Citation Nr: 1756918 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-07 473 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, including as due to herbicide exposure. 2. Entitlement to service connection for Charcot disease, including as due to herbicide exposure or diabetes mellitus, type II. 3. Entitlement to service connection for a kidney disorder, including as due to herbicide exposure or diabetes mellitus, type II. 4. Entitlement to service connection for a left foot disorder, including as due to Charcot disease. 5. Entitlement to service connection for a left leg disorder, to include a tibia disorder, including as due to Charcot disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1964 to October 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the RO in Jackson, Mississippi. The issues on appeal were previously before the Board in June 2016, where they were remanded for additional development. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the instant decision grants service connection for diabetes mellitus, type II, and Charcot disease, and remands the remaining issues on appeal, the Board need not address Remand compliance at this time. The Veteran testified from Jackson, Mississippi, at an April 2016 Travel Board hearing before a Veterans Law Judge (VLJ). The hearing transcript has been associated with the record. The undersigned VLJ is not the VLJ who presided over the April 2016 hearing. In a letter dated August 2017, the Veteran was advised of the right to have another hearing before a new VLJ, as the previous VLJ was no longer with the Board. The Veteran was informed that if no request for a new hearing was received within 30 days from the date of the letter, the Board would assume that the Veteran did not want another hearing and proceed with the appeal. In a subsequent October 2017 letter, the Veteran waived the right to have a new hearing before the Board. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). The issues of service connection for kidney, left foot, and left leg disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). In an October 2017 letter, the Veteran raised the issues of service connection for congestive heart failure and colon cancer, which have not been adjudicated by the AOJ; therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. During service an aircraft on which the Veteran was riding made an emergency landing in the Republic of Vietnam at Da Nang Harbor, requiring the Veteran to spend the day in the Republic of Vietnam. 2. The Veteran is currently diagnosed with diabetes mellitus, type II. 3. The Veteran is currently diagnosed with Charcot disease. 4. The Charcot disease is proximately due to or the result of the diabetes mellitus, type II. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a) (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for Charcot disease, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 3.326 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for diabetes mellitus, type II, and Charcot disease, which is a total grant of benefits as to those issues, and remands the remaining issues on appeal, no further discussion of VA's duties to notify and to assist is necessary. Service Connection Law and Regulation Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Diabetes mellitus, type II, and Charcot disease (as an organic disease of the nervous system) are chronic diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, 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), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Herbicide (Agent Orange) Exposure After a review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran set foot in the Republic of Vietnam. The parties agree that the Veteran was not stationed in the Republic of Vietnam during active service; rather, the evidence, to include service personnel records and the Veteran's own lay statements and testimony, shows that during service the Veteran was stationed in Okinawa, Japan. Per the Veteran's credible April 2016 Travel Board hearing testimony, and other lay statements of record, the Veteran testified that on or about September 1966 the Veteran went on leave to Thailand. Per a February 2011 letter from a former service member who was stationed with the Veteran, the Veteran often took leave when the schedule allowed. Further, the fellow service member specifically remembered the Veteran going on this trip, as when the Veteran returned to Okinawa he told the service member the memorable story discussed below. In order to return to Okinawa at the end of the leave, the Veteran testified to traveling in a C-130 that left from Bangkok and was scheduled to make stops in "Ubon, Udon, and Korat." The Veteran testified that while flying over the South China Sea the right engine of the airplane caught fire and they were forced to land at Da Nang Harbor in the Republic of Vietnam. As the C-130 was out of commission, upon landing the Veteran and others on the aircraft went to the Officer's Club for dinner. Upon paying for the ordered meal in American dollars, the Veteran was given change in the form of military payment certificates, which were not used in Okinawa. As the Veteran had no use for the certificates, the Veteran kept them as a souvenir. The Veteran photocopied one of the certificates and provided the copy to VA as evidence of setting foot in the Republic of Vietnam. The Veteran further testified that once the C-130 was repaired they continued their journey, which took them to Clark Air Force Base in the Philippines. A copy of the Veteran's passport was received by VA, which shows that the Veteran entered Clark Air Force Base on September 19, 1966. Per the Veteran's testimony, approximately two days later they returned to Okinawa. Considering the Veteran's credibly testimony, the fact that the Veteran has consistently reiterated the above story throughout the course of this appeal, the supporting documentation, and the fact that a fellow service member remembers being told the above story by the Veteran immediately after it happened, the Board finds that during service the Veteran set foot in the Republic of Vietnam, at Da Nang Harbor, after the aircraft he was aboard had to make an emergency landing. As the Veteran had boots on the ground in the Republic of Vietnam, the Veteran is presumed to have been exposed to the herbicide Agent Orange. Service Connection for Diabetes Mellitus, Type II Multiple VA and private treatment records reflect that the Veteran is currently diagnosed with diabetes mellitus, type II. As discussed above, in the instant decision the Board finds that the Veteran set foot in the Republic of Vietnam after making an emergency aircraft landing at Da Nang Harbor; therefore, the Veteran is presumed to have been exposed to the herbicide Agent Orange. Because diabetes mellitus, type II, is presumptively associated with herbicide exposure, service connection for diabetes mellitus type II as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). Service Connection for Charcot Disease Throughout the course of this appeal, the Veteran has advanced having Charcot disease that was either caused by exposure to the herbicide Agent Orange during service, or that was caused or aggravated by the now service-connected diabetes mellitus, type II. After a review of all the evidence of record, the Board initially finds that the Veteran is currently diagnosed with Charcot disease. Multiple VA and private treatment records report such a diagnosis. The Board next finds that the evidence is at least in equipoise on the question of whether the currently diagnosed Charcot disease was caused or aggravated by the now service-connected diabetes mellitus, type II. The Veteran did not receive a VA Charcot disease examination or medical nexus opinion during the course of this appeal; however, per an April 2005 VA treatment record, a VA physician specifically indicated that the Charcot disease was secondary to diabetes. Considering the VA physician's assessment of nexus between Charcot disease and diabetes recorded in this treatment record, and absent competent medical opinion evidence to the contrary, the Board finds that the evidence of record is at least in equipoise on the question of whether the Veteran's currently diagnosed Charcot disease is proximately due to or the result of the now service-connected diabetes mellitus, type II. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for Charcot disease, as secondary to the now service-connected diabetes mellitus, type II, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. As service connection for Charcot disease has been granted on a secondary basis (under 38 C.F.R. § 3.310), there is no need to discuss entitlement to service connection on a direct, presumptive, or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact for the Board to decide. See 38 U.S.C. § 7104. ORDER Service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. Service connection for Charcot disease, as secondary to the service-connected diabetes mellitus, type II, is granted. REMAND Service Connection for Kidney, Left Foot, and Left Leg Disorders VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Veteran has not received VA kidney or left foot or leg examinations in the instant matter. During the course of this appeal the Veteran has consistently advanced having a kidney disorder related to either herbicide exposure or the now service-connected diabetes mellitus, type II. Further, the Veteran has also advanced having additional left foot and leg disorders caused by the now service-connected Charcot disease. As the Veteran's VA and private medical records reflect that the Veteran may have one or more kidney and/or left foot/leg disorders, the Board finds remand to schedule the appropriate VA examinations to be warranted. Additionally, VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issue. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the AOJ should request that the Veteran provide any relevant outstanding private treatment records not already associated with the record. Further, the AOJ should obtain any outstanding VA treatment records for the period from February 2013. Accordingly, the issues of service connection for kidney, left foot, and left leg disorders are REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request information as to any private kidney, left foot, and/or left leg treatment received during the relevant period on appeal. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the Veteran's relevant disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's kidney, left foot, and left leg, not already of record, for the period from February 2013. 3. Schedule the appropriate VA examinations. The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiners should provide the following opinions: Kidney Disorder A) Does the Veteran have a currently diagnosed kidney disorder? B) If the Veteran does have a currently diagnosed kidney disorder, is it at least as likely as not (50 percent or higher degree of probability) that the kidney disorder had its onset during a period of active service, including as due to herbicide exposure? C) If the Veteran does have a currently diagnosed kidney disorder, is it at least as likely as not (50 percent or higher degree of probability) that the service-connected diabetes mellitus, type II, caused the currently diagnosed kidney disorder? D) If the Veteran does have a currently diagnosed kidney disorder, is it at least as likely as not (50 percent or higher degree of probability) that the service-connected diabetes mellitus, type II, aggravated (that is, worsened in severity) the currently diagnosed kidney disorder? Left Foot Disorder A) Does the Veteran have a currently diagnosed left foot disorder other than Charcot disease? B) If the Veteran does have a currently diagnosed left foot disorder, other than Charcot disease, is it at least as likely as not (50 percent or higher degree of probability) that the service-connected Charcot disease caused the currently diagnosed left foot disorder? C) If the Veteran does have a currently diagnosed left foot disorder, other than Charcot disease, is it at least as likely as not (50 percent or higher degree of probability) that the service-connected Charcot disease aggravated (that is, worsened in severity) the currently diagnosed left foot disorder? Left Leg Disorder A) Does the Veteran have a currently diagnosed left leg disorder, to include a disorder of the left tibia, other than Charcot disease? B) If the Veteran does have a currently diagnosed left leg disorder, other than Charcot disease, is it at least as likely as not (50 percent or higher degree of probability) that the service-connected Charcot disease caused the currently diagnosed left leg disorder? C) If the Veteran does have a currently diagnosed left leg disorder, other than Charcot disease, is it at least as likely as not (50 percent or higher degree of probability) that the service-connected Charcot disease aggravated (that is, worsened in severity) the currently diagnosed left leg disorder? If it is the examiner's opinion that there is aggravation of any disorder, he or she should identify the baseline level of severity of the disability prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. "Aggravation" is defined for legal purposes as a worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its normal progression. 4. Then, readjudicate the issues of service connection for kidney, left foot, and left leg disorders. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs