Citation Nr: 1744643 Decision Date: 10/06/17 Archive Date: 10/17/17 DOCKET NO. 14-30 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to non-service connected pension benefits. 2. Entitlement to service connection for diabetes mellitus, type 2 (DM). 3. Entitlement to service connection for coronary artery disease (CAD). 4. Entitlement to service connection for prostate cancer. 5. Entitlement to service connection for eye cataracts. 6. Entitlement to service connection for glaucoma. 7. Entitlement to service connection for hypertension. 8. Entitlement to an increased evaluation for a painful scar of the dorsal septum, currently 10 percent disabling. 9. Entitlement to an increased evaluation of the residuals of a fractured nose, scars, currently 10 percent disabling. 10. Entitlement to an increased evaluation of the residuals of a fractured nose, currently noncompensable. REPRESENTATION Appellant represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD M. Sopko, Counsel INTRODUCTION The Veteran had active service from May 1952 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision and an April 2011 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Board notes the Veteran was in hospice care as of November 2016. The Board decides Issues 1-3 below. The Board REMANDS Issues 4-10 to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not submit a Notice of Disagreement (NOD) to appeal VA's denial of non-service connected pension benefits. 2. The Veteran was exposed to herbicide agents while stationed in Thailand. 3. Service caused the Veteran's DM. 4. Service caused the Veteran's CAD. CONCLUSIONS OF LAW 1. The criteria for timely filing a NOD to the April 2011 administrative decision denying non-service connected pension benefits have not been met; 38 U.S.C.A. §§ 7105, 7108 (West 2014); 38 C.F.R. §§ 20.202, 20.302(b) (2017). 2. The criteria for service connection for DM due to herbicide exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for CAD due to herbicide exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Non-Service Connected Pension Benefits The Board must have jurisdiction to review the denial of a claim. To have jurisdiction, the Veteran must submit a written Notice of Disagreement (NOD) within one year of notification of VA's denial of the claim to initiate an appeal. VA denied the Veteran's claim for non-service connected pension benefits through an administrative decision in April 2011. The Veteran did not appeal this denial. Indeed, the Veteran's attorney elected not to include this issue in the NOD he submitted to VA in January 2012. Accordingly, the Board must dismiss the claim. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.101(d). Direct Service Connection 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 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). DM The Veteran served at the Nakhon Phanom Royal Thai Air Force Base (RTAFB) from December 1968 to December 1970. VA regulations do not presume "herbicide agent" - as VA defines that term in 38 C.F.R. § 3.307(a)(6)(i) - exposure for veterans who served in Thailand. However, VA has adopted a procedure for verifying exposure to herbicide agents in Thailand during the Vietnam Era. The first step is determining whether the veteran served at one of the qualifying RTAFBs, and served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. According to his service personnel records (SPR), the Veteran served at a qualifying RTAFB, but not in any of the aforementioned positions. Notwithstanding this, the Veteran's SPRs show the Air Force assigned him to the "Taxi Section of Vehicle Operations." In an April 1970 Performance Report (PR), the Air Force noted the Veteran was "responsible for the efficient operation of the Base Taxi Section by providing transportation for an on-call basis for both the Tactical Unit Operational Center Flying Mission and on base movement of personnel and light cargo." The PR noted he was "responsible for providing supervision and guidance for approximately 10 Local Nationals and 4 military vehicle operators to operate an effective Base Taxi Service," and he "maintained Squadron weapons, munitions and fire protection equipment in a high state of readiness." The PR supports the Veteran's January 2017 statement in which he noted he traveled to the base perimeter 3-4 times per week to transport "air craft crew" and to "load and unload cargo." Accordingly, the Board finds the Veteran's service at Nakhom Phanom RTAFB exposed him to herbicide agents. Given the Veteran's in-service exposure, VA will service connect the Veteran's DM pursuant to 38 C.F.R. § 3.309(e). CAD Given the Board's finding of in-service exposure to herbicide agents above, VA will service connect the Veteran's CAD pursuant to 38 C.F.R. § 3.309(e). ORDER Entitlement to non-service connected pension benefits is dismissed. Entitlement to service connection for diabetes mellitus, type 2, is granted. Entitlement to service connection for coronary artery disease is granted. REMAND The Veteran's attorney submitted two Freedom of Information Act (FOIA) requests in January 2012 when he began representing the Veteran. VA did not respond to the requests. Remand is therefore warranted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran's attorney with a complete copy of the Veteran's claims file pursuant to the January 2012 FOIA request. 2. Allow the Veteran an appropriate time to review and respond to the materials sent. Conduct any development warranted if the Veteran submits new evidence. Then consider all of the evidence of record and readjudicate the issues on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his attorney, and return the appeal to the Board after the Veteran has had an adequate 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). 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). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs