Citation Nr: 1756499 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-35 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cataracts, to include as secondary to diabetes mellitus and, if so, whether service connection is warranted. 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to exposure to herbicides or as secondary to diabetes mellitus. 4. Entitlement to service connection for kidney disease, to include as due to exposure to herbicides or as secondary to diabetes mellitus. 5. Entitlement to service connection for erectile dysfunction, to include as due to exposure to herbicides or as secondary to diabetes mellitus. 6. Entitlement to service connection for peripheral vascular disease of the lower extremities, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus. 7. Entitlement to service connection for hypertension, to include as due to exposure to herbicides or as secondary to diabetes mellitus. 8. Entitlement to service connection for heart disease, to include as due to exposure to herbicides or as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to June 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee. The Veteran presented testimony at a Board hearing in October 2016, and a transcript of the hearing is associated with his claims folder. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2012). The issues of entitlement to service connection for peripheral vascular disease of the lower extremities and hypertension 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 June 2009 Board decision denied restoration of service connection for diabetes mellitus and related cataracts. 2. Evidence associated with the claims file after the final denial in June 2009 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus and related cataracts. 3. Affording the Veteran the benefit of the doubt, the Veteran served in the Republic of Vietnam in May 1966. 4. The Veteran has diabetes mellitus presumptively related to his exposure to herbicides during military service. 5. The Veteran has cataracts due to his type 2 diabetes mellitus. 6. The Veteran has peripheral neuropathy of the upper and lower extremities due to his type 2 diabetes mellitus. 7. The Veteran has kidney disease due to his type 2 diabetes mellitus. 8. The Veteran has erectile dysfunction due to his type 2 diabetes mellitus. 9. The Veteran has coronary artery disease with angina presumptively related to his exposure to herbicides during military service. CONCLUSIONS OF LAW 1. The June 2009 Board decision is final. 38 U.S.C. §§ 5103, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100 (2017). 2. Evidence received since the June 2009 Board decision is new and material and the claims for service connection for diabetes mellitus and cataracts are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for cataracts due to diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.310 (2017). 5. The criteria for service connection for peripheral neuropathy of the bilateral upper and lower extremities due to diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.310 (2017). 6. The criteria for service connection for kidney disease due to diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.310 (2017). 7. The criteria for service connection for erectile dysfunction due to diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.310 (2017). 8. The criteria for service connection for coronary artery disease with angina have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Applications to Reopen A June 2009 Board decision found that a September 2003 RO decision properly severed service connection for the Veteran's diabetes mellitus and related cataracts because the initial grant of service connection was based on clear and unmistakable error. The Veteran had not set foot Vietnam and the Board denied the claim to restore service connection. This decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. In statements dated in August 2012 and July 2013, a fellow service member reported that he was a crewmember on the same flight as the Veteran in May 1966 and that they flew to Tan Son Nhut air base in the Republic of Vietnam for refueling. He reported that when the plane landed the passengers were told to stay near the plane. Those statements address an unestablished fact; whether the Veteran set foot in Vietnam. The Board finds that these statements represent new and material evidence and, therefore, the claims of entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides, and entitlement to service connection for cataracts as secondary to diabetes mellitus are reopened. See 38 C.F.R. § 3.156. II. 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). A Veteran who, during active 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 C.F.R. § 3.307 (a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). The list of diseases includes type 2 diabetes mellitus and coronary artery disease. Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran seeks entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides, and cataracts, peripheral neuropathy of the upper and lower extremities, kidney disease, erectile dysfunction, and heart disease, all to include as due to exposure to herbicides or secondary to diabetes mellitus. Service personnel records reveal that the Veteran served aboard the U.S.S. Hancock in the Vietnam area from December 1965 to January 1966, February 1966 to March 1966, March 1966 to April 1966, and April 1966 to May 1966. A Transfer and Receipt record dated in May 1966 reveals that the Veteran was transferred from the U.S.S. Hancock for separation processing and the deck log of the ship, from that same date, reveals that the ship was at sea in the South China Sea. In recently submitted evidence, the Veteran has credibly reported that he was flown from the ship to Ton Son Nhut airbase in the Republic of Vietnam where he disembarked the aircraft while it was refueled. In a statement dated in August 2012, B.T. reported that he was assigned to the aircraft used to carry passengers and supplies as needed to and from the air base at Tan Son Nhut and the Naval base in the Philippines. The individual reported that they flew daily except Sundays and usually flew off in the morning to Tan Son Nhut with any passengers leaving the ship. The aircraft did not carry a full load of fuel because of the added weight of the passengers and their belongings, so they had to go to the air base to refuel. B.T. reported that he was aboard the aircraft on the day in question in May 1966. In a subsequent statement dated in July 2013, B.T. reported that he a crewmember on the same flight as the Veteran in May 1966 and that they flew to Ton Son Nhut air base in the Republic of Vietnam for refueling. He reported that once landed the passengers were told to stay near the plane. The Veteran has credibly reported that he stepped off the transport aircraft at Tan Son Nhut air base in the Republic of Vietnam. See, e.g., Hearing Transcript. Post service treatment records reveal that the Veteran has been diagnosed with type 2 diabetes mellitus and coronary artery disease with angina. Affording the Veteran the benefit of the doubt, he landed in the Republic of Vietnam in May 1966 during his transfer off of the U.S.S. Hancock. As such, the Veteran has service in the Republic of Vietnam and is presumed to have been exposed to herbicides. During the period on appeal the Veteran was diagnosed with type 2 diabetes mellitus and coronary artery disease with angina, and as type 2 diabetes mellitus and coronary artery disease and angina are disabilities for which there is a presumption of incurrence in service based upon exposure to herbicides, service connection for type 2 diabetes mellitus and coronary artery disease with angina is granted. In a statement dated in August 2002, a VA provider reported that the Veteran's diabetes mellitus type 2 caused his bilateral cataracts as this is a known complication of diabetes mellitus. The Veteran was afforded a VA examination in March 2003. After examination the Veteran was noted to be diagnosed with diabetes mellitus type 2, but insulin dependent. The examiner noted that the Veteran had diabetic complications of early cataracts and mild impotency. Therefore, with regard to the Veteran's claims for service connection for cataracts and erectile dysfunction, service connection is granted, as these disabilities are due to his diabetes mellitus disability. Multiple post service treatment records reveal that the Veteran has been diagnosed with diabetic neuropathy of all extremities. See, e.g., VA Treatment Notes dated April 2010, April 2011, October 2012, and April 2013. As such, service connection for peripheral neuropathy of all extremities as due to the Veteran's diabetes mellitus is granted. Multiple post service treatment records reveal that the Veteran has been diagnosed with kidney disease due to diabetes mellitus and diabetic nephropathy. See, e.g., VA Treatment Notes dated July 2011 and January 2012. As such, service connection for kidney disease as due to the Veteran's diabetes mellitus is granted. Finally, multiple post service treatment records reveal that the Veteran has been diagnosed with coronary artery disease. ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides, is reopened. As new and material evidence has been received, the previously denied claim of entitlement to service connection for cataracts, to include as secondary to diabetes mellitus, is reopened. Service connection for diabetes mellitus is granted. Service connection for cataracts is granted. Service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted. Service connection for kidney disease is granted. Service connection for erectile dysfunction is granted. Service connection for coronary artery disease with angina is granted. REMAND Treatment records reveal that the Veteran has been diagnosed with peripheral vascular disease of the lower extremities and hypertension. The Veteran was afforded a VA examination with regard to diabetes mellitus in March 2003. Examination of the Veteran's feet showed that he had pulses in his feet, but they were rather faint in the right foot. In addition to the complications noted above, the examiner reported that the Veteran had postural hypotension. It was reported that the Veteran took medication for hypotension, angina, and hyperlipidemia. The Veteran's cardiac symptoms were reported to predate the diagnosis of the Veteran's diabetes, and were as likely as not unrelated etiologically to the diabetes mellitus. However, the examiner reported that the Veteran's diabetes mellitus may aggravate these conditions. Although the examiner identifies pulse issues with the lower extremities, the examiner does not provide a clear opinion regarding to their etiology. In addition, the examiner reported cardiac symptoms may be aggravated by the Veteran's diabetes mellitus. The examiner's statements are too speculative to establish a medical nexus. See Polovick v. Shinseki, 23 Vet. App. 48 (2009). As such, the issues of entitlement to service connection for peripheral vascular disease of the lower extremities and hypertension must be remanded for an adequate VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the Board's finding in this decision that the Veteran is presumed to have been exposed to Agent Orange during active service, consideration must be given to whether service connection for hypertension is warranted as a result of that exposure. In the past few years, VA has summarized National Academy of Science (NAS) Updates with regard to Agent Orange. A 2012 Update again placed hypertension in the category of "limited or suggestive" evidence of an association to herbicide exposure. See 79 Fed. Reg. 20308, 20309-20310 (April 11, 2014). Review of the claims file reveals that the Veteran receives treatment from VA and that the most recent VA treatment record associated with the claims file is dated in April 2013. In addition, an April 2013 VA treatment record reveals that the Veteran is treated by a primary care provider (Dr. J.C.) and a cardiologist (Dr. J.Y.) at University of Tennessee as well as other non-VA providers, including Drs. C.P., H., F. and S. The most recent non-VA treatment record associated with the claims file is dated in February 2012. As such, on remand, attempts must be made to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since April 2013 and all adequately identified non-VA treatment records not already associated with the record, after obtaining any necessary authorization. See 38 C.F.R. § 3.159. 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. After obtaining any necessary authorization, attempt to obtain and associate with the claims file complete treatment records regarding the Veteran from University of Tennessee, including from Drs. J.C. and J.Y., and from all other adequately identified private providers including Drs. C.P., H., F., and S. 2. Take all appropriate action to obtain and associate with the claims file all VA medical records regarding the Veteran dated since April 2013. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 3. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed peripheral vascular disease of the lower extremities and hypertension. Copies of all pertinent records should be made available to the examiner for review. The examiner is asked to furnish an opinion with respect to the following questions: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's peripheral vascular disease of the lower extremities is related to the Veteran's military service, to include his in-service exposure to herbicides. (b) is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's peripheral vascular disease of the lower extremities caused by any of his service-connected disabilities, to include type 2 diabetes mellitus, peripheral neuropathy, kidney disease, and coronary artery disease with angina? (c) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's peripheral vascular disease of the lower extremities was aggravated any of his service-connected disabilities, to include type 2 diabetes mellitus, peripheral neuropathy, kidney disease, and coronary artery disease with angina? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. (d) Is it as least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed hypertension had its onset in service, manifest within one year of separation from service in June 1966 or is otherwise related to any incident of his active duty service, specifically to include as a result of conceded herbicide exposure? The examiner must specifically reference, in the opinion rationale, the National Academy of Sciences (NAS) Veterans and Agent Orange Updates, to include in 2010 and 2012, which stated that there was "limited or suggestive" evidence of an association between hypertension and herbicide exposure. In addition, the examiner must discuss whether they find the NAS Updates to be persuasive and weigh the relative risks presented by the Veteran's presumed Agent Orange exposure and other relevant factors. The examiner is advised that, although VA has not determined that hypertension qualifies for presumptive service connection based on herbicide exposure, this does not preclude a nexus to service. Instead, the examiner must consider all pertinent evidence, and offer an opinion as to whether the Veteran's hypertension is due to such exposure. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide 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). 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs