veteran was abandoning any theory other than Agent Orange exposure (in Vietnam, Thailand, or otherwise). Moreover, the Board's subsequent decision, in July 2015, noted the Veteran's abandonment in the JMPR, and the parties request that the Board decision be affirmed in this regard, but then went on to state that "the sole theory of service connection raised by the Veteran and the record is based on exposure to Agent Orange." Accordingly, the Board again discussed the possibility of Agent Orange exposure in Vietnam. Although the March 2016 JMR again referred to the issue as exposure to Agent Orange in Thailand, the JMR did not state that the Veteran was expressly abandoning the question of Agent Orange exposure in Vietnam. Accordingly, the question of Agent Orange exposure in Vietnam remains within the Board's jurisdiction. On this basis, the Board finds that the Veteran's lay statement attesting to a layover in Vietnam is credible. The evidentiary statements in the Court's decision in Parseeya-Picchione tend to refer to military flights transiting to Thailand, whereas the Veteran wrote in his July 2008 that he was on a Continental Airlines (i.e., non-military) flight. Nonetheless, it is not absolutely clear from the Parseeya-Picchione case that these types of non-military flights did not include military contracted flights. It is common knowledge and not reasonably in dispute that the United States Air Force contracted with multiple commercial airlines to transport service personnel to Southeast Asia during the Vietnam War. See, e.g., United States Air Force, Air Mobility Command Museum, Airlift During the Vietnam War - Aging Aircraft, ("As the demands for strategic airlift continued to increase, MAC turned to contract leasing of commercial aircraft."), http://amcmuseum.org/history/airlift-during-the-vietnam-war/; Harvard Baker Library, Lehman Brothers Collection, Continental Airlines, Inc., List of Deals (" The company formed Air Micronesia in 1968 to accommodate its military contract for the Military Airlift Command during the Vietnam."), http://www.library.hbs.edu/hc/lehman/company.html?company=continental_air_lines_inc. Because these facts are common knowledge and not reasonably in dispute, the Board may take administrative notice of them. See Sykes v. Apfel, 228 F.3d 259, 272 (3d Cir. 2000) (administrative notice, the administrative law counterpart of judicial notice, is the proper method for agency decisionmakers to apply knowledge not included in the record); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (the CAVC "may take judicial notice of facts of universal notoriety that are not subject to reasonable dispute."). Here, the Veteran's service records shows that he was transferred from a base in the United States to Thailand, and he credibly asserts that this flight had a layover in Vietnam. As the law and the evidence currently stand, it thus appears likely that the Veteran set foot in Vietnam during the layover. Accordingly, Agent Orange exposure is presumed on this basis. See 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). To the extent the case was remanded by the Court for a further discussion regarding the credibility of the Veteran's statements that he was exposed to Agent Orange in Thailand, the Board finds that there is no prejudice in omitting such a discussion. The Board is favorably finding that the Veteran was exposed to Agent Orange in Vietnam, and thus, the reasons for the JMR are moot. B. Reopening In light of the Board's finding that the Veteran was exposed to Agent Orange in Vietnam, the claims of service connection for prostate cancer, diabetes, hypertension, atrial fibrillation with TIAs, and peripheral neuropathy of the lower extremities, must be reopened. As the Board previously explained in its September 2014 decision, the claims were previously denied in a June 2009 rating decision. The Veteran did not file a notice of disagreement with that rating decision. In November 2010, he attempted to reopen the claims. In an April 2011 rating decision, the RO determined that new and material evidence had not been received to reopen the claims. The Veteran was informed of the April 2011 decision, and he did not file a notice of disagreement. Additionally, new and material evidence was not received within the time period in which to appeal. See 38 C.F.R. § 3.156 (b). The parties to the March 2016 JMR did not dispute the finality of the April 2011 rating decision. Thus, the April 2011 rating decision remains final. 38 U.S.C.A. § 7105 ; 38 C.F.R. §§ 20.302 , 20.1103. The Board above finds that the Veteran was exposed to Agent Orange in light of additional facts presented in the Court's Parseeya-Picchione case. The Board's determination, while not new and material evidence in this case per se, is sufficient to warrant reopening the claims. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). As a final matter, the Board notes that the facts discussed in the Parseeya-Picchione case included statements from an archivist from the Air Force Historical Research Agency and a retired major with U.S. Air Force. Such statements are not relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. First, the statements did not exist in the record of the instant case when the claims were denied in April 2011. Moreover, the statements appear to be personal recollections and knowledge of the affiants and not service reports or records obtained from the JSRRC. Thus, section 3.156(c) does not allow for reconsideration of the original claim. See Vigil v. Peake, 22 Vet. App. 63, 66 (2008). The Board accordingly finds that new and material evidence has been received to reopen the claims of service connection for prostate cancer, diabetes mellitus, hypertension, atrial fibrillation with TIAs, and peripheral neuropathy of the lower extremities. Hence, the appeal to this extent is allowed, and the claims are now subject to further review by the Board. C. Service Connection In light of the above determinations, the Board now finds that service connection for diabetes, prostate cancer, and peripheral neuropathy of the upper and lower extremities is warranted. First, the Veteran is diagnosed with these conditions, as confirmed by a September 2008 letter from his treating doctor. Next, because the Veteran is presumed to have been exposed to Agent Orange during his layover in Vietnam, a consequent nexus is presumed for prostate cancer and diabetes. See 38 C.F.R. § 3.309(e). Furthermore, the evidence, such as a May 2004 private treatment record and the September 2008 doctor's letter, establishes that the Veteran's upper and lower extremity peripheral neuropathy is secondary to diabetes. Thus, a secondary nexus is established for these conditions. See 38 C.F.R. § 3.310. While acute and subacute peripheral neuropathy are also presumptive diseases based on Agent Orange exposure, Note 2 to 38 CFR §3.309 (e) indicates that the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. The Veteran's peripheral neuropathy of the upper extremities was first diagnosed in 2004, and there is no indication of symptoms within two years of his last Agent Orange exposure. Thus, there is no basis for a grant of service connection on a presumptive basis for peripheral neuropathy. In light of the foregoing, all material elements of each claim are in equipoise. Therefore, the claims are granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's decision herein reopens multiple claims of service connection. To the extent this does not represent a complete grant of the relief sought on appeal, the Board is either granting or remanding those claims for further evidentiary development. No discussion of VA's duties to notify and assist is needed. 38 U.S.C.A. §§ 5103(b)(5)(A), 5103A(b)(3)(A). ORDER New and material evidence has been received to reopen a claim of service connection for prostate cancer. New and material evidence has been received to reopen a claim of service connection for diabetes. New and material evidence has been received to reopen a claim of service connection for hypertension. New and material evidence has been received to reopen a claim of service connection for atrial fibrillation and TIAs. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the right lower extremity. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the left lower extremity. Service connection for peripheral neuropathy of the right upper extremity is granted. Service connection for peripheral neuropathy of the left upper extremity is granted. Service connection for prostate cancer is granted. Service connection for diabetes is granted. Service connection for peripheral neuropathy of the right lower extremity is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. REMAND The Board has conducted a preliminary review of the remaining issues, but has found that further evidentiary development is warranted before a final decision may be reached on the claims regarding ischemic heart disease, hypertension, bilateral leg amputation and atrial fibrillation and TIAs. With specific regard to bilateral leg amputations, the Veteran filed a claim for this condition in April 2009. In that claim, he made clear that the claim was conditional on the grant of service connection for diabetes. He stated that the surgery occurred at St. Peter's Hospital in March 2015, but he would submit additional evidence "as needed." No records were obtained or submitted. Because there is no current medical evidence showing bilateral leg amputations, those private hospital records are needed. The Veteran should be given the opportunity to obtain them for review or request VA to obtain them on his behalf. With regard to the remaining claims, a VA examination is needed to address the complex medical questions raised. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With regard to ischemic heart disease, as explained in the prior Board decision, the evidence did not establish a diagnosis of the condition. With regard to hypertension and atrial fibrillation and TIAs, neither disease is a presumptive disease under § 3.309(e). Nonetheless, an examination is needed to determine whether the condition may nonetheless be related to Agent Orange exposure. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit or authorize VA to obtain all private (non-VA) health care providers who may have additional records pertinent to the remanded claims, to specifically include treatment for bilateral leg amputations at St. Peter's Hospital in March 2015. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Obtain all outstanding VA treatment records. The request should include non-electronic and/or archived paper records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After completing all development set forth in paragraphs 1-2 above, arrange for the Veteran to undergo a VA examination to address the claimed ischemic heart disease, atrial fibrillation and TIAs, and hypertension. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Does the Veteran have ischemic heart disease. If the Veteran previously had such a medical condition, but it is no longer extant, when did that condition resolve? For purposes of answering question (a), the examiner is asked to consider that, for VA purposes, 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. (b) Does the Veteran have any heart disease other than coronary artery disease? If the Veteran does not now have, but previously had, any such condition, when did that condition resolve? (c) Assuming as true that the Veteran was exposed to Agent Orange during service, is it at least as likely as not (i.e., is it at least equally probable) that his heart disease (other than ischemic heart disease), atrial fibrillation, or TIAs, is due to that Agent Orange exposure during service? In answering question (c), the examiner is asked to disregard that the disorders are not ones for which a "presumption" has been established, and, instead, should answer whether the conditions result from Agent Orange exposure notwithstanding that it is not on the "presumptive" list. (d) The examiner is also asked to provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension had its onset during, or is otherwise related to, his active service. The opinion should include consideration of the Veteran's presumed exposure to certain Agent Orange in Vietnam, in light of the National Academy of Sciences Institute of Medicine's conclusion that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. (e) If not directly related to service on the basis of question (b), is any disease proximately due to, the result of, or caused by any other medical condition(s)? If so, please identify the other medical condition(s). (f) If not caused by another medical condition, has any disease been aggravated (made permanently worse or increased in severity) by any other medical condition(s)? If so, please identify the other medical condition(s). Also, please identify whether any increase in severity was due to the natural progress of the disease. In answering these questions, please articulate the reasons underpinning all conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 4. After completing all actions set forth in paragraphs 1-3, plus any further action needed as a consequence of the development completed in paragraphs 1-3 above, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs